exv4w2






Exhibit 4.2




LMI Aerospace, Inc.,




as the Company,



U.S. Bank National Association,



as Trustee



Subordinated Indenture



Dated as of [                                        ]



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Article 1. DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Other Definitions
	 	 	4	 
	Section 1.3 Incorporation by Reference of Trust Indenture Act
	 	 	5	 
	Section 1.4 Rules of Construction
	 	 	5	 
	 
	 	 	 	 
	Article 2. THE SECURITIES
	 	 	5	 
	 
	 	 	 	 
	Section 2.1 Form and Dating
	 	 	5	 
	Section 2.2 Execution And Authentication
	 	 	5	 
	Section 2.3 Amount Unlimited; Issuable in Series
	 	 	6	 
	Section 2.4 Denomination and Date of Securities; Payments of Interest
	 	 	8	 
	Section 2.5 Registrar and Paying Agent; Agents Generally
	 	 	8	 
	Section 2.6 Paying Agent to Hold Money in Trust
	 	 	9	 
	Section 2.7 Transfer and Exchange
	 	 	9	 
	Section 2.8 Replacement Securities
	 	 	11	 
	Section 2.9 Outstanding Securities
	 	 	11	 
	Section 2.10 Temporary Securities
	 	 	12	 
	Section 2.11 Cancellation
	 	 	12	 
	Section 2.12 CUSIP Numbers
	 	 	12	 
	Section 2.13 Defaulted Interest
	 	 	12	 
	Section 2.14 Series May Include Tranches
	 	 	12	 
	 
	 	 	 	 
	Article 3. REDEMPTION
	 	 	13	 
	 
	 	 	 	 
	Section 3.1 Applicability of Article
	 	 	13	 
	Section 3.2 Notice of Redemption; Partial Redemptions
	 	 	13	 
	Section 3.3 Payment Of Securities Called For Redemption
	 	 	14	 
	Section 3.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption
	 	 	14	 
	Section 3.5 Mandatory and Optional Sinking Funds
	 	 	15	 
	 
	 	 	 	 
	Article 4. COVENANTS
	 	 	16	 
	 
	 	 	 	 
	Section 4.1 Payment of Securities
	 	 	16	 
	Section 4.2 Maintenance of Office or Agency
	 	 	17	 
	Section 4.3 Certificate to Trustee
	 	 	17	 
	Section 4.4 Additional Amounts
	 	 	17	 
	 
	 	 	 	 
	Article 5. SUCCESSOR CORPORATION
	 	 	17	 
	 
	 	 	 	 
	Section 5.1 When Company May Merge, Etc.
	 	 	17	 
	Section 5.2 Successor Substituted
	 	 	18	 
	 
	 	 	 	 
	Article 6. SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	 	 	18	 
	 
	 	 	 	 
	Section 6.1 Securityholders’ Lists
	 	 	18	 
	Section 6.2 Preservation of Information; Communications with Securityholders
	 	 	18	 
	Section 6.3 Reports by the Company
	 	 	18	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 6.4 Reports by the Trustee
	 	 	19	 
	 
	 	 	 	 
	Article 7. DEFAULT AND REMEDIES
	 	 	19	 
	 
	 	 	 	 
	Section 7.1 Events of Default
	 	 	19	 
	Section 7.2 Acceleration
	 	 	19	 
	Section 7.3 Other Remedies
	 	 	20	 
	Section 7.4 Waiver of Past Defaults
	 	 	20	 
	Section 7.5 Control by Majority
	 	 	20	 
	Section 7.6 Limitation on Suits
	 	 	20	 
	Section 7.7 Rights of Holders to Receive Payment
	 	 	21	 
	Section 7.8 Collection Suit by Trustee
	 	 	21	 
	Section 7.9 Trustee May File Proofs of Claim
	 	 	21	 
	Section 7.10 Application of Proceeds
	 	 	21	 
	Section 7.11 Restoration of Rights and Remedies
	 	 	22	 
	Section 7.12 Undertaking for Costs
	 	 	22	 
	Section 7.13 Rights and Remedies Cumulative
	 	 	22	 
	Section 7.14 Delay or Omission not Waiver
	 	 	22	 
	 
	 	 	 	 
	Article 8. TRUSTEE
	 	 	22	 
	 
	 	 	 	 
	Section 8.1 General
	 	 	22	 
	Section 8.2 Certain Rights of Trustee
	 	 	22	 
	Section 8.3 Individual Rights of Trustee
	 	 	24	 
	Section 8.4 Trustee’s Disclaimer
	 	 	24	 
	Section 8.5 Notice of Default
	 	 	24	 
	Section 8.6 Reports by Trustee to Holders
	 	 	24	 
	Section 8.7 Compensation and Indemnity
	 	 	24	 
	Section 8.8 Disqualification; Conflicting Interests
	 	 	24	 
	Section 8.9 Corporate Trustee Required; Eligibility
	 	 	25	 
	Section 8.10 Replacement of Trustee
	 	 	25	 
	Section 8.11 Acceptance of Appointment by Successor
	 	 	25	 
	Section 8.12 Successor Trustee By Merger, Etc.
	 	 	26	 
	Section 8.13 Eligibility
	 	 	26	 
	Section 8.14 Money Held in Trust
	 	 	26	 
	Section 8.15 Preferential Collection of Claims Against the Company
	 	 	26	 
	 
	 	 	 	 
	Article 9. SECURITYHOLDERS
	 	 	26	 
	 
	 	 	 	 
	Section 9.1 Evidence of Action by Securityholders
	 	 	26	 
	Section 9.2 Proof of Execution by Securityholders
	 	 	27	 
	Section 9.3 Certain Securities Owned by Company Disregarded
	 	 	27	 
	 
	 	 	 	 
	Article 10. SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
	 	 	27	 
	 
	 	 	 	 
	Section 10.1 Satisfaction and Discharge of Indenture
	 	 	27	 
	Section 10.2 Application by Trustee of Funds Deposited for Payment of Securities
	 	 	28	 
	Section 10.3 Repayment of Moneys Held by Paying Agent
	 	 	28	 
	Section 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
	 	 	28	 
	Section 10.5 Defeasance and Discharge of Indenture
	 	 	28	 
	Section 10.6 Defeasance of Certain Obligations
	 	 	29	 
	Section 10.7 Reinstatement
	 	 	30	 
	Section 10.8 Indemnity
	 	 	30	 
	Section 10.9 Excess Funds
	 	 	30	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 10.10 Qualifying Trustee
	 	 	30	 
	 
	 	 	 	 
	Article 11. AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	30	 
	 
	 	 	 	 
	Section 11.1 Without Consent of Holders
	 	 	30	 
	Section 11.2 With Consent of Holders
	 	 	31	 
	Section 11.3 Revocation and Effect of Consent
	 	 	32	 
	Section 11.4 Notation on or Exchange of Securities
	 	 	32	 
	Section 11.5 Trustee to Sign Amendments, Etc.
	 	 	32	 
	Section 11.6 Conformity with Trust Indenture Act
	 	 	32	 
	Section 11.7 Amendments to Subordination Provisions
	 	 	32	 
	 
	 	 	 	 
	Article 12. SUBORDINATION
	 	 	32	 
	 
	 	 	 	 
	Section 12.1 Agreement to Subordinate
	 	 	32	 
	Section 12.2 Certain Definitions
	 	 	33	 
	Section 12.3 Liquidation; Dissolution; Bankruptcy
	 	 	33	 
	Section 12.4 Default on Senior Debt
	 	 	33	 
	Section 12.5 Acceleration of Securities
	 	 	33	 
	Section 12.6 When Distribution Must be Paid Over
	 	 	34	 
	Section 12.7 Notice by Company
	 	 	34	 
	Section 12.8 Subrogation
	 	 	34	 
	Section 12.9 Relative Rights
	 	 	34	 
	Section 12.10 Subordination May Not Be Impaired By Company
	 	 	34	 
	Section 12.11 Distribution or Notice to Representative
	 	 	34	 
	Section 12.12 Rights of Trustee and Paying Agent
	 	 	35	 
	Section 12.13 Authorization to Effect Subordination
	 	 	35	 
	 
	 	 	 	 
	Article 13. MISCELLANEOUS
	 	 	35	 
	 
	 	 	 	 
	Section 13.1 Trust Indenture Act of 1939
	 	 	35	 
	Section 13.2 Notices
	 	 	35	 
	Section 13.3 Certificate and Opinion as to Conditions Precedent
	 	 	36	 
	Section 13.4 Statements Required in Certificate or Opinion
	 	 	36	 
	Section 13.5 Evidence of Ownership
	 	 	36	 
	Section 13.6 Rules by Trustee, Paying Agent or Registrar
	 	 	37	 
	Section 13.7 Payment Date Other Than a Business Day
	 	 	37	 
	Section 13.8 Governing Law
	 	 	37	 
	Section 13.9 No Adverse Interpretation of Other Agreements
	 	 	37	 
	Section 13.10 Successors
	 	 	37	 
	Section 13.11 Duplicate Originals
	 	 	37	 
	Section 13.12 Separability
	 	 	37	 
	Section 13.13 Table of Contents, Headings, Etc.
	 	 	37	 
	Section 13.14 Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability
	 	 	37	 
	Section 13.15 Judgment Currency
	 	 	38	 
	Section 13.16 Waiver of Jury Trial
	 	 	38	 
	Section 13.17 Force Majeure
	 	 	38	 






iv









 






Cross Reference Table*




	 	 	 	 	 	 	 
	Section of Trust Indenture Act of 1939, as amended	 	 	 	Section of Indenture
	310(a)

	 	 	 	 	7.9	 
	310(b)

	 	 	 	 	7.8	 
	 

	 	 	 	 	7.10	 
	310(c)

	 	 	 	Inapplicable

	311(a)

	 	 	 	 	7.15	 
	311(b)

	 	 	 	 	7.15	 
	311(c)

	 	 	 	Inapplicable

	312(a)

	 	 	 	 	6.1	 
	 

	 	 	 	 	6.2	(a)
	312(b)

	 	 	 	 	6.2	(b)
	312(c)

	 	 	 	 	6.2	(b)
	313(a)

	 	 	 	 	6.4	(a)
	313(b)

	 	 	 	 	6.4	(b)
	313(c)

	 	 	 	 	6.4	(a)
	 

	 	 	 	 	6.4	(b)
	313(d)

	 	 	 	 	6.4	(b)
	314(a)

	 	 	 	 	6.3	 
	314(b)

	 	 	 	Inapplicable

	314(c)(1)

	 	 	 	 	13.3	 
	314(c)(2)

	 	 	 	 	13.4	 
	314(d)

	 	 	 	Inapplicable

	314(e)

	 	 	 	 	7.12	 
	314(f)

	 	 	 	Inapplicable

	315(a)

	 	 	 	 	8.1	 
	315(b)

	 	 	 	 	6.4	 
	315(c)

	 	 	 	 	8.1	 
	315(d)

	 	 	 	 	8.1	 
	315(e)

	 	 	 	 	7.12	 
	316(a)

	 	 	 	 	7.5, 9.3	 
	316(b)

	 	 	 	 	7.6	 
	316(c)

	 	 	 	 	9.1	 
	317(a)

	 	 	 	 	7.8	 
	317(b)

	 	 	 	 	2.5	 
	318(a)

	 	 	 	 	13.1	 








 




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





v









 





     SUBORDINATED INDENTURE, dated as of [                                        ], between LMI AEROSPACE, INC., a Missouri
corporation, as the Company, and U.S. BANK NATIONAL ASSOCIATION, as Trustee.



