exv4w2



 





Exhibit 4.2




 

 






CHAMPION ENTERPRISES, INC.,

Issuer




AND




WELLS FARGO BANK, N.A.,

Trustee




 






INDENTURE




Dated as of [      ], 2007




 






Subordinated Debt Securities




 

 






 









 












CROSS-REFERENCE TABLE*




	 	 	 
	Section of	 	 
	Trust Indenture Act	 	Section of
	of 1939, as amended	 	Indenture
	 
	310(a) 
	 	7.09
	310(b) 
	 	7.08
	 
	 	7.10
	310(c) 
	 	Inapplicable
	311(a) 
	 	7.13
	311(b) 
	 	7.13
	311(c) 
	 	Inapplicable
	312(a) 
	 	5.01
	 
	 	5.02(a)
	312(b) 
	 	5.02(c)
	312(c) 
	 	5.02(c)
	313(a) 
	 	5.04(a)
	313(b) 
	 	5.04(b)
	313(c) 
	 	5.04(a)
	 
	 	5.04(b)
	313(d) 
	 	5.04(c)
	314(a) 
	 	5.03
	314(b) 
	 	Inapplicable
	314(c) 
	 	13.07
	314(d) 
	 	Inapplicable
	314(e) 
	 	13.07
	314(f) 
	 	Inapplicable
	315(a) 
	 	7.01
	315(b) 
	 	7.14
	315(c) 
	 	7.01(a)
	315(d) 
	 	7.01(b)
	315(e) 
	 	6.07
	316(a) 
	 	6.06
	 
	 	8.04
	316(b) 
	 	6.04
	316(c) 
	 	8.01
	317(a) 
	 	6.02
	317(b) 
	 	4.03
	318(a)
	 	13.09








 




			
	*	 	This Cross-Reference Table does not constitute part of the
Indenture and shall not have any bearing on the interpretation of any of its
terms or provisions.




 









 










TABLE OF CONTENTS*




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	PARTIES	 	 	1	 
	 
	 	 	 	 	 	 
	RECITALS	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE I. DEFINITIONS

	 
	 	 	 	 	 	 
	SECTION 1.01
	 	Definitions of Terms	 	 	1	 
	 
	 	Affiliate	 	 	1	 
	 
	 	Authenticating Agent	 	 	2	 
	 
	 	Bankruptcy Law	 	 	2	 
	 
	 	Board of Directors	 	 	2	 
	 
	 	Board Resolution	 	 	2	 
	 
	 	Business Day	 	 	2	 
	 
	 	Certificate	 	 	2	 
	 
	 	Company	 	 	2	 
	 
	 	Corporate Trust Office	 	 	2	 
	 
	 	Currency Agreement	 	 	2	 
	 
	 	Custodian	 	 	2	 
	 
	 	Default	 	 	2	 
	 
	 	Depositary	 	 	3	 
	 
	 	Event of Default	 	 	3	 
	 
	 	Exchange Act	 	 	3	 
	 
	 	Global Security	 	 	3	 
	 
	 	Governmental Obligations	 	 	3	 
	 
	 	Guarantee	 	 	3	 
	 
	 	Guaranty Agreement	 	 	4	 
	 
	 	“herein”, “hereof” and “hereunder”	 	 	4	 
	 
	 	Indenture	 	 	4	 
	 
	 	Interest	 	 	4	 
	 
	 	Interest Payment Date	 	 	4	 
	 
	 	Officer	 	 	4	 
	 
	 	Officers’ Certificate	 	 	4	 
	 
	 	Opinion of Counsel	 	 	4	 
	 
	 	Original Issue Discount Security	 	 	4	 
	 
	 	Outstanding	 	 	4	 
	 
	 	Person	 	 	5	 
	 
	 	Predecessor Security	 	 	5	 








 




			
	*	 	This Table of Contents does not constitute part of the Indenture
and shall not have any bearing upon the interpretation of any of its terms or
provisions.




 









 










	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	 

	 	Responsible Officer
	 	 	5	 
	 

	 	Securities
	 	 	5	 
	 

	 	Securityholder
	 	 	5	 
	 

	 	Subsidiary
	 	 	5	 
	 

	 	Subsidiary Guarantor
	 	 	5	 
	 

	 	Subsidiary Guarantee
	 	 	6	 
	 

	 	Trustee
	 	 	6	 
	 

	 	Trust Indenture Act
	 	 	6	 
	 

	 	Yield to Maturity
	 	 	6	 
	 
	 	 	 	 	 	 
	ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES

	 
	 	 	 	 	 	 
	SECTION 2.01

	 	Designation and Terms of Securities
	 	 	6	 
	SECTION 2.02

	 	Form of Securities and Trustee’s Certificate
	 	 	9	 
	SECTION 2.03

	 	Denominations; Provisions for Payment
	 	 	9	 
	SECTION 2.04

	 	Execution and Authentication.
	 	 	11	 
	SECTION 2.05

	 	Registration of Transfer and Exchange
	 	 	12	 
	SECTION 2.06

	 	Temporary Securities
	 	 	13	 
	SECTION 2.07

	 	Mutilated, Destroyed, Lost or Stolen Securities
	 	 	13	 
	SECTION 2.08

	 	Cancellation
	 	 	14	 
	SECTION 2.09

	 	Benefits of Indenture
	 	 	15	 
	SECTION 2.10

	 	Authenticating Agent
	 	 	15	 
	SECTION 2.11

	 	Global Securities
	 	 	15	 
	SECTION 2.12

	 	No Obligation of the Trustee
	 	 	17	 
	 
	 	 	 	 	 	 
	ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS

	 
	 	 	 	 	 	 
	SECTION 3.01

	 	Redemption
	 	 	18	 
	SECTION 3.02

	 	Notice of Redemption
	 	 	18	 
	SECTION 3.03

	 	Payment Upon Redemption
	 	 	19	 
	SECTION 3.04

	 	Sinking Fund
	 	 	20	 
	SECTION 3.05

	 	Satisfaction of Sinking Fund Payments with Securities
	 	 	20	 
	SECTION 3.06

	 	Redemption of Securities for Sinking Fund
	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE IV.
CERTAIN COVENANTS

	 
	 	 	 	 	 	 
	SECTION 4.01

	 	Payment of Principal, Premium and Interest
	 	 	21	 
	SECTION 4.02

	 	Maintenance of Office or Agency
	 	 	21	 
	SECTION 4.03

	 	Paying Agents
	 	 	21	 
	SECTION 4.04

	 	Appointment to Fill Vacancy in Office of Trustee
	 	 	22	 
	SECTION 4.05

	 	Compliance with Consolidation Provisions
	 	 	22	 
	SECTION 4.06

	 	Statement by Officers as to Default
	 	 	23	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE V.
SECURITYHOLDERS’ LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE

	 
	 	 	 	 	 	 
	SECTION 5.01

	 	Company to Furnish Trustee Names and Addresses of Securityholders
	 	 	23	 
	SECTION 5.02

	 	Preservation of Information; Communications with Securityholders
	 	 	23	 
	SECTION 5.03

	 	Reports by the Company
	 	 	24	 
	SECTION 5.04

	 	Reports by the Trustee
	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT

	 
	 	 	 	 	 	 
	SECTION 6.01

	 	Events of Default
	 	 	25	 
	SECTION 6.02

	 	Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	27	 
	SECTION 6.03

	 	Application of Moneys Collected
	 	 	29	 
	SECTION 6.04

	 	Limitation on Suits
	 	 	29	 
	SECTION 6.05

	 	Rights and Remedies Cumulative; Delay or Omission Not Waiver
	 	 	30	 
	SECTION 6.06

	 	Control by Securityholders
	 	 	31	 
	SECTION 6.07

	 	Undertaking to Pay Costs
	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE VII.
CONCERNING THE TRUSTEE

	 
	 	 	 	 	 	 
	SECTION 7.01

	 	Certain Duties and Responsibilities of Trustee
	 	 	32	 
	SECTION 7.02

	 	Certain Rights of Trustee
	 	 	33	 
	SECTION 7.03

	 	Trustee Not Responsible for Recitals or Issuance or Securities
	 	 	35	 
	SECTION 7.04

	 	May Hold Securities
	 	 	35	 
	SECTION 7.05

	 	Moneys Held in Trust
	 	 	35	 
	SECTION 7.06

	 	Compensation and Reimbursement
	 	 	36	 
	SECTION 7.07

	 	Reliance on Officers’ Certificate
	 	 	36	 
	SECTION 7.08

	 	Disqualification; Conflicting Interests
	 	 	37	 
	SECTION 7.09

	 	Corporate Trustee Required; Eligibility
	 	 	37	 
	SECTION 7.10

	 	Resignation and Removal; Appointment of Successor
	 	 	37	 
	SECTION 7.11

	 	Acceptance of Appointment By Successor
	 	 	39	 
	SECTION 7.12

	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	40	 
	SECTION 7.13

	 	Preferential Collection of Claims Against the Company
	 	 	40	 
	SECTION 7.14

	 	Notice of Defaults
	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS

	 
	 	 	 	 	 	 
