exv4w5



 






EXHIBIT
4.5




 





WCA
WASTE CORPORATION




GUARANTORS

Named Herein




AND




[
                    
]




Trustee




 






INDENTURE




DATED
AS OF __________________, 200___




 






SUBORDINATED
DEBT SECURITIES




 






 









 








WCA
WASTE CORPORATION




RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939, AS AMENDED,

AND INDENTURE, DATED AS OF ________________, 200___




	 	 	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION	 
	Section 310(a)(1)
	 	 	6.9	 
	(a)(2)
	 	 	6.9	 
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(a)(5)
	 	 	6.9	 
	(b)
	 	 	6.8	 
	 
	 	 	 	 
	Section 311
	 	 	6.13	 
	 
	 	 	 	 
	Section 312(a)
	 	 	7.1, 7.2	(a)
	(b)
	 	 	7.2	(b)
	(c)
	 	 	7.2	(c)
	 
	 	 	 	 
	Section 313(a)
	 	 	7.3	 
	(b)
	 	 	*	 
	(c)
	 	 	*	 
	(d)
	 	 	7.3	 
	 
	 	 	 	 
	Section 314(a)
	 	 	7.4	 
	(a)(4)
	 	 	10.5	 
	(b)
	 	Not Applicable
	(c)(1)
	 	 	1.3	 
	(c)(2)
	 	 	1.3	 
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable

	(e)
	 	 	1.3	 
	 
	 	 	 	 
	Section 315(a)
	 	 	6.1	(a)
	(b)
	 	 	6.2	 
	(c)
	 	 	6.1	(b)
	(d)
	 	 	6.1	(c)
	(d)(1)
	 	 	6.1	(a)(1)
	(d)(2)
	 	 	6.1	(c)(2)
	(d)(3)
	 	 	6.1	(c)(3)
	(e)
	 	 	5.14	 
	 
	 	 	 	 
	Section 316(a)
	 	 	1.1, 1.2	 
	(a)(1)(A)
	 	 	5.2, 5.12	 
	(a)(1)(B)
	 	 	5.13	 
	(a)(2)
	 	Not Applicable
	(b)
	 	 	5.8	 
	(c)
	 	 	1.5	(f)






 









 






	 	 	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION	 
	Section 317(a)(1)
	 	 	5.3	 
	(a)(2)
	 	 	5.4	 
	(b)
	 	 	10.3	 
	 
	 	 	 	 
	Section 318(a)
	 	 	1.8	 





NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.






 




			
	*	 	Deemed included pursuant to Section 318(c) of the Trust Indenture Act




 









 










TABLE
OF CONTENTS




	 	 	 	 	 
	PARTIES
	 	 	1	 
	 
	 	 	 	 
	RECITALS OF THE COMPANY:
	 	 	1	 
	 
	 	 	 	 
	ARTICLE
ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	Section 1.3. Compliance Certificates and Opinions
	 	 	8	 
	Section 1.4. Form of Documents Delivered to Trustee
	 	 	9	 
	Section 1.5. Acts of Holders; Record Dates
	 	 	9	 
	Section 1.6. Notices, Etc., to Trustee, Company and Guarantors
	 	 	10	 
	Section 1.7. Notice to Holders; Waiver
	 	 	11	 
	Section 1.8. Conflict with Trust Indenture Act
	 	 	11	 
	Section 1.9. Effect of Headings and Table of Contents
	 	 	11	 
	Section 1.10. Successors and Assigns
	 	 	11	 
	Section 1.11. Separability Clause
	 	 	11	 
	Section 1.12. Benefits of Indenture
	 	 	11	 
	Section 1.13. Governing Law
	 	 	12	 
	Section 1.14. Legal Holidays
	 	 	12	 
	Section 1.15. Securities in a Composite Currency, Currency Unit or Foreign Currency
	 	 	12	 
	Section 1.16. Payment in Required Currency; Judgment Currency
	 	 	12	 
	Section 1.17. Language of Notices, Etc
	 	 	13	 
	Section 1.18. Incorporators, Shareholders, Officers and Directors of the Company and the
Guarantors Exempt from Individual Liability
	 	 	13	 
	 
	 	 	 	 
	ARTICLE
TWO SECURITY FORMS
	 	 	13	 
	Section 2.1. Forms Generally
	 	 	13	 
	Section 2.2. Form of Face of Security
	 	 	14	 
	Section 2.3. Form of Reverse of Security
	 	 	16	 
	Section 2.4. Global Securities
	 	 	20	 
	Section 2.5. Form of Trustee’s Certificate of Authentication
	 	 	21	 
	 
	 	 	 	 
	ARTICLE
THREE THE SECURITIES
	 	 	22	 
	Section 3.1. Amount Unlimited; Issuable in Series
	 	 	22	 
	Section 3.2. Denominations
	 	 	24	 
	Section 3.3. Execution, Authentication, Delivery and Dating
	 	 	24	 
	Section 3.4. Temporary Securities
	 	 	26	 
	Section 3.5. Registration, Registration of Transfer and Exchange
	 	 	26	 
	Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	29	 
	Section 3.7. Payment of Interest; Interest Rights Preserved
	 	 	29	 
	Section 3.8. Persons Deemed Owners
	 	 	30	 
	Section 3.9. Cancellation
	 	 	31	 
	Section 3.10. Computation of Interest
	 	 	31	 
	Section 3.11. CUSIP or CINS Numbers
	 	 	31	 






i









 






	 	 	 	 	 
	ARTICLE
FOUR SATISFACTION AND DISCHARGE
	 	 	31	 
	Section 4.1. Satisfaction and Discharge of Indenture
	 	 	31	 
	Section 4.2. Application of Trust Money
	 	 	32	 
	 
	 	 	 	 
	ARTICLE
FIVE REMEDIES
	 	 	33	 
	Section 5.1. Events of Default
	 	 	33	 
	Section 5.2. Acceleration of Maturity; Rescission and Annulment
	 	 	34	 
	Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	34	 
	Section 5.4. Trustee May File Proofs of Claim
	 	 	35	 
	Section 5.5. Trustee May Enforce Claims Without Possession of Securities
	 	 	36	 
	Section 5.6. Application of Money Collected
	 	 	36	 
	Section 5.7. Limitation on Suits
	 	 	36	 
	Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest
	 	 	37	 
	Section 5.9. Restoration of Rights and Remedies
	 	 	37	 
	Section 5.10. Rights and Remedies Cumulative
	 	 	37	 
	Section 5.11. Delay or Omission Not Waiver
	 	 	37	 
	Section 5.12. Control by Holders
	 	 	38	 
	Section 5.13. Waiver of Past Defaults
	 	 	38	 
	Section 5.14. Undertaking for Costs
	 	 	38	 
	Section 5.15. Waiver of Stay or Extension Laws
	 	 	39	 
	 
	 	 	 	 
	ARTICLE
SIX THE TRUSTEE
	 	 	39	 
	Section 6.1. Certain Duties and Responsibilities
	 	 	39	 
	Section 6.2. Notice of Defaults
	 	 	40	 
	Section 6.3. Certain Rights of Trustee
	 	 	40	 
	Section 6.4. Not Responsible for Recitals or Issuance of Securities
	 	 	41	 
	Section 6.5. May Hold Securities
	 	 	42	 
	Section 6.6. Money Held in Trust
	 	 	42	 
	Section 6.7. Compensation and Reimbursement
	 	 	42	 
	Section 6.8. Disqualification; Conflicting Interests
	 	 	43	 
	Section 6.9. Corporate Trustee Required; Eligibility
	 	 	43	 
	Section 6.10. Resignation and Removal; Appointment of Successor
	 	 	43	 
	Section 6.11. Acceptance of Appointment by Successor
	 	 	44	 
	Section 6.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	45	 
	Section 6.13. Preferential Collection of Claims Against Company
	 	 	46	 
	Section 6.14. Appointment of Authenticating Agent
	 	 	46	 
	 
	 	 	 	 
	ARTICLE
SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	47	 
	Section 7.1. Company to Furnish Trustee Names and Addresses of Holders
	 	 	47	 
	Section 7.2. Preservation of Information; Communications to Holders
	 	 	48	 
	Section 7.3. Reports by Trustee
	 	 	49	 
	Section 7.4. Reports by Company
	 	 	49	 
	 
	 	 	 	 
	ARTICLE
EIGHT CONSOLIDATION, AMALGAMATION, MERGER AND SALE
	 	 	50	 
	Section 8.1. Company May Consolidate, Etc., Only on Certain Terms
	 	 	50	 
	Section 8.2. Successor Substituted
	 	 	50	 






ii









 






	 	 	 	 	 
	ARTICLE
NINE SUPPLEMENTAL INDENTURES
	 	 	50	 
	Section 9.1. Supplemental Indentures Without Consent of Holders
	 	 	50	 
	Section 9.2. Supplemental Indentures with Consent of Holders
	 	 	52	 
	Section 9.3. Execution of Supplemental Indentures
	 	 	53	 
	Section 9.4. Effect of Supplemental Indentures
	 	 	53	 
	Section 9.5. Conformity with Trust Indenture Act
	 	 	53	 
	Section 9.6. Reference in Securities to Supplemental Indentures
	 	 	53	 
	 
	 	 	 	 
	ARTICLE
TEN COVENANTS
	 	 	53	 
	Section 10.1. Payment of Principal, Premium and Interest
	 	 	53	 
	Section 10.2. Maintenance of Office or Agency
	 	 	53	 
	Section 10.3. Money for Securities Payments to Be Held in Trust
	 	 	54	 
	Section 10.4. Existence
	 	 	55	 
	Section 10.5. Statement by Officers as to Default
	 	 	55	 
	Section 10.6. Waiver of Certain Covenants
	 	 	55	 
	Section 10.7. Additional Amounts
	 	 	56	 
	 
	 	 	 	 
	ARTICLE
ELEVEN REDEMPTION OF SECURITIES
	 	 	56	 
	Section 11.1. Applicability of Article
	 	 	56	 
	Section 11.2. Election to Redeem; Notice to Trustee
	 	 	56	 
	Section 11.3. Selection by Trustee of Securities to Be Redeemed
	 	 	57	 
	Section 11.4. Notice of Redemption
	 	 	57	 
	Section 11.5. Deposit of Redemption Price
	 	 	58	 
	Section 11.6. Securities Payable on Redemption Date
	 	 	58	 
	Section 11.7. Securities Redeemed in Part
	 	 	58	 
	 
	 	 	 	 
	ARTICLE
TWELVE SINKING FUNDS
	 	 	59	 
	Section 12.1. Applicability of Article
	 	 	59	 
	Section 12.2. Satisfaction of Sinking Fund Payments with Securities
	 	 	59	 
	Section 12.3. Redemption of Securities for Sinking Fund
	 	 	59	 
	 
	 	 	 	 
	ARTICLE
THIRTEEN DEFEASANCE
	 	 	60	 
	Section 13.1. Applicability of Article
	 	 	60	 
	Section 13.2. Legal Defeasance
	 	 	60	 
	Section 13.3. Covenant Defeasance
	 	 	61	 
	Section 13.4. Deposited Money and U.S. Government Obligations to be Held in Trust
	 	 	62	 
	Section 13.5. Repayment to Company; Qualifying Trustee
	 	 	63	 
	 
	 	 	 	 
	ARTICLE FOURTEEN GUARANTEE OF SECURITIES
	 	 	63	 
	Section 14.1. Unconditional Guarantee
	 	 	63	 
	Section 14.2. Execution and Delivery of Notation of Guarantee
	 	 	65	 
	Section 14.3. Reports by Guarantor
	 	 	66	 
	Section 14.4. Subordination of Guarantees
	 	 	66	 
	 
	 	 	 	 
	ARTICLE FIFTEEN SUBORDINATION OF SECURITIES
	 	 	66	 
	Section 15.1. Securities Subordinated to Senior Debt
	 	 	66	 
	Section 15.2. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of
Securities
	 	 	67	 






iii









 






	 	 	 	 	 
	Section 15.3. Payments on Securities Permitted
	 	 	68	 
	Section 15.4. Authorization of Holders of Securities to Trustee to Effect Subordination
	 	 	69	 
	Section 15.5. Notices to Trustee
	 	 	69	 
	Section 15.6. Trustee as Holder of Senior Debt
	 	 	69	 
	Section 15.7. Modification of Terms of Senior Debt
	 	 	70	 





NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.





iv









 








PARTIES




     INDENTURE, dated as of ___[___], 200___, among WCA WASTE CORPORATION, a corporation
duly organized and existing under the laws of the State of Delaware (herein called the “Company”),
having an office at One Riverway, Suite 1400, Houston, Texas 77056, the GUARANTORS (as defined
hereinafter) and
[          ], a [          ] banking corporation, as
Trustee (the “Trustee”).



RECITALS
OF THE COMPANY:




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured subordinated debentures, notes or other evidences
of indebtedness (herein called the “Securities”), which may but are not required to be guaranteed
by the Guarantors, to be issued in one or more series as provided in this Indenture.