RECITALS OF THE COMPANY



     WHEREAS, the Company has duly authorized the issue from time to time of its subordinated
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly authorized the execution
and delivery of this Indenture;



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done.



     NOW, THEREFORE:



     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities or of any and all series thereof and of
the coupons, if any, appertaining thereto as follows:



ARTICLE 1.

DEFINITIONS AND INCORPORATION BY REFERENCE



     Section 1.1 Definitions.



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



     “Agent” means any Registrar, Paying Agent, transfer agent or Authenticating Agent.



     “Board Resolution” means one or more resolutions of the board of directors of the Company or
any authorized committee thereof, certified by the secretary or an assistant secretary to have been
duly adopted and to be in full force and effect on the date of certification, and delivered to the
Trustee.



     “Business Day” means, with respect to any series of Securities, any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York or in the city where the office
or agency for payment on the Securities is maintained pursuant to Section 4.2.



     “Closing Date” means the date on which any series of Securities was originally issued under
this Indenture



     “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.



     “Company” means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to Article 5 of this Indenture and thereafter means the successor.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be administered, which office is, at the date of this
Indenture, located at 40 Pearl Street NW, Suite 838, Grand Rapids, Michigan 49503.



     “Default” means any event that is, or after notice or passage of time or both would be, an
Event of Default.



     “Depositary” means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as Depositary by the
Company pursuant to Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter



1









 





     “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, “Depositary” as used with respect to the Securities of
any such series shall mean the Depositary with respect to the Registered Global Securities of that
series.



     “Dollars” means or “$” means a dollar or other equivalent unit of legal tender for payment of
public or private debts in the United States of America.



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



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession which are in effect on the date of this Indenture.



     “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (1)
to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services (unless such purchase arrangements are
on arm’s-length terms and are entered into in the ordinary course of business), to take-or-pay, or
to maintain financial statement conditions or otherwise) or (2) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part); provided that the term
“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of
business. The term “Guarantee” used as a verb has a corresponding meaning.



     “Holder” or “Securityholder” means the registered holder of any Security with respect to
Registered Securities and the bearer of any Unregistered Security or any coupon appertaining
thereto, as the case may be.



     “Indebtedness” means with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds, securities, debentures or
similar instruments or letters of credit (or reimbursement agreements in respect thereof) or
banker’s acceptances, except any such balance that constitutes an accrued expense or trade payable,
if and to the extent any of the foregoing indebtedness (other than letters of credit) would appear
as a liability upon a balance sheet of such Person prepared in accordance with GAAP, as well as all
indebtedness of others secured by a lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise included, the guarantee by
such Person of any indebtedness of any other Person. The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, upon the occurrence of the contingency giving rise to
the obligation, of any contingent obligations at such date; provided that the amount outstanding at
any time of any Indebtedness issued with original issue discount is the full amount of such
Indebtedness less the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP. The amount of any Indebtedness
outstanding as of any date shall be (i) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount and (ii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other Indebtedness.



     “Indenture” means this Indenture as originally executed and delivered or as it may be amended
or supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to Sections 2.1 and 2.3.



     “Investment Company Act” means the Investment Company Act of 1940, as amended.



     “Obligations” means any principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable (1) under this Indenture or the applicable
Securities, or (2) under Senior Debt.



     “Officer” means the president or chief executive officer, any executive vice president, any
senior vice president, any vice president (whether or not designated by a number or a word or words
added behind or after the title “vice president”), the chief financial officer, the treasurer or
any assistant treasurer, or the secretary or any assistant secretary.



2









 





     “Officers’ Certificate” means a certificate signed in the name of the Company (i) by the
president or chief executive officer or any vice president (whether or not designated by a number
or a word or words added behind or after the title “vice president”) of the Company, and (ii) by
the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary of the Company, and delivered to the Trustee. Each such certificate shall
comply with Section 314 of the Trust Indenture Act, if applicable, and include (except as otherwise
expressly provided in this Indenture) the statements provided in Section 13.4, if applicable.



     “Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee
of or counsel to the Company, satisfactory to the Trustee. Each such opinion shall comply with
Section 314 of the Trust Indenture Act, if applicable, and include the statements provided in
Section 13.4, if and to the extent required thereby.



     “original issue date” of any Security (or portion thereof) means the earlier of (a) the date
of authentication of such Security or (b) the date of any Security (or portion thereof) for which
such Security was issued (directly or indirectly) on registration of transfer, exchange or
substitution.



     “Original Issue Discount Security” means any Security that 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 7.2.



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



     “Principal” of a Security means the principal amount of, and, unless the context indicates
otherwise, includes any premium payable on, the Security.



     “Registered Global Security” means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.2, and
bearing the legend prescribed in Section 2.2.



     “Registered Security” means any Security registered on the Security Register (as defined in
Section 2.5).



     “Responsible Officer” when used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office, having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with the particular subject.



     “Securities” means any of the securities, as defined in the first paragraph of the recitals
hereof, that are authenticated and delivered under this Indenture and, unless the context indicates
otherwise, shall include any coupon appertaining thereto.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Senior Debt” means, with respect to the Company, (i) the principal, premium, if any, and
interest in respect of (A) Indebtedness of the Company for money borrowed, and (B) Indebtedness
evidenced by securities, debentures, bonds or other similar instruments issued by the Company, (ii)
all capital lease obligations of the Company, (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale obligations of the Company
and all obligations of the Company under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business), (iv) all obligations of the Company
for the reimbursement on any letter of credit, banker’s acceptance, security purchase facility or
similar credit transaction, (v) all obligations of the type referred to in clauses (i) through (iv)
above of other Persons for the payment of which the Company is responsible or liable as obligor,
guarantor or otherwise; and (vi) all obligations of the type referred to in clauses (i) through (v)
above of other Persons secured by any lien on any property or asset of the Company (whether or not
such obligation is assumed by the Company), except in each case for (1) any such Indebtedness that
is by its terms subordinated to or pari passu with the Securities, and (2) any Indebtedness in
respect of debt securities, issued to any trust or a trustee of such trust, partnership or other
entity affiliated with the Company that is a financing entity for the Company (a “financing
entity”) in connection with the issuance by such financing entity of securities. Such Senior Debt
shall continue to be Senior Debt and be entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of such Senior Debt.



     “Senior Indenture” means the Senior Indenture dated September 8, 2010 between the Company and
U.S. Bank National Association, as trustee, as amended, modified or supplemented from time to time.



3









 





     “Significant Subsidiary” means a Subsidiary, including its Subsidiaries, that meets any of the
conditions set forth under Rule 405 under the Securities Act.



     “Subsidiary” means with respect to any specified Person, any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting power for the
election of directors of such corporation (irrespective of whether or not at the time stock of any
other class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is, or other entity of which at least a majority of the common equity
interests are, at the time directly or indirectly owned by that Person, or by one or more other
Subsidiaries of that Person, or by that Person and one or more other Subsidiaries of that Person.



     “Trustee” means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of Article 8 and thereafter 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 (15 U.S. Code §§
77aaa-77bbbb), as it may be amended from time to time.



     “Unregistered Security” means any Security other than a Registered Security.



     “U.S. Government Obligations” means securities that are (1) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (2) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the full and timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity
of the notes, and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific payment of interest on
or principal of any such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.



     “Yield to Maturity” means, as the context may require, the yield to maturity (i) on a series
of Securities or (ii) if the Securities of a series are issuable from time to time, on a Security
of such series, calculated at the time of issuance of such series in the case of clause (i) or at
the time of issuance of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such Security, and calculated
in accordance with the constant interest method or such other accepted financial practice as is
specified in the terms of such Security.



     Section 1.2 Other Definitions. Each of the following terms is defined in the section
set forth opposite such term:



	 	 	 	 	 	 	 
	Term	 	 	 	Section
	Authenticating Agent

	 	 	 	 	2.2	 
	cash transaction

	 	 	 	 	8.3	 
	Event of Default

	 	 	 	 	7.1	 
	Judgment Currency

	 	 	 	 	13.15	 
	mandatory sinking fund payment

	 	 	 	 	3.5	 
	optional sinking fund payment

	 	 	 	 	3.5	 
	Paying Agent

	 	 	 	 	2.5	 
	Payment Blockage Notice

	 	 	 	 	12.4	(b)(2)
	record date

	 	 	 	 	2.4	 
	Registrar

	 	 	 	 	2.5	 
	Required Currency

	 	 	 	 	13.15	 
	Security Register

	 	 	 	 	2.5	 
	self-liquidating paper

	 	 	 	 	8.3	 
	sinking fund payment date

	 	 	 	 	3.5	 
	Surviving Person

	 	 	 	 	5.1	(a)
	tranche

	 	 	 	 	2.14	 






4









 






     Section 1.3 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 terms used in this Indenture that are defined by the
Trust Indenture Act have the following meanings:



     “indenture securities” means the Securities;



     “indenture security holder” means a Holder or a Securityholder;



     “indenture to be qualified” means this Indenture;



     “indenture trustee” or “institutional trustee” means the Trustee; and



     “obligor” on the indenture securities means the Company or any other obligor on the
Securities.



     All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
reference in the Trust Indenture Act to another statute or defined by a rule of the Commission and
not otherwise defined herein have the meanings assigned to them therein.



     Section 1.4 Rules of Construction. Unless the context otherwise requires:



     (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;



     (b) words in the singular include the plural, and words in the plural include the singular;



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



     (d) all references to Sections or Articles refer to Sections or Articles of this Indenture
unless otherwise indicated; and



     (e) use of masculine, feminine or neuter pronouns should not be deemed a limitation, and the
use of any such pronouns should be construed to include, where appropriate, the other pronouns.



ARTICLE 2.