	SECTION 8.01

	 	Evidence of Action by Securityholders
	 	 	41	 
	SECTION 8.02

	 	Proof of Execution by Securityholders
	 	 	42	 
	SECTION 8.03

	 	Who May be Deemed Owners
	 	 	42	 
	SECTION 8.04

	 	Certain Securities Owned by Company Disregarded
	 	 	42	 
	SECTION 8.05

	 	Actions Binding on Future Securityholders
	 	 	43	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE IX.
SUPPLEMENTAL INDENTURES

	 
	 	 	 	 	 	 
	SECTION 9.01

	 	Supplemental Indentures Without the Consent of Securityholders
	 	 	43	 
	SECTION 9.02

	 	Supplemental Indentures With Consent of Securityholders
	 	 	45	 
	SECTION 9.03

	 	Effect of Supplemental Indentures
	 	 	45	 
	SECTION 9.04

	 	Securities Affected by Supplemental Indentures
	 	 	46	 
	SECTION 9.05

	 	Execution of Supplemental Indentures
	 	 	46	 
	SECTION 9.06

	 	Conformity with Trust Indenture Act
	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE X.
SUCCESSOR CORPORATION

	 
	 	 	 	 	 	 
	SECTION 10.01

	 	Company May Consolidate, Etc.
	 	 	47	 
	SECTION 10.02

	 	Successor Substituted
	 	 	47	 
	SECTION 10.03

	 	Evidence of Consolidation, Etc. to Trustee
	 	 	48	 
	 
	 	 	 	 	 	 
	ARTICLE XI.
SATISFACTION AND DISCHARGE

	 
	 	 	 	 	 	 
	SECTION 11.01

	 	Satisfaction and Discharge of Indenture
	 	 	48	 
	SECTION 11.02

	 	Discharge of Obligations
	 	 	49	 
	SECTION 11.03

	 	Deposited Moneys to be Held in Trust
	 	 	49	 
	SECTION 11.04

	 	Payment of Moneys Held by Paying Agents
	 	 	49	 
	SECTION 11.05

	 	Repayment to Company
	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS

	 
	 	 	 	 	 	 
	SECTION 12.01

	 	No Recourse
	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE XIII.
MISCELLANEOUS PROVISIONS

	 
	 	 	 	 	 	 
	SECTION 13.01

	 	Effect on Successors and Assigns
	 	 	51	 
	SECTION 13.02

	 	Actions by Successor
	 	 	51	 
	SECTION 13.03

	 	Notices
	 	 	51	 
	SECTION 13.04

	 	Notice to Holders of Securities; Waiver
	 	 	51	 
	SECTION 13.05

	 	Governing Law
	 	 	52	 
	SECTION 13.06

	 	Effect of Headings and Table of Contents
	 	 	52	 
	SECTION 13.07

	 	Compliance Certificates and Opinions
	 	 	52	 
	SECTION 13.08

	 	Payments on Business Days
	 	 	53	 
	SECTION 13.09

	 	Conflict with Trust Indenture Act
	 	 	53	 
	SECTION 13.10

	 	Counterparts
	 	 	53	 
	SECTION 13.11

	 	Separability
	 	 	53	 
	SECTION 13.12

	 	Assignment
	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE XIV.
SUBORDINATION OF SECURITIES







 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 14.01

	 	Subordination Terms
	 	 	54	 







 











 





    
      INDENTURE, dated as of [                    ], 2007, among Champion Enterprises, Inc., a Michigan corporation
(the “Company”), and Wells Fargo Bank, N.A., as trustee (the “Trustee”):




          WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of unsecured subordinated debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be
issued from time to time in one or more series as in this Indenture provided, as registered
Securities without coupons, to be authenticated by the certificate of the Trustee;




          WHEREAS, to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the execution of this
Indenture; and




          WHEREAS, all things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.




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




 ARTICLE I.




DEFINITIONS




          I.1 Definitions of Terms.




          The terms defined in this Section (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference therein defined in the Securities Act
of 1933, as amended (except as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this instrument.




     “Affiliate” means, with respect to a specified Person, (a) any Person directly or indirectly
owning, controlling or holding with power to vote 10% or more of the outstanding voting securities
or other ownership interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person



 









 




directly or indirectly controlling, controlled by, or under common control with the specified Person, (d) a
partnership in which the specified Person is a general partner, (e) any officer or director of the
specified Person, and (f) if the specified Person is an individual, any entity of which the
specified Person is an officer, director or general partner.




          “Authenticating Agent” means an authenticating agent with respect to all or any of the series
of Securities appointed with respect to all or any series of the Securities by the Trustee pursuant
to Section 2.10.




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




          “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee of such Board.




          “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.




          “Business Day” means, with respect to any series of Securities, any day other than a day on
which Federal or State banking institutions in the City of New York or place of payment, are
authorized or obligated by law, executive order or regulation to close.




          “Certificate” means a certificate signed by the principal executive officer, the principal
financial officer, the Treasurer or the principal accounting officer of the Company. The
Certificate need not comply with the provisions of Section 13.07.




          “Company” means Champion Enterprises, Inc., a corporation duly organized and existing under
the laws of the State of Michigan, and, subject to the provisions of Article Ten, shall also
include its successors and assigns.




          “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 Wells Fargo Bank, N.A., Corporate Trust Services, MAC N9311-110, 625 Marquette Ave. S.,
Minneapolis, MN 55479.




          “Currency Agreement” means in respect of a Person any foreign exchange contract, currency swap
agreement or other similar agreement designed to protect such Person against fluctuations in
currency values.




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




2









 








          “Default” means any event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.




          “Depositary” means, with respect to Securities of any series, for which the Company shall
determine that such Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.




          “Event of Default” means, with respect to Securities of a particular series any event
specified in Section 6.01, continued for the period of time, if any, therein designated.




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




          “Global Security” means, with respect to any series of Securities, a Security executed by the
Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction,
all in accordance with the Indenture, which shall be registered in the name of the Depositary or
its nominee.




          “Governmental Obligations” means securities that are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not callable or redeemable at
the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of such depositary
receipt; provided, however, 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 Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.




          “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 (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such indebtedness or other obligation of
such Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (b) entered into for the purpose 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



3









 






 “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” shall mean any Person Guaranteeing any obligation.



          “Guaranty Agreement” means a supplemental indenture, in a form satisfactory to the Trustee,
pursuant to which a Person Guarantees the Company’s obligations with respect to a series of
Securities.




          “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.




          “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.




          “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 installment of interest on a Security
of a particular series, means the date specified in such Security or in a Board Resolution or in an
indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, any Executive Vice
President, any Vice President, the Treasurer or the Secretary of the Company.




          “Officers’ Certificate” means a certificate signed by two officers that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions thereof.




          “Opinion of Counsel” means an opinion in writing of legal counsel, who may be an employee of
or counsel for the Company that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions thereof.




          “Original Issue Discount Security” means any Security which (i) is issued at a price lower
than the amount payable upon the maturity thereof and (ii) provides for an amount less than the
principal amount thereof to be due and payable upon redemption or a declaration of acceleration of
the maturity thereof pursuant to Section 6.01.




          “Outstanding”, when used with reference to Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or portions thereof for the
payment or redemption of which moneys or Governmental Obligations in the




4









 







necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided, however, that if such Securities or portions of such
Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article Three provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.




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




          “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 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or
stolen Security.




          “Responsible Officer” when used with respect to the Trustee means any officer within the
Corporate Trust Department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Person who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of his or
her knowledge of and familiarity with the particular subject.




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




          “Securityholder”, “holder of Securities”, “registered holder”, or other similar term, means
the Person or Persons in whose name or names a particular Security shall be registered on the books
of the Company kept for that purpose in accordance with the terms of this Indenture.




          “Subsidiary” means, in respect of any Person, any corporation, association, partnership,
limited liability company, 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 (a)
such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more
Subsidiaries of such Person.




          “Subsidiary Guarantor” means any Subsidiary of the Company that provides a Guarantee of the
obligations of the Company with respect to any series of Securities or enters into a Guaranty
Agreement that becomes a Subsidiary Guarantor.




5









 








          “Subsidiary Guarantee” means a Guarantee, including any Guaranty Agreement, provided by a
Subsidiary Guarantor of the Company’s obligations with respect to any series of Securities.