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



     This Indenture is subject to the provisions of the Trust Indenture Act that are required to be
a part of this Indenture and, to the extent applicable, shall be governed by such provisions.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION



Section 1.1. Definitions.




     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:




     (1) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;




     (2) all terms used in this Indenture that are defined in the Trust Indenture Act,
defined by a Trust Indenture Act reference to another statute or defined by a Commission
rule under the Trust Indenture Act have the meanings so assigned to them;




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;




     (4) the words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision;




     (5) the words “Article” and “Section” refer to an Article and Section, respectively, of
this Indenture; and



 









 






     (6) the word “includes” and its derivatives means “includes, but is not limited to” and
corresponding derivative definitions.



     Certain terms, used principally in Article Six, are defined in that Article.


“Act”, when used with respect to any Holder, has the meaning specified in Section 1.5.



“Affiliate” of any specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



“Authenticating Agent” means any Person authorized by the Trustee to act on behalf of the Trustee
to authenticate Securities.



“Banking Day” means, in respect of any city, any date on which commercial banks are open for
business in that city.



“Bankruptcy Law” means any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law.



“Board of Directors” means either the board of directors of the Company or of a Guarantor, as
applicable, or any duly authorized committee of that board to which the powers of that board have
been lawfully delegated.



“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company, the principal financial officer of the Company or a Guarantor, any other
authorized officer of the Company or a Guarantor, or a person duly authorized by any of them, in
each case as applicable, to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee. Where any
provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms thereof), such action may
be taken by any committee, officer or employee of the Company or a Guarantor, as applicable,
authorized to take such action by the Board of Directors as evidenced by a Board Resolution.



“Business Day”, when used with respect to any Place of Payment or other location, means, except as
otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
that Place of Payment or other location are authorized or obligated by law, executive order or
regulation to close.



“CINS” means CUSIP International Numbering System.



“Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.




2









 







“Company” means the Person named as the “Company” in the first paragraph of this instrument until a
successor or resulting corporation shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Company” shall mean such successor or resulting corporation.



“Company Request” or “Company Order” means, in the case of the Company, a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents or any other duly authorized officer of the Company or any
person duly authorized by any of them, and delivered to the Trustee and, in the case of a
Guarantor, a written request or order signed in the name of such Guarantor by its Chairman of the
Board, its Chief Executive Officer, its President, any of its Vice Presidents or any other duly
authorized officer of such Guarantor or any person duly authorized by any of them, and delivered to
the Trustee.



“Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered and which, at the date hereof, is
located at
[          ].



“corporation” includes corporations, companies, associations, partnerships, limited partnerships,
limited liability companies, joint-stock companies and trusts.



“covenant defeasance” has the meaning specified in Section 13.3.



“CUSIP” means the Committee on Uniform Securities Identification Procedures.



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



“Debt” means any obligation created or assumed by any Person for the repayment of money borrowed
and any purchase money obligation created or assumed by such Person and any guarantee of the
foregoing.



“Default” means, with respect to a series of Securities, any event that is, or after notice or
lapse of time or both would be, an Event of Default.



“Defaulted Interest” has the meaning specified in Section 3.7.



“defeasance” has the meaning specified in Section 13.2.



“Definitive Security” means a security other than a Global Security or a temporary Security.



“Depositary” means, with respect to the Securities of any series issuable or issued in whole or in
part in the form of one or more Global Securities, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Securities as contemplated by Section 3.1,
until a successor Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter shall mean or include each Person which is a Depositary hereunder, and if
at any time there is more than one such Person, shall be a collective reference to such Persons.



“Dollar” or “$” means the coin or currency of the United States of America, which at the time of
payment is legal tender for the payment of public and private debts.



“Event of Default” has the meaning specified in Section 5.1.



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




3









 







“Foreign Currency” means a currency used by the government of a country other than the United
States of America.



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



“Global Security” means a Security in global form that evidences all or part of a series of
Securities and is authenticated and delivered to, and registered in the name of, the Depositary for
the Securities of such series or its nominee.



“Guarantee” has the meaning specified in Section 14.1.



“Guarantor” means any Person that becomes a guarantor of any Securities pursuant to the applicable
provisions of this Indenture.



“Guarantor Senior Debt” means, unless otherwise provided with respect to the Securities of a series
as contemplated by Section 3.1, (1) all Debt of a Guarantor, whether currently outstanding or
hereafter issued, unless, by the terms of the instrument creating or evidencing such Debt, it is
provided that such Debt is not superior in right of payment to the Guarantee or to other Debt which
is pari passu with or subordinated to the Guarantee, and (2) any modifications, refunding,
deferrals, renewals or extensions of any such Debt or securities, notes or other evidence of Debt
issued in exchange for such Debt; provided that in no event shall “Guarantor Senior Debt” include
(a) Debt of a Guarantor owed or owing to any Subsidiary of such Guarantor or any officer, director
or employee of such Guarantor or any Subsidiary of such Guarantor, (b) Debt to trade creditors or
(c) any liability for taxes owed or owing by a Guarantor.



“Holder” means a Person in whose name a Security is registered in the Security Register.



“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 pursuant to the
applicable provisions hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be part of and
govern this instrument and any such supplemental indenture, respectively. The term “Indenture” also
shall include the terms of particular series of Securities established as contemplated by Section
3.1.



“interest”, when used with respect to an Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable after Maturity.



“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.



“Judgment Currency” has the meaning specified in Section 1.16.



“mandatory sinking fund payment” has the meaning specified in Section 12.1.



“Maturity”, when used with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.




4









 







“Notice of Default” means a written notice of the kind specified in Section 5.1(3) or Section
5.1(4).



“Officer’s Certificate” means, in the case of the Company, a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President or any other duly
authorized officer of the Company, or a person duly authorized by any of them, and delivered to the
Trustee and, in the case of a Guarantor, a certificate signed by the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President or any other duly authorized officer of
such Guarantor, or a person duly authorized by any of them, and delivered to the Trustee.



“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for
the Company or a Guarantor, as the case may be, and who shall be reasonably acceptable to the
Trustee.



“optional sinking fund payment” has the meaning specified in Section 12.1.



“Original Issue Discount Security” means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2.



“Outstanding”, when used with respect to Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture, except:





     (i) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;




     (ii) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, however, that, if such
Securities are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been made;




     (iii) Securities which have been paid pursuant to Section 3.6 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company; and




     (iv) Securities, except to the extent provided in Section 13.2 and 13.3, with respect
to which the Company has effected defeasance or covenant defeasance as provided in Article
Thirteen, which defeasance or covenant defeasance then continues in effect;


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (A) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable
as of the date of such determination upon acceleration of the Maturity thereof on such date
pursuant to Section 5.2, (B) the principal amount of a Security denominated in one or more
currencies or currency units other than U.S. dollars shall be the U.S. dollar equivalent of such
currencies or currency units, determined in the manner provided as contemplated by Section 3.1 on
the date of original issuance of such Security or by Section 1.15, if not otherwise so provided
pursuant to Section 3.1, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent (as so determined) on the date of

5









 








original issuance of such Security of the amount determined as provided in Clause (A) above) of
such Security, and (C) Securities owned by the Company, any Guarantor or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned as
described in Clause (C) of the immediately preceding sentence which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right to act with respect to such Securities and that the pledgee is not the Company, a
Guarantor or any other obligor upon the Securities or any Affiliate of the Company or of such other
obligor.



“Paying Agent” means any Person authorized by the Company to pay the principal of and any premium
or interest on any Securities on behalf of the Company.



“Periodic Offering” means an offering of Securities of a series from time to time, the specific
terms of which Securities, including, without limitation, the rate or rates of interest or formula
for determining the rate or rates of interest thereon, if any, the Stated Maturity or Stated
Maturities thereof, the original issue date or dates thereof, the redemption provisions, if any,
with respect thereto, and any other terms specified as contemplated by Section 3.1 with respect
thereto, are to be determined by the Company upon the issuance of such Securities.



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



“Place of Payment”, when used with respect to the Securities of any series, means, unless otherwise
specifically provided for with respect to such series as contemplated by Section 3.1, the office or
agency of the Company in the City of New York and such other place or places where, subject to the
provisions of Section 10.2, the principal of and any premium and interest on the Securities of that
series are payable as contemplated by Section 3.1.



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



“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture.



“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which
it is to be redeemed pursuant to this Indenture.



“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of
any series means the date specified for that purpose as contemplated by Section 3.1.



“Required Currency” has the meaning specified in Section 1.16.



“Responsible Officer” when used with respect to the Trustee, means any officer within the Corporate
Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of
the Trustee customarily performing functions similar to those performed by any of the above
designated

6









 








officers and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with the particular
subject.



“Securities” has the meaning stated in the first recital of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.



“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.5.



“Senior Debt” means (1) all Debt of the Company, whether currently outstanding or hereafter issued,
unless, by the terms of the instrument creating or evidencing such Debt, it is provided that such
Debt is not superior in right of payment to the Securities, and (2) any modifications, refunding,
deferrals, renewals or extensions of any such Debt or securities, notes or other evidence of Debt
issued in exchange for such Debt; provided that in no event shall “Senior Debt” include (a) Debt of
the Company owed or owing to any Subsidiary of the Company or any officer, director or employee of
the Company or any Subsidiary of the Company, (b) Debt to trade creditors or (c) any liability for
taxes owned or owing by the Company.



“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.7.



“Stated Maturity”, when used with respect to any Security or any installment of principal thereof
or interest thereon, means the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is due and payable.



“Subsidiary” means (i) a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries or (ii) any partnership or similar business organization
more than 50% of the ownership interests having ordinary voting power of which shall at the time be
so owned. For the purposes of this definition, “voting stock” means capital stock or equity
interests which ordinarily have voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by reason of any contingency.



“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if
at any time there is more than one such Person, “Trustee” as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.



“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the date as
of which this instrument was executed, except as provided in Section 9.5; provided, however, that
if the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.



“U.S. Person” shall have the meaning assigned to such term in Section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended.



“U.S. Government Obligations” means securities which are (i) direct obligations of the United
States 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,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the
United States, each of which are not callable or redeemable at the option of the issuer thereof.




7









 







“Vice President”, when used with respect to the Company, the Guarantor or the Trustee, means any
vice president, whether or not designated by a number or a word or words added before or after the
title “vice president.”



Section 1.2. Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act
terms used in this Indenture have the following meanings:



          “commission” means the Commission.




          “indenture securities” means the Securities.




          “indenture security holder” means a Holder.




          “indenture to be qualified” means this Indenture.




          “indenture trustee” or “institutional trustee” means the Trustee.




          “obligor” on the indenture securities means the Company, the Guarantor (if
applicable) or any other obligor on the indenture securities.




     All terms used in this Indenture that are defined by the Trust Indenture Act, defined by a
Trust Indenture Act reference to another statute or defined by a Commission rule under the Trust
Indenture Act have the meanings so assigned to them.


Section 1.3. Compliance Certificates and Opinions.




     Upon any application or request by the Company or a Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or such Guarantor, as the case may be,
shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if
any, 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, if
any, have been complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or opinion need be
furnished except as required under Section 314(c) of the Trust Indenture Act.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 10.5) shall include:




     (1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;




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




     (3) a statement that, in the opinion of each such individual, 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



8









 






     (4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.


Section 1.4. Form of Documents Delivered to Trustee.




     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.



     Any certificate or opinion of an officer of the Company or a Guarantor may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows or, in the exercise of reasonable care, should know that the certificate
or opinion or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of the Company or the Guarantor, as the case may be, stating that the information with respect to
such factual matters is in the possession of the Company or the Guarantor, as the case may be,
unless such counsel knows that the certificate or opinion or representations with respect to such
matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



     Section 1.5. Acts of Holders; Record Dates.




     (a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor
signed (either physically or by means of a facsimile or an electronic transmission,
provided that such electronic transmission is transmitted through the facilities of
a Depositary) by such Holders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company or the Guarantors. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee, the
Company and, if applicable, the Guarantors, if made in the manner provided in this
Section.




     (b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such



9









 







instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.




     (c) The ownership, principal amount and serial numbers of Securities held by
any Person, and the date of commencement of such Person’s holding of same, shall be
proved by the Security Register.




     (d) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, the Company or, if applicable, the
Guarantors in reliance thereon, whether or not notation of such action is made upon
such Security.




     (e) Without limiting the foregoing, a Holder entitled to give or take any
action hereunder with regard to any particular Security may do so with regard to all
or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with regard to
all or any different part of such principal amount.




     (f) The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver or other
Act provided or permitted by this Indenture to be given or taken by Holders of
Securities of such series, but the Company shall have no obligation to do so. With
regard to any record date set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to give or take the relevant
action, whether or not such Holders remain Holders after such record date.


Section 1.6. Notices, Etc., to Trustee, Company and Guarantors.




     Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,




     (1) the Trustee by any Holder, a Guarantor or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: [Corporate Trust Department],




     (2) the Company by the Trustee, a Guarantor or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument to the attention of the
Corporate Secretary, or at any other address previously furnished in writing to the Trustee
by the Company, or




     (3) a Guarantor by the Company, the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to such Guarantor addressed to it at One Riverway,
Suite 1400, Houston, Texas 77056 to the attention of the Corporate Secretary, or at any
other address previously furnished in writing to the Trustee by the Guarantor.