THE SECURITIES



     Section 2.1 Form and Dating. The Securities of each series shall be substantially in
such form or forms (not inconsistent with this Indenture) as shall be established by or pursuant to
one or more Board Resolutions 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 imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required
to comply with any law, or with any rules of any securities exchange or usage, all as may be
determined by the officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have coupons attached.



     Section 2.2 Execution And Authentication. One Officer of the Company shall execute the
Securities and one Officer of the Company shall execute the coupons appertaining thereto for the
Company by facsimile or manual signature in the name and on behalf of the Company. If an Officer of
the Company whose signature is on a Security or coupon appertaining thereto no longer holds that
office at the time the Security is authenticated, the Security and such coupon shall nevertheless
be valid.



     The Trustee, at the expense of the Company, may appoint an authenticating agent (the
“Authenticating Agent”) to authenticate Securities. The Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such Authenticating Agent.



     A Security and the coupons appertaining thereto shall not be valid until the Trustee or
Authenticating Agent signs, manually or by facsimile, the certificate of authentication on the
Security or on the Security to which such coupon appertains. The signature shall be conclusive
evidence that the Security or the Security to which the coupon appertains has been authenticated
under this Indenture.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series having attached thereto appropriate coupons, if any,
executed by the Company to the Trustee



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for authentication together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order
of the Company. In authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the authentication of any Securities of such series, and (subject to Article 8)
shall be fully protected in relying upon, unless and until such documents have been superseded or
revoked:




     (a) any Board Resolution and/or executed supplemental indenture referred to in Section 2.1 and
Section 2.3 by or pursuant to which the forms and terms of the Securities of that series were
established;



     (b) an Officers’ Certificate setting forth the form or forms and terms of the Securities,
stating that the form or forms and terms of the Securities of such series have been established in
compliance with this Indenture; and



     (c) an Opinion of Counsel substantially to the effect that the form or forms and terms of the
Securities of such series have been established in compliance with this Indenture and that the
supplemental indenture, to the extent applicable, and Securities have been duly authorized and, if
executed and authenticated in accordance with the provisions of the Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting creditors’ rights
generally, general principles of equity, and covering such other matters as shall be specified
therein and as shall be reasonably requested by the Trustee.



     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.



     If the Company shall establish pursuant to Section 2.3 that the Securities of a series or a
portion thereof are to be issued in the form of one or more Registered Global Securities, then the
Company shall execute and the Trustee shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate
Principal amount of all of the Securities of such series issued in such form and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or its custodian or pursuant to such Depositary’s instructions and (iv) shall (unless
provided otherwise in the form of such Security) bear a legend substantially to the following
effect: “Unless and until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.”



     Section 2.3 Amount Unlimited; Issuable in Series. The aggregate Principal amount of
Securities that may be authenticated and delivered under this Indenture is unlimited.



     The Securities may be issued in one or more series and each such series shall rank equally and
pari passu with all other unsecured and unsubordinated debt of the Company.



     There shall be established in or pursuant to Board Resolution or one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any series, subject to the last
sentence of this Section 2.3,



     (a) the designation of the Securities of the series, which shall distinguish the Securities of
the series from the Securities of all other series;



     (b) any limit upon the aggregate Principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture and any limitation on the ability of the Company
to increase such aggregate Principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities of the series pursuant
hereto);



     (c) the date or dates on which the Principal of the Securities of the series is payable (which
date or dates may be fixed or extendible);



     (d) the rate or rates (which may be fixed or variable) per annum at which the Securities of
the series shall bear interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and



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(in the case of Registered Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such rate or rates or date or dates
shall be determined;




     (e) if other than as provided in Section 4.2, the place or places where the Principal of,
premium, if any, and any interest on Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this Indenture may be served and notice to Holders
may be published;



     (f) the right, if any, of the Company to redeem Securities of the series, in whole or in part,
at its option and the period or periods within which, the price or prices at which and any terms
and conditions upon which Securities of the series may be so redeemed;



     (g) the obligation, if any, of the Company to redeem, purchase or repay Securities of the
series pursuant to any mandatory redemption or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any of the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;



     (h) if other than denominations of $1,000 and integral multiples of $1,000, the denominations
in which Securities of the series shall be issuable;



     (i) 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;



     (j) if other than the coin or currency in which the Securities of the series are denominated,
the coin or currency in which payment of the Principal of, premium, if any, or interest on the
Securities of the series shall be payable or if the amount of payments of principal of, premium, if
any, and/or interest on the Securities of the series may be determined with reference to an index
based on a coin or currency other than that in which the Securities of the series are denominated,
the manner in which such amounts shall be determined;



     (k) if other than the currency of the United States of America, the currency or currencies,
including composite currencies, in which payment of the Principal of, premium, if any, and interest
on the Securities of the series shall be payable, and the manner in which any such currencies shall
be valued against other currencies in which any other Securities shall be payable;



     (l) whether the Securities of the series or any portion thereof will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons) (and if so, whether such Securities will be
issued in temporary or permanent global form), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided herein, the terms upon which Unregistered
Securities of any series may be exchanged for Registered Securities of such series and vice versa;



     (m) whether the Securities of the series may be exchangeable for and/or convertible into the
common stock of the Company or any other security;



     (n) 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 such Securities rather than pay such additional amounts;



     (o) 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;



     (p) any trustees, depositaries, authenticating or paying agents, transfer agents or the
registrar or any other agents with respect to the Securities of the series;



     (q) provisions, if any, for the defeasance of the Securities of the series (including
provisions permitting defeasance of less than all Securities of the series), which provisions may
be in addition to, in substitution for, or in modification of (or any combination of the foregoing)
the provisions of Article 10;



     (r) if the Securities of the series are issuable in whole or in part as one or more Registered
Global Securities or Unregistered Securities in global form, the identity of the Depositary or
common Depositary for such Registered Global Security or Securities or Unregistered Securities in
global form;



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     (s) any other Events of Default or covenants with respect to the Securities of the series; and



     (t) any other terms of the Securities of the series (which terms shall not be inconsistent
with the provisions of this Indenture), and any requirement to have Subsidiaries Guarantee the
Securities.



     All Securities of any one series and coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to date and denomination
and except as may otherwise be provided by or pursuant to the Board Resolution referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any such indenture
supplemental hereto and any forms and terms of Securities to be issued from time to time may be
completed and established from time to time prior to the issuance thereof by procedures described
in such Board Resolution or supplemental indenture.



     Unless otherwise expressly provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized with respect to such
series as increased.



     Section 2.4 Denomination and Date of Securities; Payments of Interest. The Securities
of each series shall be issuable as Registered Securities or Unregistered Securities in
denominations established as contemplated by Section 2.3 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and integral multiples of $1,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or
in accordance with such plan as the Officers of the Company executing the same may determine, as
evidenced by their execution thereof.



     Unless otherwise specified with respect to a series of Securities, each Security shall be
dated the date of its authentication. The Securities of each series shall bear interest, if any,
from the date, and such interest and shall be payable on the dates, established as contemplated by
Section 2.3.



     The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to the extent the Company shall
default in the payment of the interest due on such interest payment date for such series, in which
case the provisions of Section 2.13 shall apply. The term “record date” as used with respect to any
interest payment date (except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the Registered Securities of such
series established as contemplated by Section 2.3, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such record date is a
Business Day.



     Section 2.5 Registrar and Paying Agent; Agents Generally. The Company shall maintain
an office or agency where Securities may be presented for registration, registration of transfer or
for exchange (the “Registrar”) and an office or agency where Securities may be presented for
payment (the “Paying Agent”), which shall be in the United States of America. The Company shall
cause the Registrar to keep a register of the Registered Securities and of their registration,
transfer and exchange (the “Security Register”). The Company may have one or more additional Paying
Agents or transfer agents with respect to any series.



     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture and the Trust
Indenture Act that relate to such Agent. The Company shall give prompt written notice to the
Trustee of the name and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The
Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no
such removal shall become effective until (i) the acceptance of an appointment by a successor Agent
to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i)
of this proviso. The Company or any Affiliate of the Company may act as Paying Agent or Registrar;
provided that neither the Company nor an Affiliate of the Company shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of this Indenture under Article
10.



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     The Company initially appoints the Trustee as Registrar, Paying Agent and Authenticating
Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available to the
Trustee ten days prior to each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in the Security Register.



     Section 2.6 Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. New York
City time on each due date or, in the case of Unregistered Securities, 10:00 a.m. New York City
time on the Business Day prior to the due date, of any Principal or interest on any Securities, the
Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay
such Principal or interest. The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent shall hold in trust for the benefit of the Holders of such
Securities or the Trustee all money held by the Paying Agent for the payment of Principal of,
premium, if any, and interest on such Securities and shall promptly notify the Trustee of any
default by the Company in making any such payment. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon written request to a
Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the
money so paid over to the Trustee. If the Company or any affiliate of the Company acts as Paying
Agent, it will, on or before each due date of any Principal of, premium, if any, or interest on any
Securities, segregate and hold in a separate trust fund for the benefit of the Holders thereof a
sum of money sufficient to pay such Principal or interest so becoming due until such sum of money
shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of its action or failure to act as required by this Section.



     Section 2.7 Transfer and Exchange. Unregistered Securities (except for any temporary
global Unregistered Securities) and coupons (except for coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.



     At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series and tenor having authorized denominations and an equal
aggregate Principal amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance with Section 2.5 and
upon payment, if the Company shall so require, of the charges hereinafter provided. If the
Securities of any series are issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.3, at the option of the Holder thereof, Unregistered Securities
of any series may be exchanged for Registered Securities of such series and tenor having authorized
denominations and an equal aggregate Principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.2, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided. At the option of the
Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and original
issue date are issued in more than one authorized denomination, except as otherwise established
pursuant to Section 2.3, such Unregistered Securities may be exchanged for Unregistered Securities
of such series and tenor having authorized denominations and an equal aggregate Principal amount,
upon surrender of such Unregistered Securities to be exchanged at the agency of the Company that
shall be maintained for such purpose in accordance with Section 4.2, with, in the case of
Unregistered Securities that have coupons attached, all unmatured coupons and all matured coupons
in default thereto appertaining, and upon payment, if the Company shall so require, of the charges
hereinafter provided. Registered Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.



     Upon surrender for registration of transfer of any Registered Security of a series at the
agency of the Company that shall be maintained for that purpose in accordance with Section 2.5 and
upon payment, if the Company shall so require, of the charges hereinafter provided, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of like tenor and aggregate Principal amount.



9









 





     All Registered Securities presented for registration of transfer, exchange, redemption or
payment shall be duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or his
attorney duly authorized in writing.



     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 exchange or registration of transfer of
Securities. No service charge shall be made for any such transaction.



     Notwithstanding any other provision of this Section 2.7, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered 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.