          “Trustee” means Wells Fargo Bank, N.A., and, subject to the provisions of Article Seven, shall
also include its successors and assigns, and, if at any time there is more than one Person acting
in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the trustee with respect to that
series.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in effect at the
date of execution of this instrument, except as provided in Sections 9.01, 9.02, and 10.01.




          “Yield to Maturity” means the yield to maturity on a series of Securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted financial practice.




ARTICLE II.




ISSUE, DESCRIPTION, TERMS, EXECUTION,

REGISTRATION AND EXCHANGE OF SECURITIES




          II.1 Designation and Terms of Securities.




          (a) The aggregate principal amount of Securities that may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate
principal amount of Securities of that series from time to time authorized by or pursuant to a
Board Resolution of the Company or pursuant to one or more indentures supplemental hereto. Prior
to the initial issuance of Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company, and set forth in an Officers’ Certificate of the Company, or
established in one or more indentures supplemental hereto:





     (1) the title of the Security of the series (which shall distinguish the Securities of the
series from all other Securities);




     (2) any limit upon the aggregate principal amount of the Securities of that series that 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 that series);



6









 






     (3) whether any of the Securities of the series will be issuable in whole or in part in
temporary or permanent global form or in the form of book-entry securities and, in such
case, the identity for the Depositary for such series;




     (4) the date or dates on which the principal of the Securities of the series is payable;




     (5) the rate or rates, which may be fixed or variable, at which the Securities of the series
shall bear interest or the manner of calculation of such rate or rates, if any;




     (6) the date or dates from which such interest shall accrue, the Interest Payment Dates on
which such interest will be payable or the manner of determination of such Interest Payment
Dates and the record date for the determination of holders to whom interest is payable on
any such Interest Payment Dates or the manner of determination of such record dates;




     (7) the place or places where payments with respect to the Securities of the series shall be
payable;




     (8) the right, if any, to defer payment of interest on the debt securities and the maximum
length of any deferral period;




     (9) the date, if any, after which, the price or prices at which and the terms and conditions
upon which, Securities of the series may be redeemed, in whole or in part, at the option of
the Company;




     (10) the obligation, if any, of the Company to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous provisions (including payments made in cash in
participation of future sinking fund obligations) or at the option of a holder thereof and
the date or dates, if any, on which, the price or prices at which, and the terms and
conditions upon which, Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;




     (11) the subordination terms of the Securities of the series;




     (12) if other than denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, the denominations in which the Securities of the series shall be issuable;




     (13) whether the series of Securities will be subject to any mandatory or optional sinking
fund or similar provisions;




     (14) the currency or currency units in which payment of the principal of and any premium and
interest on the Securities of the series shall be payable;



7









 






     (15) whether and under what circumstances the Company will pay additional amounts on the
Securities of the series held by non-U.S. persons in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional amounts;




     (16) the terms pursuant to which the Securities of the series are subject to defeasance and
satisfaction and discharge;




     (17) any addition to, or modification or deletion of, any Events of Default or covenants
provided for with respect to the Securities of the series;




     (18) the terms and conditions, if any, pursuant to which the Securities of the series are
secured;




     (19) whether the Securities of the series will be convertible into shares of common stock or
other securities of the Company and, if so, the terms and conditions upon which such
Securities will be so convertible, including whether conversion is mandatory, at the option
of the holder, or at the option of the Company, the conversion price, the conversion period
and any provisions pursuant to which the number of shares of common stock or other securities of the Company to be received by the holders of such
series of Securities would be subject to adjustment;




     (20) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.01;




     (21) any provisions granting special rights to holders when a specified event occurs;




     (22) any special tax implications of the Securities of the series, including provisions for
Original Issue Discount Securities, if offered;




     (23) the form of the Securities of the series including the form of the Certificate of
Authentication for such series; and




     (24) any and all other terms with respect to such series including any terms which may be
required by or advisable under United States laws or regulations or advisable in connection
with the marketing of Securities of that series.



          All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.



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          If any of the terms of the series are established by action taken pursuant to a Board
Resolution of the Company, a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate of the Company setting forth the terms of the series.




          Securities of any particular series may be issued at various times, with different dates on
which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different redemption dates. Unless otherwise provided,
a series may be reopened for issuances of additional Securities of such series.




          SECTION 2.2 Form of Securities and Trustee’s Certificate.




          The Securities of any series and the Trustee’s certificate of authentication to be borne by
such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution of the Company and as set forth
in an Officers’ Certificate of the Company and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed, lithographed or
engraved thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock exchange on which
Securities of that series may be listed, or to conform to usage.




          SECTION
2.3 Denominations; Provisions for Payment.




          The Securities shall be issuable as registered Securities and in the denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(12). The
Securities of a particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. Unless otherwise provided pursuant to Section 2.01, the
principal of and the interest on the Securities of any series, as well as any premium thereon in
case of redemption thereof prior to maturity, shall be payable in the coin or currency of the
United States of America that at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose in the
United States, unless otherwise specified with
respect to any series of Securities, shall be the Corporate Trust Office of the Trustee. Each
Security shall be dated the date of its authentication. Unless otherwise provided pursuant to
Section 2.01, interest on the Securities shall be computed on the basis of a 360-day year composed
of twelve 30-day months.




9









 








          The interest installment on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment. Unless otherwise
provided in the terms of a series of Securities, at the option of the Company, payment of interest
may be mailed by check to the holders of the Securities of any series at their respective addresses
set forth in the Security Register (as hereinafter defined) or wired if held by book entry at
Depository Trust Company. In the event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such
Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.




          Any interest on any Security that is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date for Securities of the same 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 shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:





     (1) The Company may make payment of any Defaulted Interest on Securities to the Persons in
whose names such Securities (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 such
Security 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, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date
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
mailed, first class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), 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 mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date and shall be no longer payable
pursuant to the following clause (2).




     (2) The Company may make payment of any Defaulted Interest on any Securities in any other
lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may



10









 







be required by such exchange, 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.



          Unless otherwise set forth in a Board Resolution of the Company or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01
hereof, the term “regular record date” as used in this Section with respect to a series of
Securities with respect to any Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the first day of a month, or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.




          Subject to the foregoing provisions of this Section, each Security of a series delivered under
this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series
shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such
other Security.




          SECTION 2.4 Execution and Authentication.




          Two Officers shall sign the Securities for the Company by manual or facsimile signature.




          If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.




          A Security shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.




          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 to the Trustee for
authentication, together with a written order of the Company for the authentication and delivery of
such Securities, signed by two Officers, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.




          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 7.01) shall be fully protected in relying upon, an Opinion of Counsel and an Officers’
Certificate stating that the form and terms thereof have been established in conformity with the
provisions of this Indenture.




11









 








          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 own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.




          SECTION 2.5 Registration of Transfer and Exchange.




          (a) Securities of any series may be exchanged upon presentation thereof at the office or agency of
the Company designated for such purpose in the United States, for other Securities of such series of authorized
denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, all as provided in this Section. In
respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange therefor the Security or
Securities of the same series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.




          (b) The Company shall keep, or cause to be kept, at its office or agency designated for such
purpose in the United States, or such other location designated by the Company a register or
registers (herein referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. Unless otherwise specified in a supplemental indenture, the Trustee is
hereby appointed as “Security Registrar” for the purpose of registering Securities and transfer of
Securities of each series.




          Upon surrender for transfer of any Security at the office or agency of the Company designated
for such purpose, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new Security or Securities of
the same series as the Security presented for a like aggregate principal amount.




          All Securities presented or surrendered for exchange or registration of transfer, as provided
in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by
a written instrument or instruments of transfer, in form satisfactory to the Company or the
Security Registrar, duly executed by the registered holder or by such holder’s duly authorized
attorney in writing.




          (c) No service charge shall be made for any exchange or registration of transfer of Securities, or
issue of new Securities in case of partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, the second paragraph of Section 3.03 and Section
9.04 not involving any transfer.





12












 





          (d) The Company shall not be required (i) to issue, exchange or register the transfer of any
Securities during a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of less than all the Outstanding Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Securities of any series or portions thereof called for redemption except the
unredeemed portion of any Securities of any series being redeemed in part. The provisions of this
Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.



          SECTION 2.6 Temporary Securities.



          Pending the preparation of definitive Securities of any series, the Company may execute, and
the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities of such series. Without unnecessary delay the
Company will execute and will furnish definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for the purpose, and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such series, unless the Company
advises the Trustee to the effect that definitive Securities need not be executed and furnished
until further notice from the Company. Until so exchanged, the temporary Securities of such series
shall be entitled to the same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.



          SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Securities.



          In case any temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for
the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or
stolen. In every case the applicant for a substituted Security shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company
and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s
Security and of the ownership thereof. The Trustee may authenticate



13









 







any such substituted Security and deliver the same upon the written request or authorization of any
Officer of the Company. Upon the issuance of any substituted Security, 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 the Trustee) connected
therewith. In case any Security that has matured or is about to mature shall become mutilated or
be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Security and of the ownership thereof.



          Every replacement Security issued pursuant to the provisions of this Section shall constitute
an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost
or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities
of the same series duly issued hereunder. All Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and
all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.



          SECTION 2.8 Cancellation.



          All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee
may dispose of canceled Securities in accordance with its standard procedures and deliver a
certificate of disposition to the Company. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.



          SECTION 2.9 Benefits of Indenture.



          Nothing in this Indenture or in the Securities, express or implied, shall give or be construed
to give to any Person, other than the parties hereto and the holders of the Securities (and, with
respect to the provisions of Article Fourteen, the holders of senior indebtedness) any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions



14









 







being for the sole benefit of the parties hereto and of the holders of the Securities (and, with
respect to the provisions of Article Fourteen, the holders of senior indebtedness).



          SECTION 2.10 Authenticating Agent.



          So long as any of the Securities of any series remain Outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee, with the consent
of the Company, shall have the right to appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series issued upon exchange,
transfer or partial redemption thereof, 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. All references in this Indenture to the authentication of Securities by
the Trustee shall be deemed to include authentication by an Authenticating Agent for such series.
Each Authenticating Agent shall be a corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the laws of any jurisdiction under which it
is organized or in which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to supervision or examination by
Federal or State authorities. If at any time any Authenticating Agent shall cease to be eligible
in accordance with these provisions, it shall resign immediately.



          Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility
of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder
as if originally named as an Authenticating Agent pursuant hereto.



          SECTION 2.11 Global Securities.



          (a) If the Company shall establish pursuant to Section 2.01 that the Securities of a particular
series are issuable as a Global Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent,
and shall be denominated in an amount equal to the aggregate principal amount of, such of the
Outstanding Securities of such series as shall be specified therein and that the aggregate amount
of Outstanding Securities represented thereby may from time to time be increased or reduced to
reflect exchanges, (ii) shall be registered in the name of the Depositary or its nominee, (iii)
shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and
(iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole



15









 







but not in part, only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary.” Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the written request signed in the name of the Company,
by two Officers thereof to be delivered to the Trustee pursuant to Section 2.04 or Section 2.06.



          (b) Notwithstanding the provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.05, only to another
nominee of the Depositary for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.



          (c) If at any time the Depositary for a series of the Securities notifies the Company that it is
unwilling or unable to continue as Depositary for such series or if at any time the Depositary for
such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be applicable to the Securities of
such series and the Company will execute, and subject to Section 2.05, the Trustee will
authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities of such series. In such event the Company will execute and subject to Section
2.05, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the
Company, will authenticate and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such Global Security. Upon
the exchange of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global Security pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to
the Persons in whose names such Securities are so registered.



          (d) If an Event of Default has occurred and is continuing with respect to a particular series
of the Securities, the Company may execute, and the Trustee, upon receipt of an Officers’
Certificate directing the authorization and delivery thereof, will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in authorized



16









 







denominations, and in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security.



          SECTION 2.12 No Obligation of the Trustee.



          (a) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global
Security, 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 Securities 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 or delivery of any Securities (or
other security or property) under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made to Holders in respect of the
Securities 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 Security). The rights of beneficial
owners in any Global Security 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.



          (b) The Trustee shall have no obligations or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or
among the Depositary participants, members or beneficial owners in any Global Security) other than
to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements
hereof.



ARTICLE III.




REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS




          SECTION 3.1 Redemption.



          The Company may redeem the Securities of any series issued hereunder on and after the dates
and in accordance with the terms established for such series pursuant to Section 2.01 hereof.



          SECTION 3.2 Notice of Redemption.



          (a) In case the Company shall desire to exercise such right to redeem all or, as the case may be, a
portion of the Securities of any series in accordance with the right reserved so to do, the Company
shall, or shall cause the Trustee to, give notice of such redemption to holders



17









 







of the Securities of such series to be redeemed by sending electronically or by mailing, first
class postage prepaid, a notice of such redemption not less than 30 days and not more than 60 days
before the date fixed for redemption of that series to such holders at their last addresses as they
shall appear upon the Security Register unless a shorter period is specified in the Securities to
be redeemed. Any notice that is sent in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder receives the notice. In any case,
failure duly to give such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any other series. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with any such restriction.



          Each such notice of redemption shall specify the date fixed for redemption and the redemption
price (or the manner of calculation thereof) at which Securities of that series are to be redeemed,
and shall state that payment of the redemption price of such Securities to be redeemed will be made
at the office or agency of the Company in the United States, upon presentation and surrender of such Securities, that
interest accrued to the date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in whole or in part shall specify
the particular Securities to be so redeemed. In case any Security is to be redeemed in part only,
the notice that relates to such Security shall state the portion of the principal amount thereof to
be redeemed, and shall state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.



          (b) If less than all the Securities of a series are to be redeemed, the Company shall give the
Trustee at least 30 days’ notice in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall
select, by lot on a pro rata basis or in such other manner as it shall deem appropriate and fair and that may provide
for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any
integral multiple thereof) of the principal amount of such Securities of a denomination larger than
$1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing
of the numbers of the Securities to be redeemed, in whole or in part.



          The Company may, if and whenever it shall so elect, by delivery of instructions signed on its
behalf by any Officer, instruct the Trustee or any paying agent to call all or any part of the
Securities of a particular series for redemption and to give notice of redemption in the manner set
forth in this Section, such notice to be in the name of the Company or its own name as the Trustee
or such paying agent may deem advisable. In any case in which notice of redemption is to be given
by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the case



18









 







may be, such Security
Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that
may be required under the provisions of this Section.



          SECTION 3.3 Payment Upon Redemption.



          (a) If the giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on
such Securities or portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption price and accrued
interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the
notice, said Securities shall be paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the applicable record date
pursuant to Section 2.03).



          (b) Upon presentation of any Security of such series that is to be redeemed in part only, the
Company shall execute and the Trustee shall authenticate and the office or agency where the
Security is presented shall deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal amount equal to the unredeemed
portion of the Security so presented.



          SECTION 3.4 Sinking Fund.



          The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the
retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01
for Securities of such series.



          The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.



          SECTION 3.5 Satisfaction of Sinking Fund Payments with Securities.



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          The Company (i) may deliver Outstanding Securities of a series (other than any Securities
previously called for redemption) and (ii) may apply as a credit Securities of a series that 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 the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series, provided that such Securities have
not been previously so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the redemption price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.



          SECTION 3.6 Redemption of Securities for Sinking Fund.



          Not less than 45 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 that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will, together with such Officers’
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before 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 3.02 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 3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.



ARTICLE IV.




CERTAIN COVENANTS




          SECTION 4.1 Payment of Principal, Premium and Interest.



          The Company will duly and punctually pay or cause to be paid the principal of and any premium
and interest on the Securities of that series at the time and place and in the manner provided
herein and established with respect to such Securities.



          SECTION 4.2 Maintenance of Office or Agency.



          So long as any series of the Securities remain Outstanding, the Company agrees to maintain an
office or agency in the United States, where (i) Securities of that series may be presented for payment, (ii) Securities
of that series may be presented as hereinabove authorized for registration of



20









 







transfer and
exchange, and (iii) notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written notice signed by an
Officer and delivered to the Trustee, designate some other office or agency for such purposes or
any of them. 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, 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, notices and demands.



          SECTION 4.3 Paying Agents.



          (a) If the Company shall appoint one or more paying agents for all or any series of the Securities,
other than the Trustee, the Company will cause each such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:




     (1) that it will hold all sums held by it as such agent for the payment of the principal of
and any premium or interest on the Securities of that series (whether such sums have been
paid to it by the Company or by any other obligor of such Securities) in trust for the
benefit of the Persons entitled thereto;




     (2) that it will give the Trustee notice of any failure by the Company (or by any other
obligor of such Securities) to make any payment of the principal of and any premium or
interest on the Securities of that series when the same shall be due and payable;


     (3) that it will, at any time during the continuance of any failure referred to in the
preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent; and




     (4) that it will perform all other duties of paying agent as set forth in this Indenture.