10









 




Section 1.7. Notice to Holders; Waiver.




     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such notice.



     Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



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


Section 1.8. Conflict with Trust Indenture Act.




     If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.


Section 1.9. 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 1.10. Successors and Assigns.




     All covenants and agreements in this Indenture by each of the Company and the Guarantors shall
bind their respective successors and assigns, whether so expressed or not.


Section 1.11. Separability Clause.




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


Section 1.12. Benefits of Indenture.




     Nothing in this Indenture or in the Securities or, if applicable, the Guarantee, express or
implied, shall give to any Person, other than the parties hereto and their successors hereunder,
the holders of Senior Debt and the Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.



11









 




Section 1.13. Governing Law.




     THIS INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


Section 1.14. Legal Holidays.




     In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities or, if applicable, the Guarantee (other than a
provision of the Securities of any series or, if applicable, the Guarantee that specifically states
that such provision shall apply in lieu of this Section 1.14)) payment of interest or principal and
any premium need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest
shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.


Section 1.15. Securities in a Composite Currency, Currency Unit or Foreign Currency.




     Unless otherwise specified in an Officer’s Certificate delivered pursuant to Section 3.1 of
this Indenture with respect to a particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified percentage in aggregate principal
amount of Securities of all series or all series affected by a particular action at the time
Outstanding and, at such time, there are Outstanding Securities of any series which are denominated
in a coin, currency or currencies other than Dollars (including, but not limited to, any composite
currency, currency units or Foreign Currency), then the principal amount of Securities of such
series which shall be deemed to be Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For purposes
of this Section 1.15, the term “Market Exchange Rate” shall mean the noon Dollar buying rate in The
City of New York for cable transfers of such currency or currencies as published by the Federal
Reserve Bank of New York, as of the most recent available date. If such Market Exchange Rate is not
so available for any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations or rates of exchange from one or more
major banks in The City of New York or in the country of issue of the currency in question, which
for purposes of euros shall be Brussels, Belgium, or such other quotations or rates of exchange as
the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a series denominated in a currency other
than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of
this Indenture.



     All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.


Section 1.16. Payment in Required Currency; Judgment Currency.




     Each of the Company and the Guarantors agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due in respect of the principal of or interest on the Securities of
any series (the “Required Currency”) into a currency in which a judgment will be rendered (the
“Judgment Currency”), the rate of



12









 




exchange used shall be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment Currency on the day
on which final unappealable judgment is entered, unless such day is not a Banking Day, then, to the
extent permitted by applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Banking Day next preceding the day on which
final unappealable judgment is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with subclause (a)), in any
currency other than the Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required Currency expressed
to be payable in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture.




Section 1.17. Language of Notices, Etc.




     Any request, demand, authorization, direction, notice, consent, waiver or Act required or
permitted under this Indenture shall be in the English language, except that any published notice
may be in an official language of the country of publication.


Section 1.18. Incorporators, Shareholders, Officers and Directors of the Company and the
Guarantors Exempt from Individual Liability.




     No recourse under or upon any obligation, covenant or agreement of or contained in this
Indenture or of or contained in any Security or, if applicable, the Guarantee, or for any claim
based thereon or otherwise in respect thereof, or in any Security or, if applicable, the Guarantee,
or because of the creation of any indebtedness represented thereby, shall be had against any
incorporator, shareholder, member, officer, manager or director, as such, past, present or future,
of the Company, any Guarantor or any successor Person, either directly or through the Company, any
Guarantor or any successor Person, 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
all such liability is hereby expressly waived and released as a condition of, and as a part of the
consideration for, the execution of this Indenture and the issue of the Securities.



ARTICLE TWO

SECURITY FORMS



Section 2.1. Forms Generally.




     The Securities of each series and, if applicable, the notation thereon relating to the
Guarantee, shall be in substantially the form set forth in this Article Two, or in such other form
or forms as shall be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or as may, consistently herewith, be determined
by the officers executing such Securities and, if applicable, the Guarantee, as evidenced by their
execution thereof.



13









 





     The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution thereof. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an authorized officer or other authorized person on behalf of the
Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated
by Section 3.3 for the authentication and delivery of such Securities.



     The forms of Global Securities of any series shall have such provisions and legends as are
customary for Securities of such series in global form, including without limitation any legend
required by the Depositary for the Securities of such series.


Section 2.2. Form of Face of Security.



[If
the Security is an Original Issue Discount Security, insert—FOR PURPOSES OF SECTION 1275 OF THE
UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT
IS . . . . . . . ., THE ISSUE DATE IS . . . . . ., 20. . . [AND] [,] THE YIELD TO MATURITY IS . . .
        . . . . . [,] [AND THE ORIGINAL ISSUE DISCOUNT FOR THE SHORT ACCRUAL PERIOD IS . . . . . . . . AND
THE METHOD USED TO DETERMINE THE YIELD THEREFOR IS . . . . .]]



[Insert any other legend required by the United States Internal Revenue Code or the regulations
thereunder.]



[If
a Global Security,—insert legend required by Section 204 of
the Indenture] [If applicable,
insert —UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]




WCA WASTE CORPORATION




[TITLE OF SECURITY]




	 	 	 
	No

	 	U.S.
$           






[CUSIP No. ]



WCA WASTE CORPORATION, a company duly incorporated under the laws of the State of Delaware (herein
called the “Company”, which term includes any successor or resulting Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay
to ................................, or registered assigns, the
principal sum of ....................................................
United States Dollars on ........................................
[If the Security is to bear interest prior to Maturity,
insert—, and to pay interest thereon from . . . . . . . . . . or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually on ...... and
....... in each year, commencing ......, at the rate of




14









 







. . . . %
per annum, until the principal hereof is paid or made available for
payment [if
applicable, insert—, and at the rate of ___% per annum on any overdue principal and premium and on
any installment of interest (to the extent that the payment of such interest shall be legally
enforceable)]. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the . . . . or . . . . (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].



[If
the Security is not to bear interest prior to Maturity, insert—The principal of this Security
shall not bear interest except in the case of a default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of . . . .% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of . . . . % per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly provided for, and
such interest shall also be payable on demand.]



[If
a Global Security, insert—Payment of the principal of (and
premium, if any) and [if applicable,
insert—any such] interest on this Security will be made by transfer of immediately available funds
to a bank account in ___designated by the Holder in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private debts
[state other currency].]



[If a Definitive Security, insert—Payment of the principal of (and premium, if any) and [if
applicable, insert—any such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in ___, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private
debts] [state other currency] [or subject to any laws or regulations applicable thereto and to the
right of the Company (as provided in the Indenture) to rescind the designation of any such Paying
Agent, at the [main] offices of ___in ___, or at such other offices or
agencies as the Company may designate, by [United States Dollar] [state other currency] check drawn
on, or transfer to a [United States Dollar] account maintained by the payee with, a bank in The
City of New York (so long as the applicable Paying Agency has received proper transfer instructions
in writing at least ___days prior to the payment
date)] [if applicable, insert—; provided,
however, that payment of interest may be made at the option of the Company by [United States
Dollar] [state other currency] check mailed to the addresses of the Persons entitled thereto as
such addresses shall appear in the Security Register] [or by transfer to a [United States Dollar]
[state other currency] account maintained by the payee with a bank in The City of New York [state
other Place of Payment] (so long as the applicable Paying Agent has received proper transfer
instructions in writing by the Record Date prior to the applicable Interest Payment Date)].]



15









 






Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



Unless the certificate of authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.




     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 	 	 	 	 
	 

	 	Dated:	 	 	 	 	 	 
	 	 	 	 	WCA WASTE CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 





Section 2.3. Form of Reverse of Security.



This Security is one of a duly authorized issue of subordinated securities of the Company (herein
called the “Securities”), issued and to be issued in one or more series under an Indenture, dated
as of
___[           ], 200___(herein called the “Indenture”),
between the Company, the Guarantors and
[          ], as Trustee (herein called the
“Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement, of the respective
rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the
Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered. As provided in the Indenture, the Securities may be issued in
one or more series, which different series may be issued in various aggregate principal amounts,
may mature at different times, may bear interest, if any, at different rates, may be subject to
different redemption provisions, if any, may be subject to different sinking, purchase or analogous
funds, if any, may be subject to different covenants and Events of Default and may otherwise vary
as in the Indenture provided or permitted. This Security is one of the series designated on the
face hereof [, limited in aggregate principal amount to $ . . . . . . . . . . ].



This
security is the general, unsecured, subordinated obligation of the
Company [if applicable,
insert—and is guaranteed pursuant to a guarantee (the
“Guarantee”) by [insert name of each
Guarantor] (the “Guarantors”). The Guarantee is the general, unsecured, subordinated obligation of
each Guarantor.]



[If
applicable, insert—The Securities of this series are subject to redemption upon not less than
        ... days’ notice
by mail, [if applicable, insert, —(1) on . . . . . . . . . . . . . . in any year
commencing with the year . . . . and ending with the year . . . . through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal amount, and (2) ] at any
time [on or after . . . . . . . . . ., 20. . . ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before . . . . . . . . . . . . . . . , . . . . . %, and if redeemed] during the
12-month period beginning . . . . . . . . of the years indicated,





16









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	Year	 	Redemption Price	 	 	Year	 	 	Redemption Price	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 




and thereafter at a Redemption Price equal to . . . . . % of the principal amount, together in the
case of any such redemption [if applicable, insert—(whether through operation of the sinking fund
or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]



[If applicable, insert—The Securities of this series are subject to redemption upon not less
than... nor more than ... days’ notice by mail, (1) on . . . . . . . . in any year commencing with
the year . . . . and ending with the year . . . . through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at anytime [on or after . . . . . . . . . . ], as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning . . . . . . . . . . . . . . of the years indicated,




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Redemption Price for	 
	 	 	Redemption Price For	 	 	Redemption Otherwise Than	 
	 	 	Redemption Through	 	 	Through Operation of the	 
	Year	 	Operation of the Sinking Fund	 	 	Sinking Fund	 
	 
	 	 	 	 	 	 	 	 




and thereafter at a Redemption Price equal to . . . . % of the principal amount, together in the
case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]



[If applicable, insert—Notwithstanding the foregoing, the Company may not, prior to . . . . . . . . . ., redeem any Securities of this series as contemplated by [Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than . . . .% per annum.]




17









 







[If applicable, insert—The sinking fund for this series provides for the redemption on . . . . . . . . . . . . in each year beginning with the year . . . . and ending with the year . . . . of [not
less than] $ . . . . . . . . . . . . [ (“mandatory sinking fund”) and not more than $ . . . . . . . . . . . . ] aggregate principal amount of Securities of this series. [Securities of this series
acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required to be made [If
applicable, insert— in the inverse order in which they become due].]



[If the Securities are subject to redemption in part of any kind, insert—In the event of redemption
of this Security in part only, a new Security or Securities of this series and of like tenor for
the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]



[If applicable, insert—The Securities of this series are not redeemable prior to Stated Maturity.]



[If the Security is not an Original Issue Discount Security,—If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect provided in the
Indenture.]



[If the Security is an Original Issue Discount Security,—If an Event of Default with respect to
Securities of this series shall occur and be continuing, an amount of principal of the Securities
of this series may be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to —insert formula for determining the amount. Upon payment
(i) of the amount of principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Company’s obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall terminate.]



The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company [If applicable, insert—and the
Guarantors] and the rights of the Holders of the Securities of each series to be affected under the
Indenture at any time by the Company [If applicable, insert—and the Guarantors] and the Trustee
with the consent of the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
Company [If applicable, insert—and the Guarantors] with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.



No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Security at the times, place(s) and rate,
and in the coin or currency, herein prescribed.



[If a Global Security, insert—This Global Security or portion hereof may not be exchanged for
Definitive Securities of this series except in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled to receive
physical delivery of Definitive Securities except as described in the Indenture and will not be
considered the Holders thereof for any purpose under the Indenture.]




18









 







[If a Definitive Security, insert—As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency of the Company in
[if applicable, insert—any place where the principal of and any premium and interest on this
Security are payable] [if applicable, insert—The City of New York [, or, subject to any laws or
regulations applicable thereto and to the right of the Company (limited as provided in the
Indenture) to rescind the designation of any such transfer agent, at the [main] offices of
                     in                      or at such other offices or agencies as the Company may
designate]], duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of this series and of
like tenor, of authorized denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.]



The Securities of this series are issuable only in registered form without coupons in denominations
of U.S. $ . . . . . . . . and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.



No service charge shall be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.



Prior to due presentment of this Security for registration of transfer, the Company, [If
applicable, insert—any Guarantor,] the Trustee and any agent of the Company [If applicable,
insert—, a Guarantor] or the Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue, and none of the
Company, [If applicable, insert—the Guarantors,] the Trustee nor any such agent shall be affected
by notice to the contrary.



This Security is subordinated in right of payment to Senior Debt [If applicable, insert-and the
Guarantee is subordinated in right of payment to Guarantor Senior Debt], to the extent and in the
manner provided in the Indenture.