     If at any time the Depositary for any Registered Global Securities of any series notifies the
Company that it is unwilling or unable to continue as Depositary for such Registered Global
Securities or if at any time the Depositary for such Registered Global Securities shall no longer
be eligible under applicable law, the Company shall appoint a successor Depositary eligible under
applicable law with respect to such Registered Global Securities. If a successor Depositary
eligible under applicable law for such Registered Global Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of the Company’s order for the authentication
and delivery of definitive Registered Securities of such series and tenor, will authenticate and
deliver Registered Securities of such series and tenor, in any authorized denominations, in an
aggregate Principal amount equal to the Principal amount of such Registered Global Securities, in
exchange for such Registered Global Securities.



     The Company may at any time and in its sole discretion and subject to the procedures of the
Depositary determine that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event the Company will execute, and the Trustee, upon receipt of
the Company’s order for the authentication and delivery of definitive Registered Securities of such
series and tenor, will authenticate and deliver, Registered Securities of such series and tenor in
any authorized denominations, in an aggregate Principal amount equal to the Principal amount of
such Registered Global Securities, in exchange for such Registered Global Securities.



     Any time the Registered Securities of any series are not in the form of Registered Global
Securities pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with
a reasonable supply of certificated Registered Securities without the legend required by Section
2.2 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated
and delivered pursuant to the terms of this Indenture.



     If established by the Company pursuant to Section 2.3 with respect to any Registered Global
Security, the Depositary for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Registered 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 shall execute, and the Trustee shall authenticate and deliver, without
service charge to the Depositary,



     (a) to the Person specified by such Depositary new Registered Securities 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 Registered Global
Security; and



     (b) to such Depositary a new Registered Global Security in a denomination equal to the
difference, if any, between the Principal amount of the surrendered Registered Global Security and
the aggregate Principal amount of Registered Securities authenticated and delivered pursuant to
clause (a) above.



     Registered Securities issued in exchange for a Registered Global Security pursuant to this
Section 2.7 shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons
in whose names such Securities are so registered.



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



10









 





     Notwithstanding anything herein or in the forms or terms of any Securities to the contrary,
none of the Company, the Trustee or any agent of the Company or the Trustee shall be required to
exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Company (such as, for example, the inability of the
Company to deduct from its income, as computed for Federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United States Federal income tax
laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an
Opinion of Counsel in determining such result.



     The Registrar shall not be required (i) to issue, authenticate, register the transfer of or
exchange Securities of any series for a period of 15 days before a selection of such Securities to
be redeemed or (ii) to register the transfer of or exchange any Security selected for redemption in
whole or in part.



     Section 2.8 Replacement Securities. If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute, and
the Trustee shall authenticate and deliver, in exchange for such mutilated Security or in exchange
for the Security to which a mutilated coupon appertains, a new Security of the same series and of
like tenor and Principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to the
Security to which such mutilated coupon appertains.



     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as
may be required by them to save each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute, and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and of like tenor and Principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.



     In case any such mutilated, destroyed, lost or stolen Security or coupon 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 or coupon (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and any agent of any of
them harmless, and in the case of destruction, loss or theft, evidence satisfactory to the Company
and the Trustee and any agent of them of the destruction, loss or theft of such Security and the
ownership thereof; provided, however, that the Principal of, premium, if any, and any interest on
Unregistered Securities shall, except as otherwise provided in Section 4.2, be payable only at an
office or agency located outside the United States of America.



     Upon the issuance of any new Security under this Section, the Company may require 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, with its coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their coupons, if any, duly
issued hereunder.



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



     Section 2.9 Outstanding Securities. Securities outstanding at any time are all
Securities that have been authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those described in this Section as not outstanding and those that
have been defeased pursuant to Section 10.5.



     If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a holder in due course.



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     If the Paying Agent (other than the Company or an affiliate of the Company) holds on the
maturity date or any redemption date or date for repurchase of the Securities money sufficient to
pay Securities payable or to be redeemed or repurchased on that date, then on and after that date
such Securities cease to be outstanding and interest on them shall cease to accrue.



     A Security does not cease to be outstanding because the Company or one of its affiliates holds
such Security, 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, Securities owned by the Company or any affiliate of
the Company 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 as to which a Responsible Officer of the
Trustee has received written notice to be so owned shall be so disregarded. Any Securities so owned
which are pledged by the Company, or by any affiliate of the Company, as security for loans or
other obligations, otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge agreement and is free
to exercise in its or his discretion the right to vote such securities, uncontrolled by the Company
or by any such affiliate.



     Section 2.10 Temporary Securities. Until definitive Securities of any series are ready
for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities of
such series. Temporary Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers of the Company executing the temporary Securities, as
evidenced by their execution of such temporary Securities. If temporary Securities of any series
are issued, the Company will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any series, the temporary
Securities of such series shall be exchangeable for definitive Securities of such series and tenor
upon surrender of such temporary Securities at the office or agency of the Company designated for
such purpose pursuant to Section 4.2, 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 such series and tenor and authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series.



     Section 2.11 Cancellation. The Company at any time may 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 for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar, any transfer agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee shall cancel and dispose of in
accordance with its customary procedures all Securities surrendered for transfer, exchange, payment
or cancellation and shall deliver a certificate of disposition to the Company. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to the Trustee for
cancellation.



     Section 2.12 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” and
“CINS” numbers (if then generally in use), and the Trustee shall use CUSIP numbers or CINS numbers,
as the case may be, in notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.



     Section 2.13 Defaulted Interest. If the Company defaults in a payment of interest on
the Registered Securities, it shall pay, or shall deposit with the Paying Agent money in
immediately available funds sufficient to pay, the defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest (as may be specified in the terms thereof,
established pursuant to Section 2.3) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the Company for the payment of
defaulted interest, whether or not such day is a Business Day. At least 15 days before such special
record date, the Company shall mail to each Holder of such Registered Securities and to the Trustee
a notice that states the special record date, the payment date and the amount of defaulted interest
to be paid.



     Section 2.14 Series May Include Tranches. A series of Securities may include one or
more tranches (each a “tranche”) of Securities. The Securities of different tranches may have one
or more different terms, including authentication dates and public offering prices, but all the
Securities within each such tranche shall have identical terms, including authentication date and
public offering price. Notwithstanding any other provision of this Indenture, with respect to
Sections 2.2 (other than the fourth, sixth and seventh paragraphs thereof) through 2.4, 2.7, 2.8,
2.10,



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3.1 through 3.5, 4.2, 7.1 through 7.14, 10.1 through 10.7, 11.2 and Section 13.7, if any series of
Securities includes more than one tranche, all provisions of such sections applicable to any series
of Securities shall be deemed equally applicable to each tranche of any series of Securities in the
same manner as though originally designated a series unless otherwise provided with respect to such
series or tranche pursuant to Section 2.3. In particular, and without limiting the scope of the
next preceding sentence, any of the provisions of such sections which provide for or permit action
to be taken with respect to a series of Securities shall also be deemed to provide for and permit
such action to be taken instead only with respect to Securities of one or more tranches within that
series (and such provisions shall be deemed satisfied thereby), even if no comparable action is
taken with respect to Securities in the remaining tranches of that series.




ARTICLE 3.

REDEMPTION



     Section 3.1 Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any series that are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.



     Section 3.2 Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Registered Securities of any series to be redeemed as a whole or in part at the option
of the Company shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Registered Securities of such series at their last addresses as they shall appear upon
the registry books. Notice of redemption to the Holders of Unregistered Securities of any series to
be redeemed as a whole or in part who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more than 60 days prior
to the date fixed for redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Any notice which is mailed or published in
the manner herein provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of such series.



     The notice of redemption to each such Holder shall specify the Principal amount of each
Security of such series held by such Holder to be redeemed, the CUSIP numbers of the Securities to
be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the
manner of calculation thereof, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities with coupons attached
thereto, of all coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice
of redemption shall state the portion of the Principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in Principal amount equal to the unredeemed portion
thereof will be issued.



     The notice of redemption of Securities of any series to be redeemed at the option 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.



     On or before 10:00 a.m. New York City time on the redemption date or, in the case of
Unregistered Securities, on or before 10:00 a.m. New York City time on the Business Day prior to
the redemption date specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is
acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.6)
an amount of money sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If all of the outstanding Securities of a series are to be redeemed, the
Company will deliver to the Trustee at least 10 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph of this Section 3.2 (or such
shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating that all
such Securities are to be redeemed. If less than all the outstanding Securities of a series are



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to be redeemed, the Company will deliver to the Trustee at least 15 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the first paragraph of this Section
3.2 (or such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating
the aggregate Principal amount of such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing compliance with
such restriction or condition.




     If less than all the Securities of a series are to be redeemed, the Trustee shall select, in
compliance with the requirements of the principal national securities exchange, if any, on which
the Securities are listed, or, if the Securities are not listed on a national securities exchange,
by lot or in such manner as it shall deem appropriate and fair, Securities of such series to be
redeemed in whole or in part. Securities may be redeemed in part in Principal amounts equal to
authorized denominations for Securities of such series. The Trustee shall promptly notify the
Company in writing of the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the Principal amount thereof to be
redeemed. 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 Security redeemed or to
be redeemed only in part, to the portion of the Principal amount of such Security which has been or
is to be redeemed.



     Section 3.3 Payment Of Securities Called For Redemption. If notice of redemption has
been given as above provided, the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
such date (unless the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to such date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 8.14 and 10.2, such
Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
under this Indenture, and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of payment specified in
said notice, together with all coupons, if any, appertaining thereto maturing after the date fixed
for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided that payment of interest becoming due on or prior to the date fixed
for redemption shall be payable in the case of Securities with coupons attached thereto, to the
Holders of the coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on the relevant record
date subject to the terms and provisions of Sections 2.4 and 2.13 hereof.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the Principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.



     If any Security with coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant coupons maturing after the date fixed for redemption, the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.



     Upon presentation of any Security of any series redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at
the expense of the Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in Principal amount equal to the
unredeemed portion of the Security so presented.



     Section 3.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Unless otherwise provided with respect to any series of Securities, Securities
shall be excluded from eligibility for selection for redemption if they are identified by
registration and certificate number in a written statement signed by an Officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may
be given as being owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Company or (b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company.



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     Section 3.5 Mandatory and Optional Sinking Funds. 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 the Securities of any series is herein referred to as an “optional sinking fund
payment”. The date on which a sinking fund payment is to be made is herein referred to as the
“sinking fund payment date”.



     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities
of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by the Company at the
option of the Company pursuant to the terms of such Securities or through any optional sinking fund
payment. Securities so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.