          (b) If the Company shall act as its own paying agent with respect to any series of the Securities,
it will on or before each due date of the principal of and any premium or interest on Securities of
that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay such principal and any premium or interest so becoming due on Securities of
that series until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of such action, or any failure (by it or any other
obligor on such Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with the paying agent a sum
sufficient to pay the principal and any premium or interest so



21









 







becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of this action or failure so to act.



          (c) Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in
trust as provided in this Section is subject to the provisions of Section 11.05, and (ii) 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 direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the Trustee upon the
same terms and conditions 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.



          SECTION 4.4 Appointment to Fill Vacancy in Office of Trustee.



          The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee hereunder.



          SECTION 4.5 Compliance with Consolidation Provisions.



          The Company will not, while any of the Securities remain Outstanding, consolidate with, or
merge into, or merge into itself, or sell or convey all or substantially all of its property to any
other company unless the provisions of Article Ten hereof are complied with.



          SECTION 4.6 Statement by Officers as to Default.



          The Company 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 signed by its principal
executive officer, principal financial officer or principal accounting officer stating whether or
not to the best knowledge of the signer thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture, and if the Company
shall be in default, specifying all such defaults and the nature and status thereof of which they
may have knowledge.



ARTICLE V.




SECURITYHOLDERS’ LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE




          SECTION 5.1 Company to Furnish Trustee Names and Addresses of Securityholders.



22









 





          The Company will furnish or cause to be furnished to the Trustee (a) semiannually on January
15 and July 15, a list, in such form as the Trustee may reasonably require, of the names and
addresses of the holders of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish such list
at any time that the list shall not differ in any respect from the most recent list furnished to
the Trustee by the Company and (b) 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, in either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.



          SECTION 5.2 Preservation of Information; Communications with Securityholders.



          (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information
as to the names and addresses of the holders of Securities contained in the most recent list
furnished to it as provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if acting in such
capacity).



          (b) The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a
new list so furnished.



          (c) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with
other Securityholders with respect to their rights under this Indenture or under the Securities.
The Company, the Trustee, the Security Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.



          SECTION 5.3 Reports by the Company.



          (a) The Company covenants and agrees to file with the Trustee (unless such reports have been filed
on the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval
system), within 15 days after the Company files the same with the Securities and Exchange
Commission, copies of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Securities and Exchange Commission may from
time to time by rules and regulations prescribe) that the Company may be required to file with the
Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. If
the Company is no longer required to file information, documents or reports pursuant to either of
such sections of the Exchange Act, the Company shall continue to provide the Trustee with reports
containing substantially the same information as would have been required to be filed with the
Securities Exchange Commission



23









 







had the Company continued to have been subject to such reporting
requirements. In such event,
such reports shall be provided to the Trustee within 15 days after the dates applicable to a
registrant that is not an accelerated filer or a large accelerated filer on which the Company would
have been required to provide reports to the Securities and Exchange Commission had it continued to
have been subject to such reporting requirements. For the avoidance of doubt, the Company shall
also comply with the other provisions of Section 314(a) of the Trust Indenture Act.



          (b) The Company covenants and agrees to file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from to time by the Securities
and Exchange Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations.



          (c) The Company covenants and agrees to transmit by electronically or mail, first class postage
prepaid, or reputable over-night delivery service that provides for evidence of receipt, to the
Securityholders, as their names and addresses appear upon the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the Securities and Exchange
Commission.



          SECTION 5.4 Reports by the Trustee.



          (a) On or before July 1 in each year in which any of the Securities are Outstanding, the Trustee
shall transmit by mail, first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register, a brief report dated as of the preceding May 1, if and
to the extent required under Section 313(a) of the Trust Indenture Act.



          (b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.



          (c) A copy of each such report shall, at the time of such transmission to Securityholders, be filed
by the Trustee with the Company, with each stock exchange upon which any Securities are listed (if
so listed) and also with the Securities and Exchange Commission. The Company agrees to notify the
Trustee when any Securities become listed on any stock exchange.




24











 





ARTICLE VI.




REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT




          SECTION 6.1 Events of Default.




          (a) Whenever used herein with respect to Securities of a particular series, “Event of Default”
means any one or more of the following events that has occurred and is continuing:





     (1) the Company defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; provided, however, that
a valid extension of an interest payment period by the Company in accordance with the terms
of any indenture supplemental hereto, shall not constitute a default in the payment of
interest for this purpose;




     (2) the Company defaults (a) in the payment of the principal of (or premium, if any, on) any
of the Securities of that series as and when the same shall become due and payable whether
at maturity, upon redemption, by declaration or otherwise, or (b) in any payment required by
any sinking or analogous fund established with respect to that series, whether or not such
payment is prohibited by Article Fourteen and the provisions of any indenture supplemental
hereto;




     (3) the Company fails to observe or perform any other of its covenants or agreements with
respect to that series contained in this Indenture or otherwise established with respect to
that series of Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for the benefit of one
or more series of Securities other than such series) for a period of 60 days after the date
on which written notice of such failure, requiring the same to be remedied and stating that
such notice is a “Notice of Default” hereunder, shall have been given in writing to the
Company by the Trustee, or to the Company and the Trustee by the holders of at least 25% in
principal amount of the Securities of that series at the time Outstanding;




     (4) if the Securities of the series are convertible into shares of common stock or other
securities of the Company, failure by the Company to deliver common stock or the other
securities when the holder or holders of such Securities elect to convert such Securities
into shares of common stock or other securities of the Company;




     (5) the Company pursuant to or within the meaning of any 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



25









 







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




     (6) a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is
for relief against the Company in an involuntary case, (ii) appoints a Custodian of the
Company for all or substantially all of its property, or (iii) orders the liquidation of the
Company and the order or decree remains unstayed and in effect for 90 days; or




     (7) any other Event of Default provided with respect to Securities of that series.



          (b) In each and every such case (other than an Event of Default specified in clauses (5) or (6)
above), unless the principal of all the Securities of that series shall have already become due and
payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of
the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by such Securityholders), may declare the principal (or, if the Securities
of such series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of, premium, if any, and accrued interest, if any, on all
the Securities of that series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, notwithstanding anything contained in
this Indenture or in the Securities of that series or established with respect to that series
pursuant to Section 2.01 to the contrary. If an Event of Default specified in clauses (5) or (6)
above occurs, all unpaid principal (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of such
series) of, premium, if any, and accrued interest, if any, on, all the Securities of that series
then outstanding will become automatically due and payable immediately, without any declaration or
other act on the part of the Trustee or any holder.




          (c) At any time after the principal of the Securities of that series shall have been so declared
due and payable, and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the holders of a majority in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the
Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal of (and premium, if any, on) any
and all Securities of that series that shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the rate per annum or
Yield to Maturity (in the case of Original Issue Discount Securities) expressed in the Securities
of that series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and the
amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the
Indenture with respect to such series, other than the non-payment



26









 






of principal, premium, if any, or
interest on Securities of that series that (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms thereof) shall not have
become due by their terms, shall have been remedied or waived as provided in Section 6.06.




          No such rescission and annulment shall extend to or shall affect any subsequent default or
impair any right consequent thereon.




          (d) In case the Trustee shall have proceeded to enforce any right with respect to Securities of
that series under this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.




          SECTION 6.2 Collection of Indebtedness and Suits for Enforcement by Trustee.




          (a) The Company covenants that (1) in case it shall default in the payment of any installment of
interest on any of the Securities of a series, or any payment required by any sinking or analogous
fund established with respect to that series as and when the same shall have become due and
payable, and such default shall have continued for a period of 30 days, or (2) in case it shall
default in the payment of the principal of (or premium, if any, on) any of the Securities of a
series when the same shall have become due and payable, whether upon maturity of the Securities of
a series or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such Securities for
principal (and premium, if any) or interest, or both, as the case may be, with interest upon the
overdue principal (and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall
be sufficient to cover the reasonable costs and expenses of collection, and the amount payable to
the Trustee under Section 7.06.




          (b) If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its
own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the Securities of that series
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or other obligor upon the Securities of
that series, wherever situated.





27









 








          (c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment,
arrangement, composition or judicial proceedings affected the Company, or its creditors or
property, the Trustee shall have power to intervene in such proceedings and take any action therein
that may be permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under the Indenture at the date
of institution of such proceedings and for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction of the amount payable
to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of such series to make
such payments to the Trustee, and, in the event that the Trustee shall consent to the making of
such payments directly to such Securityholders, to pay to the Trustee any amount due it under
Section 7.06.




          (d) All rights of action and of asserting claims under this Indenture, or under any of the terms
established with respect to Securities of that series, may be enforced by the Trustee without the
possession of any of such Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or 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
payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the
holders of the Securities of such series.




          In case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in the Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.




          Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any
such proceeding.