No recourse under or upon any obligation, covenant or agreement of or contained in the Indenture or
of or contained in any Security, [If applicable, insert—, or the Guarantee endorsed thereon,] or
for any claim based thereon or otherwise in respect thereof, or in any Security [If applicable,
insert—or in the Guarantee], or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, shareholder, member, officer, manager or director, as such,
past, present or future, of the Company [If applicable, insert—or any Guarantor] or of any
successor Person, either directly or through the Company [If applicable, insert—or any Guarantor]
or any successor Person, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment, penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released by the acceptance hereof and as a condition of,
and as part of the consideration for, the Securities and the execution of the Indenture.



The Indenture provides that the Company [If applicable, insert—and the Guarantors] (a) will be
discharged from any and all obligations in respect of the Securities (except for certain
obligations described in the Indenture), or (b) need not comply with certain restrictive covenants
of the Indenture, in each case if the Company [If applicable, insert—or a Guarantor] deposits, in
trust, with the Trustee money or U.S. Government Obligations (or a combination thereof) which
through the payment of interest thereon and principal thereof in accordance with their terms will
provide money, in an amount sufficient


19









 







to pay all the principal of and interest on the Securities, but such money need not be segregated
from other funds except to the extent required by law.



Except as otherwise defined herein, all terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.



[If a Definitive Security, insert as a separate page—




FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto



 




(Please Print or Typewrite Name and Address of Assignee)




the within instrument of WCA WASTE CORPORATION and does hereby irrevocably constitute and appoint
                     Attorney to transfer said instrument on the books of the within-named Company,
with full power of substitution in the premises.



Please Insert Social Security or Other Identifying Number of Assignee:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

(Signature)
	 	 





NOTICE: The signature to this assignment must correspond with the name as written upon the face of
the within instrument in every particular, without alteration or enlargement or any change
whatever.]



[If a Security to which Article Fourteen has been made applicable, insert the following Form of
Notation on such Security relating to the Guarantee—



Each of the Guarantors (which term includes any successor Person in such capacity under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities and all other amounts due and
payable under the Indenture and the Securities by the Company.



The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to the
Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Guarantee.




	 	 	 	 	 	 	 
	 	 	Guarantors:	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF EACH GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	]	 
	 

	 	 	 	
 	 	 





Section 2.4. Global Securities.




     Every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:



20









 







THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN
THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF,
OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.



     If Securities of a series are issuable in whole or in part in the form of one or more Global
Securities, as specified as contemplated by Section 3.1, then, notwithstanding clause (9) of
Section 3.1 and the provisions of Section 3.2, any Global Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities represented thereby may from time to time be
reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any reduction or increase in the amount, of Outstanding
Securities represented thereby shall be made in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions of
Sections 3.3, 3.4 and 3.5, the Trustee shall deliver and redeliver any Global Security in the
manner and upon instructions given by the Person or Persons specified therein or in the applicable
Company Order. Any instructions by the Company with respect to endorsement or delivery or
redelivery of a Global Security shall be in a Company Order (which need not comply with Section 1.3
and need not be accompanied by an Opinion of Counsel).



     The provisions of the last sentence of Section 3.3 shall apply to any Security represented by
a Global Security if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Global Security together with a Company Order (which need not comply
with Section 1.3 and need not be accompanied by an Opinion of Counsel) with regard to the reduction
or increase, as the case may be, in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of Section 3.3.


Section 2.5. Form of Trustee’s Certificate of Authentication.




     The Trustee’s certificate(s) of authentication shall be in substantially the following form:




  This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 	 	 
	 	 	[                               ],	 	 
	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Officer
	 	 






21









 





ARTICLE THREE

THE SECURITIES



Section 3.1. Amount Unlimited; Issuable in Series.




     The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.



     The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officer’s
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,




     (1) the title of the Securities of the series (which shall distinguish the Securities
of the series from all other Securities and which may be part of a series of Securities
previously issued);




     (2) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);




     (3) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest;




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




     (5) the rate or rates at which the Securities of the series shall bear interest, if
any, or the formula, method or provision pursuant to which such rate or rates are
determined, the date or dates from which such interest shall accrue or the method of
determination thereof, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest Payment Date;




     (6) the place or places where, subject to the provisions of Section 10.2, the principal
of and any premium and interest on Securities of the series shall be payable, Securities of
the series may be surrendered for registration of transfer, Securities of the series may be
surrendered for exchange and notices, and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;




     (7) the period or periods within 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;




     (8) the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which and the terms
and conditions



22









 







upon which Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;




     (9) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;




     (10) whether payment of principal of and premium, if any, and interest, if any, on the
Securities of the series shall be without deduction for taxes, assessments or governmental
charges paid by Holders of the series;




     (11) 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 5.2;




     (12) if the amount of payments of principal of and any premium or interest on the
Securities of the series may be determined with reference to an index, the manner in which
such amounts shall be determined;




     (13) if and as applicable, that the Securities of the series shall be issuable in whole
or in part in the form of one or more Global Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global Securities and any circumstances other than
those set forth in Section 3.5 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such transfer may
be registered;




     (14) any deletions from, modifications of or additions to the Events of Default set
forth in Section 5.1 or the covenants of the Company set forth in Article Ten with respect
to the Securities of such series;




     (15) whether and under what circumstances the Company will pay additional amounts on
the Securities of the series held by a Person who is not a U.S. Person in respect of any
tax, assessment or governmental charge withheld or deducted and, if so, whether the Company
will have the option to redeem the Securities of the series rather than pay such additional
amounts;




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




     (17) if the Securities of the series are to be convertible into or exchangeable for any
other security or property of the Company, including, without limitation, securities of
another Person held by the Company or its Affiliates and, if so, the terms thereof;




     (18) if other than as provided in Sections 13.2 and 13.3, the means of defeasance or
covenant defeasance as may be specified for the Securities of the series;




     (19) if other than the Trustee, the identity of the initial Security Registrar and any
initial Paying Agent;



23









 






     (20) whether the Securities of the series will be guaranteed pursuant to the Guarantee
set forth in Article Fourteen, any modifications to the terms of Article Fourteen applicable
to the Securities of such series and the applicability of any other guarantees; and




     (21) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture).



     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 the Board Resolution referred to above
and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officer’s
Certificate referred to above or in any such indenture supplemental hereto.



     All Securities of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for increases in the
aggregate principal amount of such series of Securities and issuances of additional Securities of
such series or for the establishment of additional terms with respect to the Securities of such
series.



     If any of the terms of the series are established by action taken by or pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by an authorized
officer or other authorized person on behalf of the Company and, if applicable, the Guarantors and
delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth, or
providing the manner for determining, the terms of the series.



     With respect to Securities of a series subject to a Periodic Offering, such Board Resolution
or Officer’s Certificate may provide general terms for Securities of such series and provide either
that the specific terms of particular Securities of such series shall be specified in a Company
Order or that such terms shall be determined by the Company and, if applicable, the Guarantors or
one or more agents thereof designated in an Officer’s Certificate, in accordance with a Company
Order.


Section 3.2. Denominations.




     The Securities of each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 3.1. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.


Section 3.3. Execution, Authentication, Delivery and Dating.




     The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer or any of its Vice Presidents
and need not be attested. The signature of any of these officers on the Securities may be manual or
facsimile. Any Guarantee endorsed on the Securities shall be executed on behalf of the applicable
Guarantor by its Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or any of its Vice Presidents and need not be attested.



     Securities and any Guarantee bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company or a Guarantor, as the case may be, shall bind
the Company or such Guarantor, as the case may be, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.



24









 





     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 Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that in the case of Securities offered in a Periodic Offering,
the Trustee shall authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents, thereafter promptly
confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company
Order delivered to the Trustee prior to the time of the first authentication of Securities of such
series. If the forms or terms of the Securities of the series have been established in or pursuant
to one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive such documents as it may reasonably request.
The Trustee shall also be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating,




     (a) if the form or forms of such Securities has been established in or pursuant
to a Board Resolution as permitted by Section 2.1, that each such form has been
established in conformity with the provisions of this Indenture;




     (b) if the terms of such Securities have been, or in the case of Securities of
a series offered in a Periodic Offering will be, established in or pursuant to a
Board Resolution as permitted by Section 3.1, that such terms have been, or in the
case of Securities of a series offered in a Periodic Offering will be, established
in conformity with the provisions of this Indenture, subject, in the case of
Securities of a series offered in a Periodic Offering, to any conditions specified
in such Opinion of Counsel; and




     (c) that such Securities when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions and assumptions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company and, if applicable, the Guarantors, enforceable in
accordance with their terms, subject to the following limitations: (i) bankruptcy,
insolvency, moratorium, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws of general applicability relating to or affecting
the enforcement of creditors’ rights, or to general equity principles, (ii) the
availability of equitable remedies being subject to the discretion of the court to
which application therefor is made; and (iii) such other usual and customary matters
as shall be specified in such Opinion of Counsel.



     If such form or forms or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.



     Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officer’s Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
time of authentication of each Security of such series if such documents are delivered at or prior
to the authentication upon original issuance of the first Security of such series to be issued.



25









 





     With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, on the form or forms and terms
thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such series.



     Each Security shall be dated the date of its authentication.



     No Security, nor any Guarantee endorsed thereon, shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein executed by the Trustee
by manual signature of an authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


Section 3.4. Temporary Securities.




     Pending the preparation of Definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the Definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.



     If temporary Securities of any series are issued, the Company will cause Definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of Definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
Definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Securities of the same series and tenor of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities of such series.


Section 3.5. Registration, Registration of Transfer and Exchange.




     The Company shall cause to be kept at the office or agency of the Company in the Borough of
Manhattan, the City of New York or in any other office or agency of the Company in a Place of
Payment required by Section 10.2 a register (the register maintained in such office being herein
sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed as the initial “Security Registrar” for the purpose
of registering Securities and transfers of Securities as herein provided and its corporate trust
office, which, at the date hereof, is located at [                              ], [New York, New York] [          ], is the initial office or agency
in the Borough of Manhattan where the Securities Register will be maintained. The Company may at
any time replace such Security Registrar, change such office or agency or act as its own Security
Registrar. The Company will



26









 







give prompt written notice to the Trustee of any change of the Security Registrar or of the
location of such office or agency.



     Upon surrender for registration of transfer of any Security of any series at the office or
agency maintained pursuant to Section 10.2 for such purpose, the Company and, if applicable, the
Guarantors shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities, with an endorsement of the
Guarantee, if applicable, executed by the Guarantors, of the same series and tenor, of any
authorized denominations and of a like aggregate principal amount.



     At the option of the Holder, Securities of any series (except a Global Security) may be
exchanged for other Securities of the same series and tenor, of any authorized denominations and of
a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the Company and, if applicable,
the Guarantors shall execute and the Trustee shall authenticate and deliver, the Securities, with
an endorsement of the Guarantee, if applicable, executed by the Guarantors, which the Holder making
the exchange is entitled to receive.



     All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company and, if applicable, the Guarantors evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.



     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.



     The Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at, the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 11.3 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.



     Notwithstanding any other provisions of this Indenture and except as otherwise specified with
respect to any particular series of Securities as contemplated by Section 3.1, a Global Security
representing all or a portion of the Securities of a series may not be transferred, except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
Every Security authenticated and delivered upon registration of, transfer of, or in exchange for or
in lieu of, a Global Security shall be a Global Security except as provided in the two paragraphs
immediately following.



     If at any time the Depositary for any Securities of a series represented by one or more Global
Securities notifies the Company that it is unwilling or unable to continue as Depositary for such
Securities



27









 







or if at any time the Depositary for such Securities shall no longer be eligible to continue as
Depositary under Section 3.1 or ceases to be a clearing agency registered under the Exchange Act,
the Company shall appoint a successor Depositary with respect to such Securities. If a successor
Depositary for such Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to
Section 3.1 that such Securities be represented by one or more Global Securities shall no longer be
effective and the Company and, if applicable, the Guarantors will execute and the Trustee, upon
receipt of a Company Order for the authentication and delivery of Definitive Securities of such
series, will authenticate and deliver, Securities, with an endorsement of the Guarantee, if
applicable, executed by the Guarantors, of such series in definitive registered form without
coupons, in any authorized denominations, in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such Securities in exchange for such
Global Security or Securities registered in the names of such Persons as the Depositary shall
direct.



     The Company may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more Global Securities shall no longer be represented by a
Global Security or Securities. In such event the Company and, if applicable, the Guarantors will
execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of the
Definitive Securities of such series, will authenticate and deliver, Securities, with an
endorsement of the Guarantee, if applicable, executed by the Guarantors, of such series in
definitive registered form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or Securities representing
such Securities in exchange for such Global Security or Securities registered in the names of such
Persons as the Depositary shall direct.