     On or before the thirtieth day next preceding each sinking fund payment date for any series,
or such shorter period as shall be acceptable to the Trustee, the Company will deliver to the
Trustee an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none of the specified
Securities of such series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have occurred (which have not
been waived or cured) and are continuing and (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Company intends to pay on or
before the next succeeding sinking fund payment date. Any Securities of such series to be credited
and required to be delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered
for cancellation pursuant to Section 2.11 to the Trustee with such Officers’ Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers’ Certificate shall be
irrevocable and, upon its receipt by the Trustee, the Company shall become unconditionally
obligated to make all the cash payments or delivery of Securities therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure of the Company, on or before any
such thirtieth day, to deliver such Officer’s Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such series as provided in this Section.



     If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking fund redemption
price thereof together with accrued interest thereon to the date fixed for redemption. If such
amount shall be $50,000 (or such lesser sum) or less and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 (or such lesser sum) is available. The
Trustee shall select, in the manner provided in Section 3.2, for redemption on such sinking fund
payment date a sufficient Principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers’ Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and beneficially by, and
not pledged or hypothecated by either (a) the Company or (b) an entity specifically identified in
such Officers’ Certificate as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the manner provided in
Section 3.2 (and with the effect provided in Section 3.3) for the redemption of Securities of such
series



15









 





in part at the option of the Company. The amount of any sinking fund payments not so applied
or allocated to the
redemption of Securities of such series shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be applied in accordance with the provisions of
this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the Principal of, premium, if
any, and interest on, the Securities of such series at maturity.




     On or before 10:00 a.m. New York City time on each sinking fund payment date or, in the case
of Unregistered Securities, 10:00 a.m. New York City time on the Business Day prior to the sinking
fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on
the next following sinking fund payment date.



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such Default or Event of Default, be deemed to have been collected under Article
7 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 7.4 or the Default cured on or before the thirtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.



ARTICLE 4.

COVENANTS



     Section 4.1 Payment of Securities. The Company shall pay the Principal of, premium, if
any, and interest on the Securities on the dates and in the manner provided in the Securities and
this Indenture. The interest on Securities with coupons attached (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are evidenced thereby as
they severally mature. The interest on any temporary Unregistered Securities (together with any
additional amounts payable pursuant to the terms of such Securities) shall be paid, as to the
installments of interest evidenced by coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such interest. The interest on
Registered Securities (together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to the Holders thereof (subject to Section 2.4) and at the option
of the Company may be paid by mailing checks for such interest payable to or upon the written order
of such Holders at their last addresses as they appear on the Security Register of the Company.



     Notwithstanding any provisions of this Indenture and the Securities of any series to
the contrary, if the Company and a Holder of any Registered Security so agree, payments of interest
on, and any portion of the Principal of, such Holder’s Registered Security (other than interest
payable at maturity or on any redemption or repayment date or the final payment of Principal on
such Security) shall be made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m., New York City time (or such other time as may be agreed to between
the Company and the Paying Agent), directly to the Holder of such Security (by Federal funds wire
transfer or otherwise) if the Holder has delivered written instructions to the Trustee 15 days
prior to such payment date requesting that such payment will be so made and designating the bank
account to which such payments shall be so made and in the case of payments of Principal,
surrenders the same to the Trustee in exchange for a Security or Securities aggregating the same
Principal amount as the unredeemed Principal amount of the Securities surrendered. The Trustee
shall be entitled to rely on the last instruction delivered by the Holder pursuant to this Section
4.1 unless a new instruction is delivered 15 days prior to a payment date.
The Company will indemnify and hold each of the Trustee and any Paying Agent harmless against any
loss, liability or expense (including attorneys’ fees) resulting from any act or omission to act on
the part of the Company or any such Holder in connection with any such agreement or from making any
payment in accordance with any such agreement.




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     The Company shall pay interest on overdue Principal, and interest on overdue installments of
interest, to the extent lawful, at the rate per annum specified in the Securities.



     Section 4.2 Maintenance of Office or Agency. The Company will maintain in the United
States of America, an office or agency where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company hereby initially
designates the Corporate Trust Office, as such office or agency of the Company. The Company will
give prompt written notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee set forth in
Section 13.2.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of any series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency in the United
States of America for such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such other office or
agency.



     Section 4.3 Certificate to Trustee. The Company will furnish to the Trustee annually,
on or before a date not more than 120 days after the end of its fiscal year (which, on the date
hereof, is a calendar year), a brief certificate which certificate shall comply with the
requirements of the Trust Indenture Act (but which need not contain the statements required by
Section 13.4) from its principal executive, financial or accounting officer certifying (a) that a
review has been conducted of the activities of the Company its Subsidiaries and their respective
performance under the Indenture and (b) that the Company has fulfilled all obligations under the
Indenture (such compliance to be determined without regard to any period of grace or requirement of
notice provided under this Indenture) or specifying each such Default and the nature and status
thereof.



     Section 4.4 Additional Amounts. If the Securities of a series provide for the payment
of additional amounts, 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 Officers’ Certificate, the Company shall
furnish to the Trustee and the principal paying agent, if other than the Trustee, an Officers’
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 Officers’ 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 Officers’ Certificate furnished pursuant to this Section.



     Whenever in this Indenture there is mentioned, in any context, the payment of the Principal
of, premium, if any, or interest or any other amounts on, or in respect of, any Security 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 5.

SUCCESSOR CORPORATION




     Section 5.1 When Company May Merge, Etc. The Company shall not consolidate with, merge
with or into, directly or indirectly, or sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of its



17









 




property and assets (as an entirety or substantially an entirety in one transaction or a series of
related transactions) to any Person or Persons, or permit any Person to merge with or into it,
unless:




     (a) it shall be the continuing Person, or the Person (if other than it) formed by such
consolidation or into which it is merged or that acquired or leased such property and assets (the
"Surviving Person”), shall be a corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof;



     (b) the Surviving Person shall expressly assume, by supplemental indentures which shall be
delivered to the Trustee and shall be in form and substance reasonably satisfactory to the Trustee,
all of the Company’s obligations under the Securities and this Indenture;



     (c) immediately after giving effect to such transaction or series of transactions on a pro
forma basis, no Default or Event of Default shall have occurred and be continuing; and



     (d) the Company or the Surviving Person, as applicable, shall have delivered to the Trustee an
Officers’ Certificate and Opinion of Counsel stating that (y) the transaction or series of
transactions and such supplemental indenture, if any, complies with this Section 5.1, and (z) all
conditions precedent in this Indenture relating to the transaction or series of transactions have
been satisfied.



     Section 5.2 Successor Substituted. Upon any consolidation, combination or merger, or
any sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all
of the property and assets of the Company in accordance with Section 5.1 of this Indenture, the
Surviving Person 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 Surviving Person had been
named as the Company herein and thereafter the predecessor Person, except in the case of (x) a
lease or (y) any sale, assignment, conveyance, transfer, lease or other disposition to one or more
Subsidiaries of the Company, shall be discharged from all obligations and covenants under this
Indenture and the Securities.



ARTICLE 6.

SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE




     Section 6.1 Securityholders’ Lists. The Company will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses
of the holders of the Securities pursuant to Section 312 of the Trust Indenture Act (a)
semi-annually not more than 15 days after each record date for the payment of semi-annual interest
on the Securities, as hereinabove specified, as of such record date, and (b) at such other times as
the Trustee may request in writing, within thirty days after receipt by the Company of any such
request as of a date not more than 15 days prior to the time such information is furnished.



     Section 6.2 Preservation of Information; Communications with Securityholders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities contained in the most recent
list furnished to it as provided in Section 6.1 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if acting in such
capacity).



     (b) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act
with other Securityholders with respect to their rights under this Indenture or under the
Securities.



     Section 6.3 Reports by the Company.



     (a) So long as any Securities are outstanding, the Company shall file with the Trustee, within
15 days after the Company files 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) that the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
The Company shall be deemed to have complied with the previous sentence to the extent that such
information, documents and reports are filed with the Commission via EDGAR (or any successor
electronic delivery procedure).



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



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     Section 6.4 Reports by the Trustee.



     (a) Any Trustee’s report required under Section 313(a) of the Trust Indenture Act shall be
transmitted on or before July 15 in each year following the date hereof, so long as any Securities
are outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than
60 nor less than 45 days prior thereto.



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



ARTICLE 7.

DEFAULT AND REMEDIES




     Section 7.1 Events of Default. An “Event of Default” shall occur with respect to the
Securities of any series if:



     (a) the Company defaults in the payment of the Principal of any Security of such series when
the same becomes due and payable at maturity, upon acceleration, redemption or mandatory
repurchase, including as a sinking fund installment, or otherwise;



     (b) the Company defaults in the payment of interest on any Security of such series when the
same becomes due and payable, and such default continues for a period of 30 days;



     (c) the Company defaults in the performance of or breaches any other covenant or agreement in
this Indenture with respect to any Security of such series or in the Securities of such series
(other than a Default specified in clause (a) and (b) above) and such default or breach continues
for a period of 90 consecutive days or more after written notice to the Company by the Trustee or
to the Company and the Trustee by the Holders of 25% or more in aggregate Principal amount of the
Securities of all series affected thereby specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder;



     (d) a court having jurisdiction in the premises shall enter a decree or order for (i) relief
in respect of the Company or any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the
Company or any Significant Subsidiary or for all or substantially all of the property and assets of
the Company or any Significant Subsidiary or (iii) the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary, and, in each case, such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;



     (e) the Company or any Significant Subsidiary (i) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to
the entry of an order for relief in an involuntary case under any such law, (ii) consents to the
appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any Significant Subsidiary or (iii)
effects any general assignment for the benefit of creditors; or



     (f) any other Event of Default established pursuant to Section 2.3 with respect to the
Securities of such series occurs.



     Section 7.2 Acceleration. (a) If an Event of Default (other than as described in
clauses Section 7.1(d) or Section 7.1(e) that occurs with respect to the Company) with respect to
the Securities of any series then outstanding occurs and is continuing, then, and in each and every
such case, except for any series of Securities the Principal of which shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in aggregate Principal amount
of the Securities of such series then outstanding hereunder by notice in writing to the Company
(and to the Trustee if given by Securityholders), may declare the entire Principal (or, if the
Securities of any such series are Original Issue Discount Securities, such portion of the Principal
amount as may be specified in the terms of such series established pursuant to Section 2.3) of all
Securities of such series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due and payable.



     (b) If an Event of Default described in Section 7.1(d) or Section 7.1(e) occurs and is
continuing with respect to the Company, then the Principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of



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the Principal as may be specified in the terms thereof established pursuant to Section 2.3) of all the
Securities then outstanding and interest accrued thereon, if any, shall be and become immediately
due and payable, without any declaration, notice or other action by any Holder or the Trustee, to
the full extent permitted by applicable law.