          SECTION 6.3 Application of Moneys Collected.




          Any moneys collected by the Trustee pursuant to this Article with respect to a particular
series of Securities shall be applied in the following order, at the date or dates fixed by




28









 







the
Trustee and, in case of the distribution of such moneys on account of principal (or premium, if
any) or interest, upon presentation of the Securities of that series, and notation thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:





     FIRST: To the payment of costs and expenses of collection and of all amounts payable
to the Trustee under Section 7.06;




     SECOND: To the payment of all senior indebtedness of the Company if and to the extent
required by Article Fourteen; and




     THIRD: To the payment of the amounts then due and unpaid upon Securities of such
series for principal and any premium and interest, 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 Securities for principal and any premium
and interest, respectively.



          SECTION 6.4 Limitation on Suits.




          No holder of any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or
under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name
as trustee hereunder; (iii) such holder or holders shall have offered to the Trustee such
reasonable indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
therein or thereby; and (iv) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such action, suit or proceeding and (v)
during such 60 day period, the holders of a majority in principal amount of the Securities of that
series do not give the Trustee a direction inconsistent with the request.




          Notwithstanding anything contained herein to the contrary or any other provisions of this
Indenture, the right of any holder of any Security to receive payment of the principal of and any
premium and (subject to Section 2.03) interest on such Security
(whether upon redemption, repurchase, maturity or otherwise) or
payment or delivery of any amounts due upon
conversion of Securities of any Series that are convertible into shares of common stock or other
securities, as therein provided, on or after the respective due dates expressed in such Security
(or in the case of redemption or repurchase, on the redemption date
or repurchase date respectively), or to institute suit for the enforcement of
any such payment or delivery on or after such respective dates,
redemption date or repurchase date, shall not be impaired or
affected without the consent of such holder and by accepting a Security hereunder it is expressly
understood, intended and covenanted by the taker and holder
of every Security of such series with every other such taker and holder and the Trustee, that no




29









 







one or more holders of Securities of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights
of the holders of any other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all holders of Securities
of such series. For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be given either at law
or in equity.




          SECTION 6.5 Rights and Remedies Cumulative; Delay or Omission Not Waiver.




          (a) Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to
the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to such
Securities.




          (b) No delay or omission of the Trustee or of any holder of any of the Securities to exercise any
right or power accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given
by this Article or by law to the Trustee or the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Securityholders.




          SECTION 6.6 Control by Securityholders.




          The holders of a majority in aggregate principal amount of the Securities of any series at the
time Outstanding, determined in accordance with Section 8.04, 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 such series;
provided, however, that such direction shall not be in conflict with any rule of
law or with this Indenture or be unduly prejudicial to the rights of holders of Securities of such
series not consenting; and provided, further, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such direction. Prior to the
taking of any action hereunder, the Trustee shall be entitled to reasonable indemnification
satisfactory to the Trustee against all losses and expenses caused by taking or not taking such
action. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers
of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability. The holders of a
majority in aggregate principal amount of the Securities of any series at the time


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Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all
of the Securities of such series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.01 with respect to such series and its
consequences, except for (a) a default in the payment of the principal of or any premium or interest
on, any of the Securities of that series (whether upon redemption,
repurchase, maturity or otherwise) or payment or delivery of any amounts due upon conversion of
Securities of any Series that are convertible into shares of common stock or other securities as
and when the same shall become due by the terms of such Securities otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured installments of
interest and principal and any premium has been deposited with the Trustee (in accordance with
Section 6.01(c)), or (b) if the Securities of that series are convertible into shares of common stock
or other securities), the failure by the Company to deliver common
stock or the other Securities as and when they shall become deliverable by the terms of such Securities.
Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the Securities of such series shall
be restored to their former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.




          SECTION 6.7 Undertaking to Pay Costs.




          All parties to this Indenture agree, and each holder of any Securities by such holder’s
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 that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, 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; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security of such series, on or after
the respective due dates expressed in such Security or established pursuant to this Indenture.




ARTICLE VII.




CONCERNING THE TRUSTEE




          SECTION 7.1 Certain Duties and Responsibilities of Trustee.




          (a) The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a
series and after the curing of all Events of Default with respect to the
Securities of that series that may have occurred, shall undertake to perform with respect to the
Securities of such series such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against the Trustee. In case




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an Event of Default with respect to the Securities of a series has occurred (that has not been
cured or waived), the Trustee shall exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.




          (b) No provision of this Indenture shall be construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act, or its own willful misconduct, except that:





     (1) prior to the occurrence of an Event of Default with respect to the Securities of a
series and after the curing or waiving of all such Events of Default with respect to that
series that may have occurred:




     (i) the duties and obligations of the Trustee shall with respect to the
Securities of such series be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable with respect to the
Securities of such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and




     (ii) in the absence of bad faith on the part of the Trustee, the Trustee may
with respect to the Securities of such series conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirement of this Indenture;




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




     (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of the holders of not less than a
majority in principal amount of the Securities of any series at the time Outstanding
(determined as provided in Section 8.04) relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture with respect to the
Securities of that series; and



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     (4) None of the provisions contained in this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured
to it under the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.



          SECTION 7.2 Certain Rights of Trustee.




          Except as otherwise provided in Section 7.01:




          (a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from
acting upon any document (whether in its original or facsimile form) believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document. The Trustee shall receive and retain financial reports and
statements of the Company as provided herein, but shall have no duty to review or analyze such
reports or statements to determine compliance under covenants or other obligations of the Company.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and
an Opinion of Counsel, which shall conform to the provisions of Section 13.07. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.




          (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 required to give any bond or surety in respect of the performance of
its powers and duties hereunder.




          (e) The permissive rights of the Trustee to do things enumerated in this Indenture shall not be
construed as duties.




          (f) Except with respect to Section 4.01 the Trustee shall have no duty to inquire as to the
performance of the Company with respect to the covenants contained in Article Four. In addition,
the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or
Event of Default occurring pursuant to 6.01(a)(2) or (ii) any Default or Event of Default of which
a Responsible Officer of the Trustee shall have received written notification from the Company or
any Holder of such Default or Event of Default at the Corporate Trust Office, and such notice
references the Securities and this Indenture.




          (g) The rights, privileges, protections, immunities and benefits given to the Trustee, including
its right to be indemnified, are extended to, and shall be enforceable by, the




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Trustee in each of
its capacities (including as Paying Agent) hereunder, and to each agent, custodian and other Person
employed to act hereunder.




          (h) Delivery of reports, information and documents to the Trustee under Section 5.03 is for
informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officers’ Certificate).




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




          (j) 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 Trustee has been advised as to the likelihood of such
loss or damage and regardless of the form of action.




          (k) 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.




          SECTION 7.3 Trustee Not Responsible for Recitals or Issuance or Securities.




          (a) The recitals contained herein and in the Securities shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the same.




          (b) The Trustee makes no representations as to the validity or sufficiency of this Indenture or of
the Securities.



          (c) The Trustee shall not be accountable for the use or application by the Company of any of the
Securities or of the proceeds of such Securities, or for the use or application of any moneys paid
over by the Trustee in accordance with any provision of this
Indenture or established pursuant to Section 2.01, or for the use or application of any moneys
received by any paying agent other than the Trustee.



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          SECTION 7.4 May Hold Securities.




          The Trustee or any paying agent or Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it would have if it
were not Trustee, paying agent or Security Registrar.




          SECTION 7.5 Moneys Held in Trust.




          Subject to the provisions of Section 11.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received,
but 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 moneys received by it hereunder except such as it
may agree with the Company to pay thereon.




          SECTION 7.6 Compensation and Reimbursement.




          (a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to,
such compensation (which shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust), as the Company, and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as
otherwise expressly provided herein, the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the reasonable compensation and
the expenses and disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in the premises.




          (b) The obligations of the Company under this Section to compensate and indemnify the Trustee and
to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders
of particular Securities. The provisions of this Section 7.06 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.




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          (c) When the Trustee incurs expenses or renders services after a Default specified in
6.01(a)(5)(6) occurs, such expenses (including the charges and expenses of its counsel) and the
compensation for such services shall be paid to the extent allowed under any Bankruptcy Law and
only intended to constitute expenses of administration under any Bankruptcy Law.




          SECTION 7.7 Reliance on Officers’ Certificate.




          Except as otherwise provided in Section 7.01, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.




          SECTION 7.8 Disqualification; Conflicting Interests.




          If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.




          SECTION 7.9 Corporate Trustee Required; Eligibility.




          There shall at all times be a Trustee with respect to the Securities issued hereunder which
shall at all times be a corporation organized and doing business under the laws of the United
States of America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Securities and Exchange Commission,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. The Company may not, nor may any
Person directly or indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.