     If specified by the Company pursuant to Section 3.1 with respect to Securities represented by
a Global Security, the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for Securities of the same series and tenor in definitive registered
form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company
and, if applicable, the Guarantors shall execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of Securities in definitive registered form, shall authenticate
and deliver, without service charge,




     (1) to the Person specified by such Depositary a new Security or Securities, with an
endorsement of the Guarantee, if applicable, executed by the Guarantors, of the same series
and tenor, of any authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person’s beneficial interest in the
Global Security; and




     (2) to such Depositary a new Global Security, with an endorsement of the Guarantee, if
applicable, executed by the Guarantors, in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to clause (1) above.


Every Person who takes or holds any beneficial interest in a Global Security agrees that:





     (a) the Company, the Guarantors (if applicable) and the Trustee may deal with
the Depositary as sole owner of the Global Security and as the authorized
representative of such Person;




     (b) such Person’s rights in the Global Security shall be exercised only through
the Depositary and shall be limited to those established by law and agreement
between such Person and the Depositary and/or direct and indirect participants of
the Depositary;



28









 






     (c) the Depositary and its participants make book-entry transfers of beneficial
ownership among, and receive and transmit distributions of principal and interest on
the Global Securities to, such Persons in accordance with their own procedures; and




     (d) none of the Company, the Guarantors (if applicable), the Trustee, nor any
agent of any of them will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of
a Global Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.


Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.




     If any mutilated Security is surrendered to the Trustee, together with, in proper cases, such
security or indemnity as may be required by the Company, the Guarantors (if applicable) or the
Trustee to save each of them and any agent of any of them harmless, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security, with an endorsement
of the Guarantee, if applicable, executed by the Guarantors, of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.



     If there shall be delivered to the Company, the Guarantors (if applicable) and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company and, if applicable, the Guarantors shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security, with an endorsement of the Guarantee, if
applicable, executed by the Guarantors, of the same series and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.



     Upon the issuance of any new Security under this Section, 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.



     Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company and, if applicable, the Guarantors, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that series duly issued
hereunder.



     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.


Section 3.7. Payment of Interest; Interest Rights Preserved.




     Except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any



29









 







Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest.



     Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon, the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).




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


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



Section 3.8. Persons Deemed Owners.




     Except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, prior to due presentment of a Security for registration of transfer, the Company, the
Trustee and, if applicable, the Guarantors and any agent thereof may treat the Person in whose name
such Security is registered as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Sections 3.5 and 3.7) any interest on such Security
and for all other purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Trustee nor, if applicable, the Guarantors nor any agent of any of them shall be
affected by notice to the contrary.



30









 





     No holder of any beneficial interest in any Global Security held on its behalf by a Depositary
shall have any rights under this Indenture with respect to such Global Security, and such
Depositary may be treated by the Company, the Trustee, and, if applicable, the Guarantors and any
agent thereof as the owner of such Global Security for all purposes whatsoever.


Section 3.9. Cancellation.




     All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with its customary practices, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.


Section 3.10. Computation of Interest.




     Except as otherwise specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day
months.


Section 3.11. CUSIP or CINS Numbers.




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



ARTICLE FOUR

SATISFACTION AND DISCHARGE



Section 4.1. Satisfaction and Discharge of Indenture.




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




     (1) either




     (a) all such Securities theretofore authenticated and delivered (other than (i)
such Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, and (ii) such Securities for whose
payment



31









 







money has theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 10.3) have been delivered to the Trustee for cancellation; or




     (b) all such Securities not theretofore delivered to the Trustee for
cancellation




     (1) have become due and payable, or




     (2) will become due and payable at their Stated Maturity within one
year, or




     (3) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,




and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;




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




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


Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of
any series, (x) the obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign
under Section 6.10 shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to clause (1) of this Section, the obligations of the Company and the Trustee under
Section 4.2, 6.6 and 10.2 and the last paragraph of Section 10.3 shall survive.



Section 4.2. Application of Trust Money.




     Subject to the provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee.




32









 






ARTICLE FIVE

REMEDIES




Section 5.1. Events of Default.




     “Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):




     (1) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days (whether or
not such payment is prohibited by the provisions of Article Fifteen hereof); or




     (2) default in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity (whether or not such payment is prohibited by the provisions of
Article Fifteen hereof); or




     (3) default in the performance, or breach, of any covenant set forth in Article Ten in
this Indenture (other than a covenant a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 90 days after there has been given, by
registered or certified mail, 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 Outstanding Securities of
that series a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder; or




     (4) default in the performance, or breach, of any covenant in this Indenture (other
than a covenant in Article Ten or any other covenant a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 180 days after there has
been given, by registered or certified mail, 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 Outstanding
Securities of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a “Notice of Default” hereunder; or




     (5) the Company pursuant to or within the meaning of any Bankruptcy Law (a) commences a
voluntary case, (b) consents to the entry of any order for relief against it in an
involuntary case, (c) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (d) makes a general assignment for the benefit of its
creditors; or




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




     (7) default in the deposit of any sinking fund payment when due; or



33









 






     (8) any other Event of Default provided with respect to Securities of that series in
accordance with Section 3.1.



Section 5.2. Acceleration of Maturity; Rescission and Annulment.




     If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of a specified percentage in
aggregate principal amount of the Outstanding Securities of that series may declare the principal
amount (or, if the Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all of the Securities
of that series to be due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Notwithstanding the foregoing, if an Event of
Default specified in clause (5) or (6) of Section 5.1 occurs, the Securities of any series at the
time Outstanding shall be due and payable immediately without further action or notice.



     At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article Five provided, the Holders of a majority in principal amount
of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:




     (1) the Company or, if applicable, one or more of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay:




     (a) all overdue interest on all Securities of that series,




     (b) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,




     (c) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and




     (d) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and




     (2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 5.13.



No such rescission shall affect any subsequent default or impair any right consequent thereon.




Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.




The Company covenants that if:





     (1) default is made in the payment of any installment of interest on any Security when
such interest becomes due and payable and such default continues for a period of 60 days
(whether or not such payment is prohibited by the provisions of Article Fifteen hereof), or



34









 






     (2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof (whether or not such payment is prohibited by the
provisions of Article Fifteen hereof),


the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.




     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or, if applicable, the Guarantors or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or, if applicable, the Guarantors or any other obligor upon
such Securities, wherever situated.



     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.



Section 5.4. Trustee May File Proofs of Claim.




     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or, if applicable, any Guarantor or any other obligor upon the Securities, their property
or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company or, if applicable, the Guarantors for the
payment of overdue principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,




     (i) to file and prove a claim for the whole amount of principal (and premium, if any)
and interest owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and




     (ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, if the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.




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     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, compromise,
arrangement, adjustment or composition affecting the Securities or, if applicable, the Guarantee or
the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a member of a
creditors’ or other similar committee.



Section 5.5. Trustee May Enforce Claims Without Possession of Securities.




     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.



Section 5.6. Application of Money Collected.




     Any money collected by the Trustee pursuant to this Article Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:




     FIRST: To the payment of all amounts due the Trustee under Section 6.7;




     SECOND: Subject to Article Fifteen, to the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such Securities for principal and
any premium and interest, respectively; and




     THIRD: The balance, if any, to the Company.



Section 5.7. Limitation on Suits.




     No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture (including, if applicable, the Guarantee), or
for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:




     (1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that series;




     (2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;




     (3) such Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;



36









 






     (4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such Holders.




Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest.




     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Sections 3.5 and 3.7) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.



Section 5.9. Restoration of Rights and Remedies.




     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.



Section 5.10. Rights and Remedies Cumulative.




     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.



Section 5.11. Delay or Omission Not Waiver.




     To fullest extent permitted by applicable law, no delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.



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Section 5.12. Control by Holders.



     The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Securities of such series; provided, however, that:




     (1) such direction shall not be in conflict with any rule of law or with this
Indenture;




     (2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and




     (3) subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall determine that the
proceeding so directed would involve the Trustee in personal liability.



Section 5.13. Waiver of Past Defaults.



     The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except:




     (1) a continuing default in the payment of the principal of or any premium or interest
on any Security of such series, or




     (2) a default in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each Outstanding Security
of such series affected.


Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.




Section 5.14. Undertaking for Costs.




     All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant, other than
the Trustee, 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 (1) the provisions of this Section 5.14 shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).



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Section 5.15. Waiver of Stay or Extension Laws.




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



ARTICLE SIX

THE TRUSTEE




Section 6.1. Certain Duties and Responsibilities.





     (a) Except during the continuance of an Event of Default,




     (1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and as are provided by the
Trust Indenture Act, and, except for implied covenants or obligations under
the Trust Indenture Act, no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




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




     (b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.




     (c) 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) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;




     (2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, 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 a majority in principal amount of the Outstanding Securities
of any



39









 







series, given pursuant to Section 5.12, 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 such series; and




     (4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.




     (d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.



Section 6.2. Notice of Defaults.




     Within 90 days after the occurrence of any Default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such Default hereunder known
to the Trustee, unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of or any premium or interest on
any Security of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding of such notice is
in the interest of the Holders of Securities of such series; and, provided, further, that in the
case of any Default of the character specified in Section 5.1(3) with respect to Securities of such
series, no such notice to Holders shall be given until at least 90 days after the occurrence
thereof and that in the case of any Default of the character specified in Section 5.1(4) with
respect to Securities of such series, no such notice to Holders shall be given until at least 180
days after the occurrence thereof.



Section 6.3. Certain Rights of Trustee.




Subject to the provisions of Section 6.1:





     (a) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;




     (b) any request or direction of the Company or a Guarantor mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security to the Trustee for authentication and delivery pursuant to
Section 3.3, which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;




     (c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed)



40









 







shall be entitled to receive and may, in the absence of bad faith on its part,
rely upon an Officer’s Certificate;




     (d) the Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;




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




     (f) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;




     (g) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder and shall not be
responsible for the supervision of officers and employees of such agents or
attorneys;




     (h) the Trustee may request that the Company and, if applicable, the Guarantors
deliver an Officer’s 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 Officer’s Certificate may be signed by any person authorized
to sign an Officer’s Certificate, including any person specified as so authorized in
any such certificate previously delivered and not superseded; and




     (i) the Trustee shall be entitled to the rights and protections afforded to the
Trustee pursuant to this Article Six in acting as a Paying Agent or Security
Registrar hereunder.



Section 6.4. Not Responsible for Recitals or Issuance of Securities.




     The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company or, if applicable, the Guarantors,
and the Trustee or any Authenticating Agent assumes no responsibility for their correctness.
Neither the Trustee nor any Authenticating Agent makes any representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Securities or the proceeds thereof.



41









 





Section 6.5. May Hold Securities.




     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or, if applicable, any Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust
Indenture Act and Sections 6.8, 6.9 and 6.13, may otherwise deal with the Company or, if
applicable, the Guarantors with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.



Section 6.6. Money Held in Trust.




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



Section 6.7. Compensation and Reimbursement.




     The Company agrees:




     (1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and




     (3) to indemnify each of the Trustee and its officers, directors, agents and employees
for, and to hold it harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.



     As security for the performance of the obligations of the Company under this Section the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of (and premium, if
any) or interest on particular Securities.



     Without limiting any rights available to the Trustee under applicable law, when the Trustee
incurs expenses or renders services in connection with an Event of Default specified in Section
5.1(5) or Section 5.1(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services of the Trustee are intended to constitute expenses
of administration under any applicable Bankruptcy Law.



     The provisions of this Section 6.7 shall survive the satisfaction and discharge of this
Indenture and the defeasance of the Securities.



42









 





Section 6.8. Disqualification; Conflicting Interests.




     Reference is made to Section 310(b) of the Trust Indenture Act. There shall be excluded from
the operation of Section 310(b)(1) of the Trust Indenture Act this Indenture with respect to the
Securities of more than one series.



Section 6.9. Corporate Trustee Required; Eligibility.




     There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus required by the Trust Indenture Act, subject to supervision or examination by Federal
or State authority. If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then for the purposes of
this Section, 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
Trustee shall not be an obligor upon the Securities or an Affiliate thereof. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article Six.



Section 6.10. Resignation and Removal; Appointment of Successor.





     (a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable requirements
of Section 6.11.




     (b) The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 6.11 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such
series.




     (c) The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the Company.




     (d) If at any time:




     (1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months, or




     (2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or




     (3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its



43









 







property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (ii) subject to
Section 5.14, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
6.11. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.




     (f) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 1.7. Each notice shall
include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.



Section 6.11. 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, the Guarantors (if applicable) 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, if applicable, any Guarantor 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.



44









 






     (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 Guarantors (if
applicable), the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company, any Guarantor (if applicable) or
any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.




     (c) Upon request of any such successor Trustee, the Company and, if applicable,
the Guarantors shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in 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 and the Trust Indenture Act.



Section 6.12. 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 all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article Six, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.



45









 





Section 6.13. Preferential Collection of Claims Against Company.




     Reference is made to Section 311 of the Trust Indenture Act. For purposes of Section 311(b) of
the Trust Indenture Act,




     (1) the term “cash transaction” means any transaction in which full payment for goods
or securities sold is made within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and payable upon demand;




     (2) the term “self-liquidating paper” means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company or, if applicable,
any Guarantor for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee simultaneously
with the creation of the creditor relationship with the Company or, if applicable, such
Guarantor arising from the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.