     For all purposes under this Indenture, if a portion of the Principal of any Original Issue
Discount Securities shall have been accelerated and declared or become due and payable pursuant to
the provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the Principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the Principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the Principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.



     Section 7.3 Other Remedies. If a payment default or an Event of Default with respect
to the Securities of any series occurs and is continuing, the Trustee may pursue, in its own name
or as trustee of an express trust, any available remedy by proceeding at law or in equity to
collect the payment of Principal of, premium, if any, and interest on the Securities of such series
or to enforce the performance of any provision of the Securities of such series or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding.



     Section 7.4 Waiver of Past Defaults. Subject to Sections 7.2, 7.07 and 11.02, the
Holders of at least a majority in aggregate Principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as is then accelerable under Section 7.2)
of the outstanding Securities of each series affected, by notice to the Trustee, may waive all past
Defaults with respect to the Securities of such series and rescind and annul a declaration of
acceleration and its consequences, if (a) all existing Events of Default, other than nonpayment of
Principal of, premium, if any, or interest on any Security as specified in clauses Section 7.1(a)
and Section 7.1(b) of Section 7.1 that have become due solely by such declaration of acceleration
have been cured or waived and (b) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction. Upon any such waiver, such Default shall cease to exist, and any
Event of Default with respect to the Securities of such series 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 Event of Default or impair any right consequent thereto.



     Section 7.5 Control by Majority. Subject to Sections 8.1 and 8.2(e), the Holders of at
least a majority in aggregate Principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the Principal as is then accelerable under Section 7.2), of the
outstanding Securities of each series affected, determined in accordance with Section 9.3, may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of
such series by this Indenture; provided that the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that may involve the Trustee in personal liability or that
the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not joining
in the giving of such direction; and provided further that the Trustee may take any other action it
deems proper that is not inconsistent with any directions received from Holders of Securities
pursuant to this Section 7.5.



     Section 7.6 Limitation on Suits. No Holder of any Security of any series may institute
any proceeding, judicial or otherwise, with respect to this Indenture or the Securities of such
series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:



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



     (b) the Holders of at least 25% in aggregate Principal amount of outstanding Securities of all
such series affected 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;



     (c) such Holder or Holders have offered to the Trustee indemnity or security reasonably
satisfactory to it against any costs, liabilities or expenses to be incurred in compliance with
such request;



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



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     (e) during such 60-day period, the Holders of a majority in aggregate Principal amount of the
outstanding Securities of all such affected series have not given the Trustee a direction that is
inconsistent with such written request.



     A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.



     Section 7.7 Rights of Holders to Receive Payment. Notwithstanding any other provision
of this Indenture, the right of any Holder of a Security to receive payment of Principal of,
premium, if any, or interest, if any, on such Holder’s Security on or after the respective due
dates expressed on such Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the consent of such Holder.



     Section 7.8 Collection Suit by Trustee. If an Event of Default with respect to the
Securities of any series in payment of Principal or interest specified in clause (a) or (b) of
Section 7.1 occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount (or such portion thereof as
specified in the terms established pursuant to Section 2.3 of Original Issue Discount Securities)
of Principal of, premium, if any, and accrued interest remaining unpaid on, together with interest
on overdue Principal of, and, to the extent that payment of such interest is lawful, interest on
overdue installments of interest on, the Securities of such series, in each case at the rate or
Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities,
and such further amount as shall be sufficient to cover all amounts owing the Trustee under Section
8.7.



     Section 7.9 Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for amounts due the Trustee under Section 8.7) and the Holders
allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered to collect and
receive any moneys, securities or other property payable or deliverable upon conversion or exchange
of the Securities or upon any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it under Section 8.7. Nothing herein contained shall be deemed to
empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.



     Section 7.10 Application of Proceeds. Any moneys collected by the Trustee pursuant to
this Article in respect of the Securities of any series shall be applied in the following order at
the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account
of Principal or interest, upon presentation of the several Securities and coupons appertaining to
such Securities in respect of which moneys have been collected and noting thereon the payment, or
issuing Securities of such series and tenor in reduced Principal amounts in exchange for the
presented Securities of such series and tenor if only partially paid, or upon surrender thereof if
fully paid:



     FIRST: To the payment of all amounts due the Trustee under Section 8.7 applicable to the
Securities of such series in respect of which moneys have been collected;



     SECOND: In case the Principal of the Securities of such series in respect of which moneys have
been collected shall not have become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in such Securities, such payments to
be made ratably to the persons entitled thereto, without discrimination or preference;



     THIRD: In case the Principal of the Securities of such series in respect of which moneys have
been collected shall have become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series for Principal and interest,
with interest upon the overdue Principal, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment of such Principal and
interest or Yield to Maturity, without



21









 




preference or priority of Principal over interest or Yield to Maturity, or of interest or Yield to
Maturity over Principal, or of any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such series, ratably to the aggregate
of such Principal and accrued and unpaid interest or Yield to Maturity; and




     FOURTH: To the payment of the remainder, if any, to the Company or any other person lawfully
entitled thereto.



     Section 7.11 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 Trustee and the Holders shall be restored to their former positions hereunder and
thereafter all rights and remedies of the Company, Trustee and the Holders shall continue as though
no such proceeding had been instituted.



     Section 7.12 Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, in either case in respect to the Securities of any series, a court may require any
party litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant (other than the Trustee) in the suit having due regard to the merits and good faith
of the claims or defenses made by the party litigant. This Section 7.12 does not apply to a suit by
a Holder pursuant to Section 7.7, a suit instituted by the Trustee or a suit by Holders of more
than 10% in Principal amount of the outstanding Securities of such series.



     Section 7.13 Rights and Remedies Cumulative. Except as otherwise provided with respect
to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities in
Section 2.8, 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 7.14 Delay or Omission not Waiver. No delay or omission of the Trustee or of
any Holder 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 7 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.



ARTICLE 8.

TRUSTEE




     Section 8.1 General. The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act and as set forth herein. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it against any loss,
liability or expense. 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 Article 8.



     Section 8.2 Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a)
through (d):



     (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, Officers’ Certificate, Opinion of Counsel (or both), 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 person or persons. The Trustee need not investigate any fact
or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;



     (b) before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
and/or an Opinion of Counsel, which shall conform to Section 13.4 and shall cover such other
matters as the Trustee may reasonably request. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such



22









 




certificate or opinion. Subject to Sections 8.1 and 8.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this Indenture upon the
faith thereof;




     (c) the Trustee may act through its attorneys and agents not regularly in its employ and shall
not be responsible for the misconduct or negligence of any agent or attorney appointed with due
care;



     (d) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;



     (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, order or direction of any of the Holders, unless such Holders
shall have offered to the Trustee security or indemnity reasonably satisfactory to it against any
costs, expenses or liabilities that might be incurred by it in compliance with such request or
direction;



     (f) the Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within its rights or powers or for any action it takes or
omits to take in accordance with the direction of the Holders in accordance with Section 7.5
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;



     (g) the Trustee may consult with counsel and the written 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; and



     (h) prior to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel, Board
Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in aggregate Principal amount of the
Securities of all series affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to proceeding.



     Section 8.3 Individual Rights of Trustee. The Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and
311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following terms shall mean:



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



     (b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company 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 arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.



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     Section 8.4 Trustee’s Disclaimer. The recitals contained herein and in the Securities
(except the Trustee’s certificate of authentication) shall be taken as statements of the Company
and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same.
Neither the Trustee nor any of its agents (a) makes any representation as to the validity or
adequacy of this Indenture or the Securities or (b) shall be accountable for the Company’s use or
application of the proceeds from the Securities.



     Section 8.5 Notice of Default. If any Default with respect to the Securities of any
series occurs and is continuing and if such Default is known to the actual knowledge of a
Responsible Officer with the Corporate Trust Department of the Trustee, the Trustee shall give to
each Holder of Securities of such series notice of such Default within 90 days after it occurs to
all Holders of Securities of such series in the manner and to the extent provided in Section 313(c)
of the Trust Indenture Act, unless such Default shall have been cured or waived before the mailing
or publication of such notice; provided, however, that, except in the case of a Default in the
payment of the Principal of, premium, if any, or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.



     Section 8.6 Reports by Trustee to Holders. The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15
following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).



     A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will promptly notify the Trustee when any Securities are listed on any
stock exchange.



     Section 8.7 Compensation and Indemnity. The Company shall pay to the Trustee such
compensation as shall be agreed upon in writing from time to time for its services. The
compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an
express trust. The Company shall reimburse the Trustee and any predecessor Trustee upon request for
all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee
or such predecessor Trustee. Such expenses shall include the reasonable compensation and expenses
of the Trustee’s or such predecessor Trustee’s agents, counsel and other persons not regularly in
their employ.



     The Company shall indemnify the Trustee and any predecessor Trustee for, and hold them
harmless against, any loss or liability or expense incurred by them without negligence or bad faith
on their part arising out of or in connection with the acceptance or administration of this
Indenture and the Securities or the issuance of the Securities or of series thereof or the trusts
hereunder and the performance of duties under this Indenture and the Securities, including the
costs and expenses of defending themselves against or investigating any claim or liability and of
complying with any process served upon them or any of their officers in connection with the
exercise or performance of any of their powers or duties under this Indenture and the Securities.



     To secure the Company’s payment obligations in this Section 8.7, the Trustee shall have a lien
prior to the Securities on all money or property held or collected by the Trustee, in its capacity
as Trustee, except money or property held in trust to pay Principal of, premium, if any, and
interest on particular Securities.



     The obligations of the Company under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or termination of this
Indenture under bankruptcy law. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or coupons, and the Securities are
hereby subordinated to such senior claim. Without prejudice to any other rights available to the
Trustee under applicable law, if the Trustee renders services and incurs expenses following an
Event of Default under Section 7.1(d) or Section 7.1(e) hereof, the parties hereto and the holders
by their acceptance of the Securities hereby agree that such expenses are intended to constitute
expenses of administration under any bankruptcy law.



     Section 8.8 Disqualification; Conflicting Interests. If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.



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     Section 8.9 Corporate Trustee Required; Eligibility. There shall at all times be a
Trustee with respect to the Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the
Commission, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $100,000,000, and subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 8.9 the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Company may not, nor may any Affiliate of the Company,
serve as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.9, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.10.



     Section 8.10 Replacement of Trustee. A resignation or removal of the Trustee as
Trustee with respect to the Securities of any series and appointment of a successor Trustee as
Trustee with respect to the Securities of any series shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section 8.10.