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          SECTION 7.10 Resignation and Removal; Appointment of Successor.




          (a) The Trustee or any successor hereafter appointed, may at any time resign with respect to the
Securities of one or more series by giving written notice thereof to the Company and by
transmitting notice of resignation electronically or by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such series by or pursuant to a Board Resolution. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the mailing
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 Securities of such series,
or any Securityholder of that series who has been a bona fide holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.




          (b) In case at any time any one of the following shall occur:





     (1) the Trustee shall fail to comply with the provisions of Section 7.08 after written
request therefor by the Company or by any Securityholder who has been a bona fide holder of
a Security or Securities for at least six months; or




     (2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09
and shall fail to resign after written request therefor by the Company or by any such
Securityholder; or




     (3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, 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, the Company may remove the Trustee with
respect to all Securities and appoint a successor trustee by or pursuant to a Board
Resolution, or, unless the Trustee’s duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Security or Securities for at least six
months may, on behalf of that holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.



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          (c) The holders of a majority in aggregate principal amount of the Securities of any series at the
time Outstanding may at any time remove the Trustee with respect to such series by so notifying the
Trustee and the Company and may appoint a successor Trustee for such series with the consent of the
Company.




          (d) Any resignation or removal of the Trustee and appointment of a successor trustee with respect
to the Securities of a series pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.




          (e) Any successor trustee appointed pursuant to this Section may be appointed with respect to the
Securities of one or more series or all of such series, and at any time there shall be only one
Trustee with respect to the Securities of any particular series.




          SECTION 7.11 Acceptance of Appointment By Successor.




          (a) 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 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.




          (b) In case of the appointment hereunder of a successor trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor trustee relates,
(2) shall contain such provisions as shall be 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 Trustees co-trustees of the same trust, 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 that no Trustee shall be responsible for



38









 






any
act or failure to act on the part of any other Trustee hereunder; 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, such retiring Trustee shall with respect to the
Securities of that or those series to which the appointment of such successor trustee relates have
no further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture, 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, to the extent contemplated by such supplemental indenture, the 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.




          (c) Upon request of any such successor trustee, the Company 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 paragraph (a) or (b) of this Section, as the case may be.




          (d) 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.




          (e) Upon acceptance of appointment by a successor trustee as provided in this Section, the Company
shall transmit notice of the succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the Security Register.
If the Company fails to transmit such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be transmitted at the expense
of the Company.




          SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business.




          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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such corporation
shall be qualified under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09, without the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding. 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 with the same effect as if such
successor Trustee had itself authenticated such Securities.





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          SECTION 7.13 Preferential Collection of Claims Against the Company.




          The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.




          SECTION 7.14 Notice of Defaults.




          If a Default occurs and is continuing hereunder with respect to Securities of any series and
if it is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each
holder of such Securities notice of the Default within 90 days after it occurs provided,
however, that in the case of any Default of the character specified in Section 6.01(3) with
respect to Securities of such series, no such notice to Holders shall be given until at least 30
days after the occurrence thereof. Except in the case of a default in payment of principal of or
interest on any Security (whether upon redemption, repurchase,
maturity or otherwise) (including payments pursuant
to the redemption or repurchase provisions of such Security, if any)
or payment or delivery of any amounts due upon conversion of Securities of any Series
that are convertible into shares of common stock or other securities, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the holders of such Securities.




ARTICLE VIII.




CONCERNING THE SECURITYHOLDERS




          SECTION 8.1 Evidence of Action by Securityholders.




          Whenever in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Securities of a particular series may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders
of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing.




          If the Company shall solicit from the Securityholders of any series any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization, direction, notice, consent,




40









 







waiver or other action may be given before or after the record date, but only the Securityholders
of record at the close of business on the record date shall be deemed to be Securityholders for the
purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.




          SECTION 8.2 Proof of Execution by Securityholders.




          Subject to the provisions of Section 7.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in the following manner:




          (a) The fact and date of the execution by any such Person of any instrument may be proved in any
reasonable manner acceptable to the Company.




          (b) The ownership of Securities shall be proved by the Security Register of such Securities or by a
certificate of the Security Registrar thereof.




          (c) The Trustee or Company may require such additional proof of any matter referred to in this
Section as it shall deem necessary.




          SECTION 8.3 Who May be Deemed Owners.




          Prior to the due presentment for registration of transfer of any Security, the Company, the
Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name
such Security shall be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to the contrary.




          SECTION 8.4 Certain Securities Owned by Company Disregarded.




          In determining whether the holders of the requisite aggregate principal amount of Securities
of a particular series have concurred in any direction, consent of waiver under this



41









 






Indenture, the
Securities of that series that are owned by the Company or any other obligor on
the Securities of that series or by any Person directly or indirectly controlling or controlled by
or under common control with the Company or any other obligor on the Securities of that series
shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities of such series that the Trustee actually knows
are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith
may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not a Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.




          SECTION 8.5 Actions Binding on Future Securityholders.




          At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Security. Except as aforesaid any such action taken by the holder
of any Security shall be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor, on registration of
transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto
is made upon such Security. Any action taken by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.




ARTICLE IX.




SUPPLEMENTAL INDENTURES




          SECTION 9.1 Supplemental Indentures Without the Consent of Securityholders.




          In addition to any supplemental indenture otherwise authorized by this Indenture, the Company
and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act




42









 







as then in
effect), without the consent of the Securityholders, for one or more of the following purposes:




          (a) to cure any ambiguity, omission, defect, or inconsistency herein or in the Securities of any
series;




          (b) to comply with Article Ten;




          (c) to provide for uncertificated Securities in addition to or in place of certificated Securities;





          (d) to add Guarantees, including Subsidiary Guarantees, with respect to debt securities or to
release Subsidiary Guarantors from Subsidiary Guarantees in accordance with the terms of the
applicable series of Securities or to secure a series of Securities;




          (e) to add to the covenants of the Company 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;




          (f) to add to, delete from, or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication, and delivery of Securities, as
herein set forth;




          (g) to make any change that does not adversely affect the rights of any Securityholder in any
material respect, provided that any amendment to conform the terms of any Securities to its
description contained in the final offering document therefor shall not be deemed to be adverse to
any Securityholder;




          (h) to provide for the issuance of and establish the form and terms and conditions of the
Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to
add to the rights of the holders of any series of Securities;




          (i) to comply with any requirements of the Securities and Exchange Commission in connection with
qualifying, or maintaining the qualification of, this Indenture under the Trust Indenture Act; or




          (j) to secure any series of Security.




          The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental 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 any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.




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          Any supplemental indenture authorized by the provisions of this Section may be executed by the
Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.




          SECTION 9.2 Supplemental Indentures With Consent of Securityholders.




          With the consent (evidenced as provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Securities of each series affected by such
supplemental indenture or indentures at the time Outstanding, the Company, when authorized by
Board Resolutions, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities of
such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding affected
thereby, (i) change the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof; (ii) reduce the amount of principal of an Original
Issue Discount Security or any other Security payable upon acceleration of the maturity thereof;
(iii) change the currency in which any Security or any premium or interest is payable; (iv) impair
the right to receive payment of principal of and interest on any Security (whether upon
redemption, repurchase, maturity, or otherwise) or payment or delivery of any amounts
due upon conversion of Securities of any Series that are convertible into shares of common stock or
other securities on or after the due dates thereof or to institute suit for the enforcement of any
payment on or with respect to any Security; (v) adversely change the right to convert or exchange,
including decreasing the conversion rate or increasing the conversion price of, such Security (if
applicable); (vi) modify the subordination provisions in a manner adverse to the holders of such
Securities; (vii) if the Securities are secured, change the terms and conditions pursuant to which
the Securities are secured in a manner adverse to the holders of the secured Securities; (viii)
reduce the percentage in principal amount of outstanding Securities of any series, the consent of
whose holders is required for modification or amendment of this Indenture or for waiver of
compliance with any provision of this Indenture; (ix) reduce the requirements contained in this
Indenture for quorum or voting; (x) change any obligations of the Company to maintain an office or
agency in the places and for the purposes required by the indentures; or (xi) modify any of the
above provisions.




          It shall not be necessary for the consent of the Securityholders of any series affected
thereby under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.




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          SECTION 9.3 Effect of Supplemental Indentures.




          Upon the execution of any supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, this Indenture shall, with respect to such series, be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the holders of
Securities of the series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.




          SECTION 9.4 Securities Affected by Supplemental Indentures.




          Securities of any series, affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities of that series so
modified as to conform, in the opinion of the Trustee and the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of that series then
Outstanding.