Section 6.14. Appointment of Authenticating Agent.




     The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $100,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this Section.



     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company and, if applicable, the Guarantors. The Trustee may at any time terminate the
agency



46









 







of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the
Company and, if applicable, the Guarantors. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and, if applicable, the Guarantors and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will serve, as their names
and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.



     Except with respect to an Authenticating Agent appointed at the request of the Company or, if
applicable, the Guarantors, the Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.14, and the Trustee shall be
entitled to be reimbursed by the Company or, if applicable, the Guarantors for such payments,
subject to the provisions of Section 6.7.



     If an appointment with respect to one or more series is made pursuant to this Section 6.14,
the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternate certificate of authentication in the following form:



     This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 
	 	[                                                  ],

As Trustee

 	 
	 	By:  	 	 
	 	 	As Authenticating Agent 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.





     The Company will furnish or cause to be furnished to the Trustee:




     (a) semi-annually, not more than 15 days after each Regular Record Date for a
series of Securities, a list for such series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Securities of such series as of such Regular Record Date, 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 if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished with respect to such series of Securities.



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Section 7.2. Preservation of Information; Communications to Holders.





     (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent list
furnished to the Trustee as provided in Section 7.1 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar. The Trustee
may destroy any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished.




     (b) If three or more Holders (herein referred to as “applicants”) apply in
writing to the Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security for a period of at least six months preceding the
date of such application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this Indenture or
under the Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at its election,
either




     (i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.2(a), or




     (ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.2(a) , and as to the approximate
cost of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.




     If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants, mail to
each Holder whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 7.2(a) a copy of the form of proxy or
other communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written statement
to the effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.




     (c) Every Holder of Securities, by receiving and holding the same, agrees with
the Company, the Guarantors (if applicable) and the Trustee that none of the
Company, the Guarantors (if applicable) nor the Trustee nor any agent of any of them
shall be held accountable by reason of the disclosure of any such information as to
the



48









 







names and addresses of the Holders in accordance with Section 7.2(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant to
a request made under Section 7.2(b).



Section 7.3. Reports by Trustee.




     Any Trustee’s report required pursuant to Section 313(a) of the Trust Indenture Act shall be
dated as of [___], and shall be transmitted within 60 days after [___] of each year (but in
all events at intervals of not more than 12 months), by mail to all Holders, as their names and
addresses appear in the Security Register. A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities
are listed, with the Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.



Section 7.4. Reports by Company.




     The Company shall:




     (a) file with the Trustee, within 15 days after the Company is required to file
the same with the 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 Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules
and regulations;




     (b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company with
the conditions and covenants of this Indenture as may be required from time to time
by such rules and regulations; and




     (c) transmit by mail to all Holders, as their names and addresses appear in 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 clauses (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.



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ARTICLE EIGHT

CONSOLIDATION, AMALGAMATION, MERGER AND SALE




Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.




     The Company shall not consolidate or merge with or into any other Person or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of the properties and assets of
the Company and, if applicable, the Guarantors on a consolidated basis to any other Person unless:




     (1) the Person formed by such consolidation or merger (if other than the Company) or
the Person which acquires by sale, conveyance, transfer or other disposition, or which
leases, such properties and assets shall be a corporation and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every other covenant of
this Indenture on the part of the Company to be performed or observed and shall have
expressly provided for conversion rights in respect of any series of Outstanding Securities
with conversion rights;




     (2) immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of Default, shall
have occurred and be continuing; and




     (3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, amalgamation, merger, conveyance, sale,
transfer or lease and such supplemental indenture, if any, comply with this Article Eight
and that all conditions precedent herein provided for relating to such transaction have been
complied with.



Section 8.2. Successor Substituted.




     Upon any consolidation or merger of the Company with or into any other Person or any sale,
conveyance, transfer, lease or other disposition of all or substantially all of the properties and
assets of the Company and, if applicable, the Guarantors on a consolidated basis in accordance with
Section 8.1, the successor or resulting Person formed by or resulting upon such consolidation or
merger (if other than the Company) or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Company and each of the Guarantors shall be relieved of all obligations and covenants under this
Indenture and the Securities.



ARTICLE NINE

SUPPLEMENTAL INDENTURES




Section 9.1. Supplemental Indentures Without Consent of Holders.




     Without the consent of any Holders, the Company, when authorized by a Board Resolution, the
Guarantors and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:




     (1) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the Securities; or



50









 






     (2) to add a Guarantee and cause any Person to become a Guarantor, and/or to evidence
the succession of another Person to a Guarantor and the assumption by any such successor of
the Guarantee of such Guarantor herein and, to the extent applicable, endorsed upon any
Securities; or




     (3) to add to the covenants of the Company such further covenants, restrictions,
conditions or provisions as the Company shall consider to be appropriate for the benefit of
the Holders of all or any series of Securities (and if such covenants, restrictions,
conditions or provisions 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 and to make the
occurrence, or the occurrence and continuance, of a Default in any such additional
covenants, restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as herein set
forth; provided, that in respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the Securities of such
series to waive such an Event of Default; or




     (4) to add any additional Defaults or Events of Default in respect of all or any series
of Securities; or




     (5) to add to, change or eliminate any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and with or without interest coupons;
or




     (6) to change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or




     (7) to secure the Securities of any series; or




     (8) to establish the form or terms of Securities of any series as permitted by Sections
2.1 and 3.1, including to reopen any series of any Securities as permitted under Section
3.1; or




     (9) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or




     (10) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, to comply with any applicable mandatory
provision of law or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not adversely affect the interests of the Holders
of Securities of any series in any material respect; or



51









 






     (11) to modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to effect the qualification of this Indenture under the Trust Indenture
Act or under any similar federal statute subsequently enacted, and to add to this Indenture
such other provisions as may be expressly required under the Trust Indenture Act.



     The Trustee is hereby authorized to join with the Company and any Guarantor in the execution
of any such supplemental indenture, to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance, transfer, assignment, mortgage, charge
or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



Section 9.2. Supplemental Indentures with Consent of Holders.




     With the consent of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of all series affected by such supplemental indenture, by Act of said
Holders delivered to the Company, the Guarantors and the Trustee, the Company, when authorized by a
Board Resolution, the Guarantor and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,




     (1) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or change any
Place of Payment where, or the coin or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or




     (2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture, or




     (3) modify any of the provisions of this Section 9.2, Section 5.13 or Section 10.6,
except to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby, provided, however, that this clause (3) shall not be deemed to
require the consent of any Holder with respect to changes in the references to “the Trustee”
and concomitant changes in this Section, or the deletion of this proviso, in accordance with
the requirements of Sections 6.11(b) and 9.1(9).



     A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.



52









 





     It shall not be necessary for any Act of Holders under this Section 9.2 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.



Section 9.3. Execution of Supplemental Indentures.




     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.



Section 9.4. Effect of Supplemental Indentures.




     Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.



Section 9.5. Conformity with Trust Indenture Act.




     Every supplemental indenture executed pursuant to this Article Nine shall conform to the
requirements of the Trust Indenture Act as then in effect.



Section 9.6. Reference in Securities to Supplemental Indentures.




     Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article Nine may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.



ARTICLE TEN

COVENANTS




Section 10.1. Payment of Principal, Premium and Interest.




     The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.



Section 10.2. Maintenance of Office or Agency.




     The Company will maintain an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency. If
at any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address



53









 







thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



     Except as otherwise specified with respect to a series of Securities as contemplated by
Section 3.1, the Company hereby initially designates as the Place of Payment for each series of
Securities The City and State of New York, and initially appoints the Trustee at its Corporate
Trust Office as the Company’s office or agency for each such purpose in such city.



Section 10.3. Money for Securities Payments to Be Held in Trust.




     If the Company shall at any time act as its own Paying Agent, with respect to any series of
Securities, it will, on or before each due date of the principal of and any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.



     Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of and any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium or
interest so 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 its action or failure so to act. For purposes of this Section 10.3,
should a due date for principal of and any premium or interest on, or sinking fund payment with
respect to any series of Securities not be on a Business Day, such payment shall be due on the next
Business Day without any interest for the period from the due date until such Business Day.



     The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:




     (1) hold all sums held by it for the payment of the principal of and any premium or
interest on Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;




     (2) give the Trustee notice of any Default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment of principal and any premium or
interest on the Securities of that series; and




     (3) at any time during the continuance of any such Default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



     The Company and, if applicable, the Guarantors may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were
held by the



54









 







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.



     Subject to any applicable escheat or abandoned property laws, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of and any premium or interest on any Security of any series and remaining unclaimed for one year
after such principal and any premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of general circulation in
the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.



Section 10.4. Existence.




     Subject to Article Eight, the Company and, if any Securities of a series to which Article
Fourteen has been made applicable are Outstanding, each Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the Company and, if applicable, each Guarantor
shall not be required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of the business of
the Company or such Guarantor, as the case may be.



Section 10.5. Statement by Officers as to Default.




     Annually, within 150 days after the close of each fiscal year beginning with the first fiscal
year during which one or more series of Securities are Outstanding, the Company and, if any
Securities of a series to which Article Fourteen has been made applicable are Outstanding, each
Guarantor will deliver to the Trustee a brief certificate (which need not include the statements
set forth in Section 1.3) from the principal executive officer, principal financial officer or
principal accounting officer of the Company and, if applicable, such Guarantor as to his or her
knowledge of the Company’s or such Guarantor’s, as the case may be, compliance (without regard to
any period of grace or requirement of notice provided herein) with all conditions and covenants
under the Indenture and, if the Company or such Guarantor, as the case may be, shall be in Default,
specifying all such Defaults and the nature and status thereof of which such officer has knowledge.



Section 10.6. Waiver of Certain Covenants.




     The Company may omit in any particular instance to comply with any term, provision or
condition set forth in this Article Ten (other than the preceding Sections 10.1 through 10.5) with
respect to the Securities of any series if before the time for such compliance the Holders of at
least a majority in aggregate principal amount of the Outstanding Securities of all affected series
(voting as one class) shall, by Act of such Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the




55










 





obligations of the Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.




     A waiver which changes or eliminates any term, provision or condition of this Indenture which
has expressly been included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such series with respect to such term,
provision or condition, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.



Section 10.7. Additional Amounts.




     If the Securities of a series provide for the payment of additional amounts (as provided in
Section 3.1(15)), at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities and at least 10 days prior to each date of payment of principal of, premium,
if any, or interest on the Securities of that series if there has been a change with respect to the
matters set forth in the below-mentioned Officer’s Certificate, the Company shall furnish to the
Trustee and the principal Paying Agent, if other than the Trustee, an Officer’s Certificate
instructing the Trustee and such Paying Agent whether such payment of principal of, premium, if
any, or interest on the Securities of that series shall be made to holders of the Securities of
that series without withholding or deduction for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such withholding or
deduction shall be required, then such Officer’s Certificate shall specify by country the amount,
if any, required to be withheld or deducted on such payments to such holders and shall certify the
fact that additional amounts will be payable and the amounts so payable to each holder, and the
Company shall pay to the Trustee or such Paying Agent the additional amounts required to be paid by
this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred without negligence or bad
faith on their part arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officer’s Certificate furnished pursuant to this Section 10.7.



     Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium, interest or any other amounts on, or in respect of, any Securities of any series,
such mention shall be deemed to include mention of the payment of additional amounts provided by
the terms of such series established hereby or pursuant hereto to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to such terms, and
express mention of the payment of additional amounts (if applicable) in any provision hereof shall
not be construed as excluding the payment of additional amounts in those provisions hereof where
such express mention is not made.



ARTICLE ELEVEN

REDEMPTION OF SECURITIES




Section 11.1. Applicability of Article.




     Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1
for Securities of any series) in accordance with this Article Eleven.



Section 11.2. Election to Redeem; Notice to Trustee.




     The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the Securities of any
series, the Company shall, at least 15 days prior to the last date for the giving of notice of such
redemption (unless a



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shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date
and of the principal amount of Securities of such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to
the expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company that is subject to a
condition specified in the terms of the Securities of the series to be redeemed, the Company shall
furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or
condition.




Section 11.3. Selection by Trustee of Securities to Be Redeemed.




     If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series and of a specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.



     The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Securities of any series to be redeemed consist of Securities having
different dates on which the principal is payable or different rates of interest, or different
methods by which interest may be determined or have any other different tenor or terms, then the
Company may, by written notice to the Trustee, direct that the Securities of such series to be
redeemed shall be selected from among the groups of such Securities having specified tenor or terms
and the Trustee shall thereafter select the particular Securities to be redeemed in the manner set
forth in the preceding paragraph from among the group of such Securities so specified.



     For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.



Section 11.4. Notice of Redemption.




     Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.



     All notices of redemption shall state:




     (1) the Redemption Date,




     (2) the Redemption Price, or if not then ascertainable, the manner of calculation
thereof,




     (3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,



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     (4) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,




     (5) the place or places where such Securities are to be surrendered for payment of the
Redemption Price, and




     (6) that the redemption is for a sinking fund, if such is the case.


Notice of redemption of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company’s request, by the Trustee in the name and at the expense of the
Company.