     The Trustee may resign as Trustee with respect to the Securities of any series at any time by
so notifying the Company in writing. The Holders of a majority in Principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with respect to the
Securities of such series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may remove the Trustee as
Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible
under Section 7.13 of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.



     If the Trustee resigns or is removed as Trustee with respect to the Securities of any series,
or if a vacancy exists in the office of Trustee with respect to the Securities of any series for
any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within one
year after the successor Trustee takes office, the Holders of a majority in Principal amount of the
outstanding Securities of such series may appoint a successor Trustee in respect of such Securities
to replace the successor Trustee appointed by the Company. If the successor Trustee with respect to
the Securities of any series does not deliver its written acceptance required by Section 7.11
within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of a majority in Principal amount of the outstanding Securities of such series may
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.



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



     Notwithstanding replacement of the Trustee with respect to the Securities of any series
pursuant to this Section 7.10 and Section 7.11, the Company’s obligations under Section 8.7 shall
continue for the benefit of the retiring Trustee.



     Section 8.11 Acceptance of Appointment by Successor. In case of the appointment
hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges and subject to the lien provided for in Section 8.7, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.



     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the 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



25









 




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 or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.




     Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be eligible under this Article and qualified under Section 310(b) of the
Trust Indenture Act.



     Section 8.12 Successor Trustee By Merger, Etc. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate trust business to,
another corporation or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be the successor Trustee
with the same effect as if the successor Trustee had been named as the Trustee herein.



     Section 8.13 Eligibility. This Indenture shall always have a Trustee who satisfies the
requirements of Trust Indenture Act Section 310(a). The Trustee shall have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published annual report of
condition.



     Section 8.14 Money Held in Trust. The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the extent required by law
and except for money held in trust under Article 10 of this Indenture.



     Section 8.15 Preferential Collection of Claims Against the Company. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.



ARTICLE 9.

SECURITYHOLDERS




     Section 9.1 Evidence of Action by Securityholders. Whenever in this Indenture it is
provided that the holders of a majority or specified percentage in aggregate principal amount of
the Securities of a particular series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other action), the fact
that at the time of taking any such action the holders of such majority or specified percentage of
that series have joined therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Securities of that series in Person or by agent or proxy
appointed in writing.



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



26









 




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




     Section 9.2 Proof of Execution by Securityholders. Subject to the provisions of
Section 7.1, proof of the execution of any instrument by a Securityholder (such proof will not
require notarization) or his agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:



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



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



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



     Section 9.3 Certain Securities Owned by Company Disregarded. In determining whether
the holders of the requisite aggregate principal amount of Securities of a particular series have
concurred in any direction, consent of waiver under this Indenture, the Securities of that series
that are owned by the Company or any other obligor on the Securities of that series or by an
Affiliate of the Company shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only Securities of such series that
a Responsible Officer of the Trustee knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this
Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Securities and that the pledgee is not an Affiliate. In case of a
dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officer’s Certificate listing and identifying all Securities of a particular
series, if any known by the Company to be owned or held by or for the account of any of the above
described Persons and, subject to Sections 7.1 and 7.2, the Trustee shall be entitled to accept
such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact
that all Securities of such particular series not listed therein are Outstanding for the purpose of
any such determination.



ARTICLE 10.

SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS




     Section 10.1 Satisfaction and Discharge of Indenture. If at any time (a)(i) all
Securities of any series issued that have been authenticated and delivered have been delivered by
the Company to the Trustee for cancellation (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.8); or (ii)
all the Securities of any series issued that have not been delivered by the Company to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by such Trustee in the Company’s name and at
the Company’s expense, the Company shall have irrevocably deposited or caused to be deposited with
the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Company in accordance with Section 10.4) or U.S. Government Obligations,
maturing as to principal and interest in such amounts and at such times as will insure (without
consideration of the reinvestment of such interest) the availability of cash, or a combination
thereof, sufficient to pay at maturity or upon redemption all Securities of such series (other than
any Securities of such series which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.8) not theretofore delivered to the Trustee for
cancellation, including Principal and interest due or to become due on or prior to such date of
maturity or redemption as the case may be; (b) the Company has



27









 




paid or caused to be paid all other
sums then due and payable under this Indenture; and (c) the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent under this Indenture relating to the satisfaction and discharge of this
Indenture pursuant to this Section 8.1 have been complied with, then this Indenture shall cease to
be of further effect with respect to Securities of such series (except as to (i) rights of
registration of transfer and exchange of securities of such series, and the Company’s right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of holders to receive payments of Principal thereof and interest thereon,
upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the
holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and
immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or
any of them), and the Trustee, on demand of the Company accompanied by an Officers’ Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with respect to such series;
provided that the rights of Holders of the Securities to receive amounts in respect of Principal
of, premium, if any, and interest on the Securities held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities exchange upon which the
Securities are listed. The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.




     Section 10.2 Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 10.4, all moneys (including U.S. Government Obligations and the proceeds
thereof) deposited with the Trustee pursuant to Section 10.1, Section 10.5 or Section 10.6 shall be
held in trust and applied by it to the payment, either directly or through any paying agent to the
Holders of the particular Securities of such series for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due thereon for
Principal and interest; but such money need not be segregated from other funds except to the extent
required by law.



     Section 10.3 Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys
then held by any paying agent under the provisions of this Indenture with respect to such series of
Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to such moneys.



     Section 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of
the Principal of, premium, if any, or interest on any Security of any series and not applied but
remaining unclaimed for two years after the date upon which such Principal or interest shall have
become due and payable, shall, upon the written request of the Company and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Company by the Trustee for such series or such paying agent, and the Holder of the
Security of such series shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the Company for any
payment which such Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease.



     Section 10.5 Defeasance and Discharge of Indenture. The Company shall be deemed to
have paid and shall be discharged from any and all obligations in respect of the Securities of any
series, after the deposit referred to in clause (i) hereof has been made, and the provisions of
this Indenture shall no longer be in effect with respect to the Securities of such series (and the
Trustee, at the reasonable written request and expense of the Company, shall execute proper
instruments acknowledging the same), except as to: (a) rights of Holders of the Securities of such
series to receive payments of Principal thereof, premium thereto, and interest thereon, upon the
original stated due dates therefor, (b) the Company’s obligations with respect to the issuance of
temporary Securities and the registration of transfer with respect to the Securities of such
series, the Company’s right of optional redemption, substitution of mutilated, defaced, destroyed,
lost or stolen Securities of such series and the maintenance an office or agency for payment for
security payments held in trust pursuant to clause (i) hereof, (c) the rights, obligations and
immunities of the Trustee hereunder, and (d) the defeasance provisions contained in Article 10 of
this Indenture; provided that the following conditions shall have been satisfied:



     (i) with reference to this Section 10.5 the Company irrevocably has deposited or caused to be
deposited with the Trustee (or another qualifying trustee satisfying the requirements of Section
7.13) as trust funds in trust, for the purposes of making the following payments, specifically
pledged as security for, and dedicated solely to, the



28









 




benefits of the Holders of the Securities of
such series, (A) money in an amount, (B) U.S. Government Obligations
that through the payment of interest and principal in respect thereof in accordance with their
terms will provide not later than one day before the due date of any payment referred to in
subclause (x) or (y) of this clause (i), or (C) a combination thereof, in each case sufficient, in
the written opinion of an nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and discharge, without
consideration of reinvestment and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof, and which shall be applied by the Trustee to pay and
discharge (x) all of the Principal of, premium, if any, and each installment of interest on the
outstanding Securities of such series on the maturity or due dates thereof or if the Company has
made irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by
the Trustee, the redemption date, as the case may be, and (y) any mandatory sinking fund payments
or analogous payments applicable to the Securities of such series on the day on which such payments
are due and payable in accordance with the terms of Securities of such series and the Indenture
with respect to the Securities of such series;




     (ii) the Company has delivered to the Trustee (A) either (x) an Opinion of Counsel to the
effect that, under then applicable U.S. federal income tax law, Holders of Securities of such
series will not recognize gain or loss for U.S. federal income tax purposes as a result of the
Company’s exercise of its option under this Section 10.5 and will be subject to U.S. federal income
tax on the same amount and in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred or (y) a ruling directed to the Trustee
received from the Internal Revenue Service to the same effect as the aforementioned Opinion of
Counsel and (B) an Opinion of Counsel to the effect that the creation of the defeasance trust does
not violate the Investment Company Act;



     (iii) immediately after giving effect to such deposit on a pro forma basis, no Event of
Default, of event that after the giving of notice or lapse of time or both would become an Event of
Default, and such deposit shall not result in a breach or violation of, or constitute a default
under, any other material agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound;



     (iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent to the defeasance and discharge under this
Section 10.5 have been complied with; and



     (v) if the Securities of such series are to be redeemed prior to the final maturity thereof
(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.



     Section 10.6 Defeasance of Certain Obligations. The Company may omit to comply with
any term, provision or condition set forth in, and this Indenture will no longer be in effect with
respect to, any covenant established pursuant to Section 2.3(s) and Section 7.1(h) (with respect to
any covenants established pursuant to Section 2.3(s)) of Section 7.1 shall be deemed not to
constitute a Default or an Event of Default with respect to Securities of any series, if:



     (a) with reference to this Section 10.6, the Company has irrevocably deposited or caused to be
deposited with the Trustee (or another qualifying trustee satisfying the requirements of Section
7.13) as trust funds in trust, for the purposes of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefits of the Holders of the Securities of
such series, (i) money in an amount, (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to below in this clause (a), or (iii) a
combination thereof, in each case sufficient, in the written opinion of an nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, without consideration of reinvestment and after payment of all
federal, state and local taxes or other charges and assessments in respect thereof, and which shall
be applied by the Trustee to pay and discharge all of the Principal of, premium, if any, and each
installment of interest on the outstanding Securities of such series on the maturity or due dates
thereof or if the Company has made irrevocable arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee, the redemption date, as the case may be;



     (b) the Company has delivered to the Trustee an Opinion of Counsel to the effect that the
creation of the defeasance trust does not violate the Investment Company Act;



29









 





     (c) immediately after giving effect to such deposit on a pro forma basis, no Event of Default,
of event that after the giving of notice or lapse of time or both would become an Event of Default,
and such deposit shall not result in a
breach or violation of, or constitute a default under, any other material agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;



     (d) the Company has delivered to the Trustee an Opinion of Counsel to the effect that Holders
of Securities of such series will not recognize gain or loss for U.S. federal income tax purposes
as a result of the Company’s exercise of its option under this Section 10.6 and will be subject to
U.S. 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;



     (e) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance under this Section have been
complied with; and



     (f) if the Securities of such series are to be redeemed prior to the final maturity thereof
(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.