          SECTION 9.5 Execution of Supplemental Indentures.




          Upon the request of the Company, accompanied by its Board Resolutions authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture
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 supplemental
indenture. The Trustee, subject to the provisions of Section 7.01, shall be provided an Opinion of
Counsel and an Officers’ Certificate as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel need not be
provided in connection with the execution of a supplemental indenture that establishes the terms of
a series of Securities pursuant to Section 2.01 hereof.




          SECTION 9.6 Conformity with Trust Indenture Act.




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          Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act of 1939, as amended, in effect on such date.




ARTICLE X.




SUCCESSOR CORPORATION




          SECTION 10.1 Company May Consolidate, Etc.




          Unless otherwise specified in a supplemental indenture hereto, nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the Company) or successive consolidations
or mergers in which the Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or
its successor or successors as an entirety, or substantially as an entirety, to any other Person
(whether or not affiliated with the Company or its successor or successors) authorized to acquire
and operate the same; provided, however, the Company hereby covenants and agrees
that, upon any such consolidation, merger, sale, conveyance, transfer or other disposition, the due
and punctual payment of the principal of and any premium and interest on all of the Securities of
all series in accordance with the terms of each series, according to their tenor and the due and
punctual performance and observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant to Section 2.01 to be
kept or performed by the Company shall be expressly assumed, by supplemental indenture (which shall
conform to the requirements of the Trust Indenture Act as then in effect) satisfactory in form to
the Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or
into which the Company shall have been merged, or by the entity which shall have acquired such
property.




          SECTION 10.2 Successor Substituted.




          (a) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and
upon the assumption by the successor Person, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and any premium and interest on all of the Securities of all series Outstanding and
the due and punctual performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Securities pursuant to Section 2.01 to be performed
by the Company with respect to each series, such successor Person shall succeed to and be
substituted for the Company with the same effect as if it had been named as the Company herein, and
thereupon the predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.




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          (b) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition such
changes in phraseology and form (but not in substance) may be made in the Securities thereafter to
be issued as may be appropriate.




          (c) Nothing contained in this Indenture or in any of the Securities shall prevent the Company from
merging into itself or acquiring by purchase or otherwise all or any part of the property of any
other Person (whether or not affiliated with the Company).




          SECTION 10.3 Evidence of Consolidation, Etc. to Trustee.




          The Trustee, subject to the provisions of Section 7.01, shall be provided an Opinion of
Counsel and an Officers’ Certificate as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply with the
provisions of this Article.




ARTICLE XI.




SATISFACTION AND DISCHARGE




          SECTION 11.1 Satisfaction and Discharge of Indenture.




          If at any time: (a) the Company shall have delivered to the Trustee for cancellation all
Securities of a series theretofore authenticated (other than any Securities that shall have ben
destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07 and
Securities for whose payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company and thereupon repaid to the Company or
discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a
particular series not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or , except in the case of any Securities that are convertible or exchangeable, are by
their terms to become due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit or cause to be deposited with the Trustee as trust funds an amount of money
in U.S. dollars sufficient, or non-callable Governmental Obligations, the principal of and
interest on which when due, will be sufficient or a combination thereof, 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 at maturity or upon redemption all
Securities of that series not theretofore delivered to the Trustee for cancellation, including
principal and any premium and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder with respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall



47









 






survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and
11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.




          SECTION 11.2 Discharge of Obligation.




          If at any time all such Securities of a particular series not heretofore delivered to the
Trustee for cancellation or that have not become due and payable as described in Section 11.01
shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds
money in U.S. dollars sufficient or an amount of non-callable Governmental Obligations, the
principal of and interest on which when due, will be sufficient or a combination thereof,
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 at maturity or upon
redemption all such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal and any premium and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company with respect to such series, then
after the date such moneys or Governmental Obligations, as the case may be, are deposited with the
Trustee the obligations of the Company under this Indenture with respect to such series shall cease
to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03,
7.06, 7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.




          SECTION 11.3 Deposited Moneys to be Held in Trust.




          All moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01
or 11.02 shall be held in trust and shall be available for payment as due, either directly or
through any paying agent (including the Company acting as its own paying agent), to the holders of
the particular series of Securities for the payment or redemption of which such moneys or
Governmental Obligations have been deposited with the Trustee.




          SECTION 11.4 Payment of Moneys Held by Paying Agents.




          In connection with the satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand
of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys or Governmental Obligations.




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          SECTION 11.5 Repayment to Company.




          Any moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then
held by the Company, in trust for payment of principal of or premium or interest on the Securities
of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of and any premium or interest on
such Securities shall have respectively become due and payable, shall be repaid to the Company on
May 31 of each year or (if then held by the Company) shall be discharged from such trust; and
thereupon the paying agent and the Trustee shall be released from all further liability with
respect to such moneys or Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof.




ARTICLE XII.




IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS

AND DIRECTORS




          SECTION 12.1 No Recourse.




          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 or director, past, present or future as such, of the Company or
of any predecessor or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, 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 this Indenture and the obligations issued hereunder are solely corporate obligations, and that
no such personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or
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 of every name and nature, 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 or director 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 issuance of such
Securities.






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ARTICLE XIII.



MISCELLANEOUS PROVISIONS




          SECTION 13.1 Effect on Successors and Assigns.




          All the covenants, stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company shall bind their respective successors and assigns, whether so expressed or
not.




          SECTION 13.2 Actions by Successor.




          Any act or proceeding by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer of any Person that
shall at the time be the lawful sole successor of the Company.




          SECTION 13.3 Notices.




          Except as otherwise expressly provided herein any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the holders of
Securities to or on the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is filed in writing by the
Company with the Trustee), as follows: Champion Enterprises, Inc., 2701 Cambridge Court, Suite 300,
Auburn Hills, MI 48326, Attention: Jay Kreindler, Associate General Counsel. Any notice, election,
request or demand by the Company or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.




          SECTION 13.4 Notice to Holders of Securities; Waiver.




          Except as otherwise expressly provided herein, where this Indenture provides for notice to
holders of Securities of any event, such notice shall be sufficiently given to holders of
Securities if in writing and mailed, first-class postage prepaid, to each holder of a Security
affected by such event, at the address of such holder as it appears in the Security Register, not
earlier than the earliest date, and not later than the latest date, prescribed for the giving of
such notice.




          In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice to holders of Securities by mail, then such notification
as shall be made with the approval of the Trustee shall constitute sufficient



50









 






notice to such holder for every purpose hereunder. In any case where notice to holders of
Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice
mailed to any particular holder of a Security shall affect the sufficiency of such notice with
respect to other holders of Securities given as provided herein.




          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 of Securities 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.




          SECTION 13.5 Governing Law.




          This Indenture and each Security shall be deemed to be a contract made under the internal laws
of the State of New York, and for all purposes shall be construed in accordance with the laws of
said State.




          SECTION 13.6 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 13.7 Compliance Certificates and Opinions.




          (a) Upon any application or demand by the Company to the Trustee to take any action under any of
the provisions of this Indenture, the Company, shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.




          (b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant in this Indenture shall include (1) a statement
that the Person making such certificate or opinion has read such covenant or condition; (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 such Person, he has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.




51









 








          SECTION 13.8 Payments on Business Days.




          Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and as set forth
in an Officers’ Certificate, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or principal of any Security or the
date of redemption or repurchase of any Security shall not be a Business Day, then payment of interest or
principal (and premium, if any) (whether upon repurchase, redemption,
maturity, or otherwise) may be made on the next succeeding Business Day with the same force
and effect as if made on the nominal date of maturity, redemption, or repurchase and no interest shall accrue
for the period after such nominal date.




          SECTION 13.9 Conflict with Trust Indenture Act.




          If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by Section 318(c) of the Trust Indenture Act, such imposed duties shall control.




          SECTION 13.10 Counterparts.




          This Indenture may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same instrument.




          SECTION 13.11 Separability.




          In case any one or more of the provisions contained in this Indenture or in the Securities of
any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained herein or therein.




          SECTION 13.12 Assignment.




          The Company will have the right at all times to assign any of its rights or obligations under
this Indenture to a direct or indirect wholly-owned Subsidiary of the Company, provided
that, in the event of any such assignment, the Company, will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and inures to the benefit of
the parties thereto and their respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.




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ARTICLE XIV.




SUBORDINATION OF SECURITIES




          SECTION 14.1 Subordination Terms.




          The payment by the Company of the principal of and any premium and interest on any series of
Securities issued hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such Securities.




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




	 	 	 	 	 
	 	CHAMPION ENTERPRISES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WELLS FARGO BANK, N.A.,



as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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