Section 11.5. Deposit of Redemption Price.




     Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.



Section 11.6. Securities Payable on Redemption Date.




     Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date; provided, however, that
unless otherwise specified with respect to Securities of any series as contemplated in Section 3.1,
installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.



Section 11.7. Securities Redeemed in Part.




     Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of
the principal of the Security so surrendered.



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ARTICLE TWELVE

SINKING FUNDS




Section 12.1. Applicability of Article.




     The provisions of this Article Twelve shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1
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 12.2.
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 12.2. Satisfaction of Sinking Fund Payments with Securities.




     The Company (a) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (b) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to 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 12.3. Redemption of Securities for Sinking Fund.




     Not less than 45 days prior to each sinking fund payment date for any series of Securities
(unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the
Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.2 and stating the basis
for such credit and that such Securities have not been previously so credited, and will also
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 11.3 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 11.4. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.6 and 11.7.



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ARTICLE THIRTEEN

DEFEASANCE




Section 13.1. Applicability of Article.




     The provisions of this Article shall be applicable to each series of Securities except as
otherwise specified as contemplated by Section 3.1 for Securities of such series.



Section 13.2. Legal Defeasance.




     In addition to discharge of the Indenture pursuant to Section 4.1, the Company shall be deemed
to have paid and discharged the entire indebtedness on all the Securities of such a series on the
91st day after the date of the deposit referred to in clause (1) below (and the Trustee, at the
expense of the Company, shall upon a Company Request execute proper instruments acknowledging
same), and the provisions of this Indenture with respect to the Securities of such series shall no
longer be in effect, except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 13.4 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on such Securities
when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (C) the rights, powers, trusts, duties, and immunities of
the Trustee hereunder and (D) this Article Thirteen, if the conditions set forth below are
satisfied (hereinafter, “defeasance”):




     (1) The Company has irrevocably deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.9 who shall agree to comply
with the provisions of this Article Thirteen applicable to it) as trust funds in trust for
the purposes of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series (i) cash in
an amount, or (ii) in the case of any series of Securities the payments on which may only be
made in legal coin or currency of the United States, U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any payment,
cash in an amount, or (iii) 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 and discharge (a) the principal of
and any premium and interest on and each installment of principal of and any premium and
interest on the Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest, as the case may be, or on any Redemption
Date established pursuant to clause (3) below, and (b) any mandatory sinking fund or
analogous payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series;




     (2) The Company has delivered to the Trustee an Opinion of Counsel based on the fact
that (a) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (b) since the date hereof, there has been a change in the applicable
federal income tax law, in either case to the effect that, and such opinion shall confirm
that, the holders of the Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and defeasance and will be
subject to federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit and defeasance had not occurred;



60









 






     (3) If the Securities are to be redeemed prior to Stated Maturity (other than from
mandatory sinking fund payments or analogous payments), notice of such redemption shall have
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee
shall have been made;




     (4) No Default or Event of Default shall have occurred and be continuing on the date of
such deposit;




     (5) Such defeasance shall be effected in compliance with any additional terms,
conditions or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1; and




     (6) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.


For this purpose, such defeasance means that the Company, the Guarantors (if applicable) and any
other obligor upon the Securities of such series shall be deemed to have paid and discharged the
entire debt represented by the Securities of such series, which shall thereafter be deemed to be
“Outstanding” only for the purposes of Section 13.4 and the rights and obligations referred to in
clauses (A) through (D), inclusive, of the first paragraph of this Section 13.2, and to have
satisfied all its other obligations under the Securities of such series and this Indenture insofar
as the Securities of such series are concerned.




     Notwithstanding the foregoing, if an Event of Default specified in Subsection 5.1(5) or
5.1(6), or an event which with lapse of time would become such an Event of Default, shall occur
during the period ending on the 91st day after the date of the deposit referred to in clause (1)
or, if longer, ending on the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit, then, effective upon such occurrence, the
defeasance pursuant to this Section 13.2 and such deposit shall be rescinded and annulled, and the
Company, the Guarantors (if applicable), the Trustee and the Holders of the Securities of such
series shall be restored to their former positions.



Section 13.3. Covenant Defeasance.




     The Company, the Guarantors (if applicable) and any other obligor, if any, shall be released
from their respective obligations under Sections 7.4, 8.1 and 10.4 with respect to the Securities
of any series on and after the date the conditions set forth below are satisfied (hereinafter,
“covenant defeasance”), and the Securities of such series shall thereafter be deemed to be not
“Outstanding” for the purposes of any request, demand, authorization, direction, notice, waiver,
consent or declaration or other action or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed Outstanding for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect to the Securities
of such series, the Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, whether directly or indirectly by
reason of any reference elsewhere herein to such Section or by reason of any reference in such
Section to any other provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 5.1, but, except as specified above,
the remainder of this Indenture and the Securities of such series shall be unaffected thereby. The
following shall be the conditions to application of this Section 13.3;




     (1) The Company has irrevocably deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.9 who shall agree to comply
with the provisions of this Article Thirteen applicable to it) as trust funds in trust for
the purpose



61









 







of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series (i) cash in an
amount, or (ii) in the case of any series of Securities the payments on which may only be
made in legal coin or currency of the United States, U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any payment,
cash in an amount, or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accounts expressed in a written
certification thereof delivered to the Trustee, to pay and discharge (a) the principal of
and any premium and interest on and each installment of principal of and any premium and
interest on the Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest, as the case may be, or on any Redemption
Date established pursuant to clause (2) below, and (b) any mandatory sinking fund payments
on the date on which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;




     (2) If the Securities are to be redeemed prior to Stated Maturity (other than from
mandatory sinking fund payments or analogous payments), notice of such redemption shall have
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee
shall have been made;




     (3) No Event of Default, or an event which with notice or lapse of time or both would
become such an Event of Default, shall have occurred and be continuing on the date of such
deposit;




     (4) Such defeasance shall be effected in compliance with any additional terms,
conditions or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1; and




     (5) The Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.


Notwithstanding the foregoing, if an Event of Default specified in Subsection 5.1(5) or 5.1(6), or
an event which with lapse of time would become such an Event of Default, shall occur during the
period ending on the 181st day after the date of the deposit referred to in clause (1) or, if
longer, ending on the day following the expiration of the longest preference period applicable to
the Company in respect of such deposit, then, effective upon such occurrence, the defeasance
pursuant to this Section 13.3 and such deposit shall be rescinded and annulled, and the Company,
the Guarantors (if applicable), the Trustee and the Holders of the Securities of such series shall
be restored to their former positions.




Section 13.4. Deposited Money and U.S. Government Obligations to be Held in Trust.




     Subject to the provisions of the last paragraph of Section 10.3, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee — collectively, for purposes of this Section 13.4, the “Trustee”) pursuant to Section 13.2
or 13.3 in respect of the Outstanding Securities of such series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but such money need not be segregated from other
funds except to the extent required by law.



62









 





     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.2 or 13.3
or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding Securities of such series.



Section 13.5. Repayment to Company; Qualifying Trustee.




     The Trustee and any Paying Agent promptly shall pay or return to the Company upon Company
Request any money and U.S. Government Obligations held by them at any time that, in the opinion of
a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the same certification given at the time of the
deposit pursuant to Section 13.2 or 13.3, as applicable), are not required for the payment of the
principal of and any interest on the Securities of any series for which money or U.S. Government
Obligations have been deposited pursuant to Section 13.2 or 13.3.



     The provisions of the last paragraph of Section 10.3 shall apply to any money held by the
Trustee or any Paying Agent under this Article Thirteen that remains unclaimed for one year after
the Maturity of any series of Securities for which money or U.S. Government obligations have been
deposited pursuant to Section 13.2 or 13.3.



     Any trustee appointed pursuant to Section 13.2 or 13.3 for the purpose of holding trust funds
deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the
Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the
Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein
to the related defeasance or covenant defeasance have been complied with. In no event shall the
Trustee be liable for any acts or omissions of said trustee.



ARTICLE FOURTEEN

GUARANTEE OF SECURITIES




Section 14.1. Unconditional Guarantee.




     For value received, each of the Guarantors hereby fully, irrevocably, unconditionally and
absolutely guarantees to the Holders of Securities of each series to which this Article Fourteen
has been made applicable as provided in Section 3.1(20) and to the Trustee the due and punctual
payment of the principal of, and premium, if any, and interest on such Securities, and all other
amounts due and payable under this Indenture and such Securities by the Company to the Trustee or
such Holders (including, without limitation, all costs and expenses (including reasonable legal
fees and disbursements) incurred by the Trustee or such Holders in connection with the enforcement
of this Indenture and the Guarantee) (collectively, the “Indenture Obligations”), when and as such
principal, premium, if any, interest, if any, and other amounts shall become due and payable,
whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise,
according to the terms of such Securities and this Indenture. The guarantees by the Guarantors set
forth in this Article Fourteen are referred to herein as the “Guarantee.” Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute
part of the Indenture Obligations and would be owed by the Company to the Trustee or such Holders
under this Indenture and such Securities but for the fact that they are unenforceable, reduced,
limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization
or similar proceeding involving the Company.



     Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever
reason, each Guarantor will be obligated (to the fullest extent permitted by applicable law) to pay
the



63









 




same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever
(whether for taxes, withholding or otherwise). The Guarantee hereunder is intended to be a
general, unsecured, subordinated obligation of each Guarantor and will be subordinated in right of
payment to all Guarantor Senior Debt. Each Guarantor hereby agrees that, to the fullest extent
permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional
and absolute, irrespective of the validity, regularity or enforceability of such Securities, the
Guarantee or this Indenture, the absence of any action to enforce the same, any waiver or consent
by any such Holder with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of such Guarantor. Each Guarantor hereby
agrees that in the event of a default in payment of the principal of, or premium, if any, or
interest on such Securities, or any other amounts payable under this Indenture and such Securities
by the Company to the Trustee or the Holders thereof, whether at the Stated Maturity, upon
redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by
the Trustee on behalf of such Holders or, subject to Section 5.7 hereof, by such Holders, on the
terms and conditions set forth in this Indenture, directly against such Guarantor to enforce the
Guarantee without first proceeding against the Company.




     To the fullest extent permitted by applicable law, the obligations of each Guarantor under
this Article Fourteen shall be as aforesaid full, irrevocable, unconditional and absolute and shall
not be impaired, modified, discharged, released or limited by any occurrence or condition
whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver,
renewal, extension, indulgence or modification of, or any change in, any of the obligations and
liabilities of the Company or any Guarantor contained in any of such Securities or this Indenture,
(ii) any impairment, modification, release or limitation of the liability of the Company, any
Guarantor or any of their estates in bankruptcy, or any remedy for the enforcement thereof,
resulting from the operation of any present or future provision of any applicable Bankruptcy Law,
as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by
the Trustee or any such Holder of any rights or remedies under any of such Securities or this
Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the
assignment or the purported assignment of any property as security for any of such Securities,
including all or any part of the rights of the Company or any Guarantor under this Indenture, (v)
the extension of the time for payment by the Company or any Guarantor of any payments or other sums
or any part thereof owing or payable under any of the terms and provisions of any of such
Securities or this Indenture or of the time for performance by the Company or any Guarantor of any
other obligations under or arising out of any such terms and provisions or the extension or the
renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any
duty, agreement or obligation of the Company or any Guarantor set forth in this Indenture, (vii)
the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or
substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or
readjustment, rehabilitation or relief of, or other similar proceeding affecting, the Company or
any Guarantor or any of their respective assets, or the disaffirmance of any of such Securities,
the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the
Company or any Guarantor from the performance or observance of any agreement, covenant, term or
condition contained in any of such instruments by operation of law, (ix) the unenforceability of
any of such Securities, the Guarantee or this Indenture, (x) any change in the name, business,
capital structure, corporate existence, or ownership of the Company or any Guarantor, or (xi) any
other circumstance which might otherwise constitute a defense available to, or a legal or equitable
discharge of, a surety or any Guarantor.



     To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence,
presentment, demand of payment, notice of acceptance, filing of claims with a court in the event of
the merger, insolvency or bankruptcy of the Company or such Guarantor, and all demands and notices



64









 




whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee
may be transferred and that the benefit of its obligations hereunder shall extend to each holder of
any agreement, instrument or document evidencing the Guarantee without notice to them and (iii)
covenants that its Guarantee will not be discharged except by complete performance of the
Guarantee. To the fullest extent permitted by applicable law, each Guarantor further agrees that
if at any time all or any part of any payment theretofore applied by any Person to any Guarantee
is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the
insolvency, bankruptcy or reorganization of any Guarantor, such Guarantee shall, to the extent that
such payment is or must be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Guarantee shall continue to be effective or be
reinstated, as the case may be, as though such application had not been made.




     Each Guarantor shall be subrogated to all rights of the Holders and the Trustee against the
Company in respect of any amounts paid by such Guarantor pursuant to the provisions of this
Indenture; provided, however, that such Guarantor shall not be entitled to enforce or to receive
any payments arising out of, or based upon, such right of subrogation with respect to any of such
Securities until all of such Securities and the Guarantee shall have been indefeasibly paid in full
or discharged.



     A director, officer, employee or stockholder, as such, of a Guarantor shall not have any
liability for any obligations of the Guarantor under this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation.



     To the fullest extent permitted by applicable law, no failure to exercise and no delay in
exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under
this Article Fourteen and the Guarantee shall operate as a waiver thereof, nor shall any single or
partial exercise of any rights, power, privilege or remedy preclude any other or further exercise
thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and
remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in
law or equity. Nothing contained in this Article Fourteen shall limit the right of the Trustee or
the Holders to take any action to accelerate the maturity of such Securities pursuant to Article
Five or to pursue any rights or remedies hereunder or under applicable law.



Section 14.2. Execution and Delivery of Notation of Guarantee




     To further evidence the Guarantee, each Guarantor hereby agrees that a notation of such
Guarantee may be endorsed on each Security of a series to which this Article Fourteen has been made
applicable authenticated and delivered by the Trustee and executed by either manual or facsimile
signature of an officer of such Guarantor.



     Each Guarantor hereby agrees that its Guarantee of Securities of a series to which this
Article Fourteen has been made applicable shall remain in full force and effect notwithstanding any
failure to endorse on any such Security a notation relating to the Guarantee thereof.



     If an officer of any Guarantor whose signature is on this Indenture or a Security no longer
holds that office at the time the Trustee authenticates such Security or at any time thereafter,
such Guarantor’s Guarantee of such Security shall be valid nevertheless.



     The delivery by the Trustee of any Security of a series to which this Article Fourteen has
been made applicable, after the authentication thereof under this Indenture, shall constitute due
delivery of the Guarantee set forth in this Indenture on behalf of each Guarantor.



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Section 14.3. Reports by Guarantor.




     In addition to the certificates delivered to the Trustee pursuant to Section 10.5, each
Guarantor shall file with the Trustee and the Commission, and transmit to Holders of Outstanding
Securities of each series to which this Article Fourteen has been made applicable, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto; provided that
any such information, documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.



Section 14.4. Subordination of Guarantees.




     The obligations of each Guarantor under the Guarantee pursuant to this Article Fourteen shall
be junior and subordinated to the prior payment in full in cash of all Guarantor Senior Debt
(including interest after the commencement of any proceeding of the type described in Section 14.1
with respect to such Guarantor at the rate specified in the applicable Guarantor Senior Debt,
whether or not such interest would be an allowed claim in such proceeding) of such Guarantor, in
each case on the same basis as the Securities are junior and subordinated to Senior Debt, as set
forth in Article Fifteen mutatis mutandis. For the purposes of the foregoing sentence, the Trustee
and the Holders shall have the right to receive and/or retain payments by a Guarantor only at such
times as they may receive and/or retain payments and distributions in respect of the Securities
pursuant to this Indenture, including Article Fifteen hereof.



ARTICLE FIFTEEN

SUBORDINATION OF SECURITIES




Section 15.1. Securities Subordinated to Senior Debt.





     (1) The Company, for itself, its successors and assigns, covenants and agrees, and
each Holder of Securities, by his acceptance thereof, likewise covenants and agrees, that
the payment of the principal of and premium, if any, and interest on each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior Debt of the Company.




     (2) If (A) the Company shall default in the payment of any principal of, premium, if
any, or interest, if any, on any Senior Debt of the Company when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by declaration of
acceleration or otherwise, or (B) any other default shall occur with respect to Senior Debt
of the Company and the maturity of such Senior Debt has been accelerated in accordance with
its terms, then, upon written notice of such default to the Company and the Trustee by the
holders of Senior Debt of the Company or any trustee therefor, unless and until, in either
case, the default has been cured or waived or has ceased to exist, or, any such acceleration
has been rescinded or such Senior Debt has been paid in full, no direct or indirect payment
(in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made
on account of the principal of, premium, if any, or interest, if any, on any of the
Securities, or in respect of any redemption, retirement, purchase or other acquisition of
any of the Securities other than those made in capital stock of the Company (or cash in lieu
of fractional shares thereof).




     (3) If any default occurs (other than a default described in paragraph (2) of this
Section 15.1) under the Senior Debt of the Company, pursuant to which the maturity thereof
may be accelerated immediately without further notice (except such notice as may be required
to effect such acceleration) or at the expiration of any applicable grace periods (a “Senior
Nonmonetary



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Default”), then, upon the receipt by the Company and the Trustee of written notice
thereof (a “Payment Blockage Notice”) from or on behalf of holders of such Senior Debt of
the Company specifying an election to prohibit such payment and other action by the Company
in accordance with the following provisions of this paragraph (3), the Company may not make
any payment or take any other action that would be prohibited by paragraph (2) of this
Section 15.1 during the period (the “Payment Blockage Period”) commencing on the date of
receipt of such Payment Blockage Notice and ending on the earlier of (A) the date, if any,
on which the holders of such Senior Debt or their representative notifies the Trustee that
such Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior Debt to
which such Senior Nonmonetary Default relates is discharged or (B) the 179th day after the
date of receipt of such Payment Blockage Notice. Notwithstanding the provisions described in
the immediately preceding sentence, the Company may resume payments on the Securities
following such Payment Blockage Period.



Section 15.2. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of
Securities.




     Upon any distribution of assets of the Company upon any dissolution, winding up, liquidation
or reorganization of the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture
upon the Senior Debt of the Company and the holders thereof with respect to the Securities and the
Holders thereof by a lawful plan or reorganization under applicable bankruptcy law),




     (1) the holders of all Senior Debt of the Company shall be entitled to receive payment
in full of the principal thereof, premium, if any, interest, and any interest thereon, due
thereon before the Holders of the Securities are entitled to receive any payment upon the
principal, premium, interest of or on the Securities or interest on overdue amounts thereof;




     (2) any payment or distribution of assets of the Company, a Guarantor (if applicable)
or any other obligor upon the Securities of any kind or character, whether in cash, property
or securities, to which the Holders of the Securities or the Trustee (on behalf of the
Holders) would be entitled except for the provisions of this Article Fifteen shall be paid
by the liquidating trustee or agent or other person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Debt of the Company or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments evidencing any of
such Senior Debt may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the principal of, premium, if any, interest, and any interest thereon,
on the Senior Debt of the Company held or represented by each, to the extent necessary to
make payment in full of all Senior Debt of the Company remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior Debt; and




     (3) in the event that, notwithstanding the foregoing, any payment or distribution of
assets of the Company, a Guarantor (if applicable) or any other obligor upon the Securities
of any kind or character, whether in cash, property or securities, shall be received by the
Trustee (on behalf of the Holders) or the Holders of the Securities before all Senior Debt
of the Company is paid in full, such payment or distribution shall be paid over to the
holders of such Senior Debt or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such Senior Debt
may have been issued, ratably as aforesaid, for application to the payment of all Senior
Debt remaining unpaid until all such Senior



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Debt shall have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.



     Subject to the payment in full of all Senior Debt of the Company, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior Debt to receive payments
or distributions of cash, property or securities of the Company applicable to Senior Debt of the
Company until the principal, premium, interest, and any interest thereon, of or on the Securities
shall be paid in full and no such payments or distributions to the Holders of the Securities of
cash, property or securities otherwise distributable to the Senior Debt of the Company shall, as
between the Company, its creditors other than the holders of Senior Debt of the Company, and the
Holders of the Securities, be deemed to be a payment by the Company to or on account of the
Securities. It is understood that the provisions of this Article Fifteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of Senior Debt of the Company, on the other hand. Nothing contained in this
Article Fifteen or elsewhere in this Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of Senior Debt of the Company, and the
Holders of the Securities, the obligation of the Company, which is unconditional and absolute, to
pay to the Holders of the Securities the principal, premium, interest, and any interest thereon, of
or on the Securities as and when the same shall become due and payable in accordance with their
terms, or to affect the relative rights of the Holders of the Securities and creditors of the
Company other than the holders of Senior Debt of the Company, nor shall anything herein or in the
Securities prevent the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article Fifteen of the holders of such Senior Debt in respect of cash, property or securities
of the Company received upon the exercise of any such remedy. Upon any payment or distribution of
assets of the Company referred to in this Article Fifteen, the Trustee shall be entitled to
conclusively rely upon a certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of Senior Debt of the Company and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed thereon, and all
other facts pertinent thereto or to this Article Fifteen.



     The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt of the Company. The Trustee shall not be liable to any such holder if it shall pay over or
distribute to or on behalf of Holders of Securities or the Company moneys or assets to which any
holder of Senior Debt of the Company shall be entitled by virtue of this Article Fifteen. The
rights and claims of the Trustee under Section 6.7 shall not be subject to the provisions of this
Article Fifteen.



     If the Trustee or any Holder of Securities does not file a proper claim or proof of debt in
the form required in any proceeding referred to above prior to 30 days before the expiration of the
time to file such claim in such proceeding, then the holder of any Senior Debt of the Company is
hereby authorized, and has the right, to file an appropriate claim or claims for or on behalf of
such Holder of Securities.



Section 15.3. Payments on Securities Permitted.




     Nothing contained in this Indenture or in any of the Securities shall (1) affect the
obligation of the Company to make, or prevent the Company from making, at any time except as
provided in Sections 15.1 and 15.2, payments of principal, premium, interest, and any interest
thereon, of or on the Securities or (2) prevent the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal, premium, interest or
other amounts, and any interest thereon, of or on the Securities unless the Trustee shall have
received at its Corporate Trust Office written notice of any event prohibiting the making of such
payment two Business Days (A) prior to the date fixed for such payment, (B) prior to the execution
of an instrument to satisfy and discharge this Indenture based upon the deposit



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of funds under Section 4.1(1)(b), (C) prior to the execution of an instrument acknowledging
the defeasance of such Securities pursuant to Section 13.2 or (D) prior to any deposit pursuant to
clause (1) of Section 13.3 with respect to such Securities.




Section 15.4. Authorization of Holders of Securities to Trustee to Effect Subordination.




     Each Holder of Securities by his acceptance thereof, whether upon original issue or upon
transfer or assignment, authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination as provided in this Article Fifteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.



Section 15.5. Notices to Trustee.




     The Company shall give prompt written notice to a responsible officer of the Trustee located
at the Corporate Trust Office of the Trustee of any fact known to the Company which would prevent
the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article Fifteen or any other provisions of this Indenture, neither the Trustee
nor any Paying Agent (other than the Company) shall be charged with knowledge of the existence of
any Senior Debt of the Company or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent
shall have received (in the case of the Trustee, at its Corporate Trust Office) written notice
thereof from the Company or from the holder of any Senior Debt of the Company or from the trustee
for or representative of any Senior Debt of the Company together with proof satisfactory to the
Trustee of such holding of such Senior Debt or of the authority of such trustee or representative;
provided, however, that if at least two Business Days prior to the date upon which by the terms
hereof any such moneys may become payable for any purpose (including, without limitation, the
payment of the principal, premium, interest, of or on any Security, or any interest thereon) or the
date on which the Trustee shall execute an instrument acknowledging satisfaction and discharge of
this Indenture or the defeasance of Securities pursuant to Section 13.2 or the date on which a
deposit pursuant to clause (1) of Section 13.3 is made, the Trustee shall not have received with
respect to such moneys or the moneys deposited with it as a condition to such satisfaction and
discharge or defeasance the notice provided for in this Section 15.5, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary, which may be received by it on or after such two
Business Days prior to such date. The Trustee shall be entitled to conclusively rely on the
delivery to it of a written notice by a person representing himself to be a holder of Senior Debt
of the Company (or a trustee or representative on behalf of such holder) to establish that such a
notice has been given by a holder of Senior Debt of the Company or a trustee or representative on
behalf of any such holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of Senior Debt of the
Company to participate in any payment or distribution pursuant to this Article Fifteen, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt of the Company held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts pertinent to the rights
of such Person under this Article Fifteen and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right of such Person to
receive such payment.



Section 15.6. Trustee as Holder of Senior Debt.




     The Trustee shall be entitled to all the rights set forth in this Article Fifteen in respect
of any Senior Debt of the Company at any time held by it to the same extent as any other holder of
Senior Debt



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of the Company and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.




Section 15.7. Modification of Terms of Senior Debt.



     Any renewal or extension of the time of payment of any Senior Debt of the Company or the
exercise by the holders of Senior Debt of the Company of any of their rights under any instrument
creating or evidencing such Senior Debt, including without limitation the waiver of default
thereunder, may be made or done all without notice to or assent from Holders of the Securities or
the Trustee.



     No compromise, alteration, amendment, modification, extension, renewal or other change of, or
waiver, consent or other action in respect of, any liability or obligation under or in respect of,
or of any of the terms, covenants or conditions of any indenture or other instrument under which
any Senior Debt of the Company is outstanding or of such Senior Debt, whether or not such release
is in accordance with the provisions of any applicable document, shall in any way alter or affect
any of the provisions of this Article Fifteen or of the Securities relating to the subordination
thereof.



* * *




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



IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the day and year first
above written.




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	WCA WASTE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[TRUSTEE]	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






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