     Section 10.7 Reinstatement. If the Trustee or paying agent is unable to apply any
monies or U.S. Government Obligations in accordance with Article 10 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under this
Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article until such time as the Trustee or paying agent is permitted to apply all
such monies or U.S. Government Obligations in accordance with Article 10; provided, however, that
if the Company has made any payment of Principal of, premium, if any, or interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the monies or U.S. Government
Obligations held by the Trustee or paying agent.



     Section 10.8 Indemnity. The Company shall pay and indemnify the Trustee (or other
qualifying trustee, collectively for purposes of this Section 10.8 and Section 10.2, the “Trustee”)
against any tax, fee or other charge, imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.1, Section 10.5 or Section 10.6 or the principal or
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 Securities and any coupons appertaining thereto.



     Section 10.9 Excess Funds. Anything in this Article 10 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of
the Company, any money or U.S. Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 10.1, Section 10.5 or Section 10.6 which, in the
opinion of a nationally recognized firm of Independent Public Accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect a discharge or defeasance, as applicable, in accordance
with this Article 10.



     Section 10.10 Qualifying Trustee. Any trustee appointed pursuant to Section 10.5 or
Section 10.6 for the purpose of holding money or U.S. Government Obligations deposited pursuant to
such Sections shall be appointed under an agreement in form acceptable to the Trustee and shall
provide to the Trustee a certificate, upon which certificate the Trustee shall be entitled to
conclusively rely, that all conditions precedent provided for herein to the related defeasance have
been complied with. In no event shall the Trustee be liable for any acts or omissions of said
trustee



ARTICLE 11.

AMENDMENTS, SUPPLEMENTS AND WAIVERS




     Section 11.1 Without Consent of Holders. The Company and the Trustee may amend or
supplement this Indenture or the Securities of any series without notice to or the consent of any
Holder:



     (a) to cure any ambiguity, defect or inconsistency in this Indenture; provided that such
amendments or supplements shall not adversely affect the interests of the Holders in any material
respect;



     (b) to comply with Article 5;



     (c) to maintain the qualification of this Indenture under the Trust Indenture Act;



30









 





     (d) to evidence and provide for the acceptance of appointment hereunder with respect to the
Securities of any or all series by a successor Trustee 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 7.11;



     (e) to provide for the issuance of additional Securities;



     (f) to establish the form or forms or terms of Securities of any series or of the coupons
appertaining to such Securities as permitted by Section 2.3;



     (g) to provide for uncertificated or Unregistered Securities and to make all appropriate
changes for such purpose; or



     (h) to conform any provision to the “Description of Notes” in the offering memorandum or
prospectus for the Securities of such series.



     Section 11.2 With Consent of Holders. Subject to Sections 7.4 and 7.7, without prior
notice to any Holders, the Company and the Trustee may amend this Indenture and the Securities of
any series with the written consent of the Holders of a majority in Principal amount of the
outstanding Securities of each series affected by such amendment, and the Holders of a majority in
Principal amount of the outstanding Securities of each series affected thereby by written notice to
the Trustee may waive future compliance by the Company with any provision of this Indenture or the
Securities of such series.



     Notwithstanding the provisions of this Section 11.2, without the consent of each Holder
affected thereby, an amendment or waiver, including a waiver pursuant to Section 7.4, may not:



     (a) change the stated maturity of the Principal of, or any installment of interest on, such
Holder’s Security,



     (b) reduce the Principal amount of, or the rate of interest on (including any amount in
respect of original issue discount), such Holder’s Security;



     (c) change the place or currency of payment of the Principal of, premium, if any, or any
installment of interest on, such Holder’s Security;



     (d) impair the right to institute suit for the enforcement of any payment on or after the
stated maturity (or in the case of a redemption, on or after the redemption date) of such Holder’s
Security;



     (e) waive a default in the payment of the Principal of, premium, if any, or interest on, such
Holder’s Security;



     (f) modify any of the provisions of this Section 11.2 requiring the consent of a requisite
number of holders, except to increase any percentage requiring consent or to provide that certain
other provisions of this Indenture cannot be modified or waived without the consent of the Holder
of each outstanding Securities; and



     (g) reduce the percentage or aggregate Principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any supplemental indenture or for any
waiver of compliance with certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture.



     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 Holders of Securities of such series with respect to
such covenant or provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or of the coupons appertaining to such Securities.



     It shall not be necessary for the consent of any Holder under this Section 11.2 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section 11.2 becomes effective, the
Company shall give to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.



31









 





     Section 11.3 Revocation and Effect of Consent. Until an amendment or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to its Security or portion of its Security.
Such revocation shall be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
shall become
effective with respect to any Securities affected thereby on receipt by the Trustee of written
consents from the requisite Holders of outstanding Securities affected thereby.



     The Company may, but shall not be obligated to, fix a record date (which may be not less than
five nor more than 60 days prior to the solicitation of consents) for the purpose of determining
the Holders of the Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the immediately preceding
paragraph, those Persons who were such Holders at such record date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective for more than 90 days
after such record date.



     After an amendment, supplement or waiver becomes effective with respect to the Securities of
any series affected thereby, it shall bind every Holder of such Securities unless it is of the type
described in any of clauses (a) through (g) of Section 11.2. In case of an amendment or waiver of
the type described in clauses (a) through (g) of Section 11.2, the amendment or waiver shall bind
each such Holder who has consented to it and every subsequent Holder of a Security that evidences
the same indebtedness as the Security of the consenting Holder.



     Section 11.4 Notation on or Exchange of Securities. If an amendment, supplement or
waiver changes the terms of any Security, the Trustee may require the Holder thereof to deliver it
to the Trustee. The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an appropriate notation on any Security
of such series thereafter authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate
a new Security of the same series and tenor that reflects the changed terms.



     Section 11.5 Trustee to Sign Amendments, Etc. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this Article 11 is
authorized or permitted by this Indenture, stating that all requisite consents have been obtained
or that no consents are required and stating that such supplemental indenture constitutes the
legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to customary exceptions. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.



     Section 11.6 Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article 11 shall conform to the requirements of the Trust Indenture Act
as then in effect.



     Section 11.7 Amendments to Subordination Provisions. Any amendment to the provisions
of Article 12 hereof will require the consent of each holder of Senior Debt that would be adversely
affected by such amendment.



ARTICLE 12.

SUBORDINATION




     Section 12.1 Agreement to Subordinate.



     (a) The Company agrees, and each Holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article, to the prior payment in full of all Senior Debt (whether outstanding on
the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination
is for the benefit of the holders of Senior Debt.



     (b) If any holder of Senior Debt is required by any court or otherwise to return to the
Company, trustee, or similar official acting in relation to the Company, any amount paid by the
Company to such holder of Senior Debt, the provisions of this Article 12, to the extent theretofore
discharged, shall be reinstated in full force and effect; provided, however, that any amounts paid
pursuant to this Indenture to Holders of Securities shall not be subject to disgorgement pursuant
to the provisions of this paragraph (b).



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     Section 12.2 Certain Definitions.



     “Representative” means the indenture trustee or other trustee, agent or representative for any
Senior Debt.



     A “distribution” may consist of cash, securities or other property, by set-off or otherwise.



     Section 12.3 Liquidation; Dissolution; Bankruptcy. Upon any distribution to creditors
of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar
proceeding relating to the Company or its property, an assignment for the benefit of creditors or
any marshalling of the Company’s assets and liabilities:



     (i) holders of Senior Debt shall be entitled to receive payment in full of all Obligations due
in respect of such Senior Debt (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt) before the Holders of Securities shall be
entitled to receive any payment with respect to the Securities (except that Holders may receive (i)
securities that are subordinated to at least the same extent as the Securities to (a) Senior Debt
and (b) any securities issued in exchange for Senior Debt and (ii) payments and other distributions
made from any defeasance trust created pursuant to Section 10.5 hereof); and



     (ii) until all Obligations with respect to Senior Debt (as provided in subsection (i) above)
are paid in full, any distribution to which the Holders of Securities would be entitled but for
this Article shall be made to holders of Senior Debt (except that Holders may receive (i)
securities that are subordinated to at least the same extent as the Securities to (a) Senior Debt
and (b) any securities issued in exchange for Senior Debt and (ii) payments and other distributions
made from any defeasance trust created pursuant to Section 10.5 hereof), as their interests may
appear.



     Section 12.4 Default on Senior Debt.



     (a) The Company may not make any payment or distribution to the Trustee or any Holder in
respect of the Securities and may not acquire from the Trustee or any Holder any Securities for
cash or property (other than (1) securities that are subordinated to at least the same extent as
the Securities to (A) Senior Debt and (B) any securities issued in exchange for Senior Debt and (2)
payments and other distributions made from any defeasance trust created pursuant to Section 10.5
hereof) until all principal and other Obligations with respect to the Senior Debt have been paid in
full if:



     (1) a default in the payment of the principal of, premium, if any, or interest on Senior Debt
occurs and is continuing beyond any applicable grace period in the agreement, indenture or other
document governing such Senior Debt; or



     (2) a default on Senior Debt occurs and is continuing with respect to Senior Debt that then
permits holders of the Senior Debt as to which such default relates to accelerate its maturity and
the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a Person who may
give it pursuant to Section 12.12 hereof. If the Trustee receives any such Payment Blockage Notice,
no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and
until (I) at least 360 days shall have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice and (II) all scheduled payments of principal and premium, if any, and
interest on the Securities that have come due (other than by reason of acceleration) have been paid
in full in cash. No default described in this paragraph (2) that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a subsequent Payment Blockage Notice.



     (b) The Company may and shall resume payments on and distributions in respect of the
Securities and may acquire them:



     (1) in the case of a default described in Section 12.4(a)(1), upon the date on which the
default is cured or waived,



     (2) in the case of a default referred to in Section 12.4(a)(2) hereof, the earlier of the date
on which such default is cured or waived or 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Senior Debt has been accelerated, and



     (3) if this Article otherwise permits the payment, distribution or acquisition at the time of
such payment, distribution or acquisition.



     Section 12.5 Acceleration of Securities. If payment of the Securities is accelerated
because of an Event of Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.



33









 





     Section 12.6 When Distribution Must be Paid Over. In the event that the Trustee or any
Holder receives any payment of any Obligations with respect to the Securities at a time when a
Responsible Officer of the Trustee or such Holder, as applicable, has actual knowledge that such
payment is prohibited by Section 12.4 hereof, such payment shall be held by the Trustee or such
Holder, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Debt as their interests may appear or their Representative under
the indenture or other agreement (if any) pursuant to which Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of all Obligations with
respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt.



     With respect to the holders of Senior Debt, the Trustee undertakes to perform only such
obligations on the part of the Trustee as are specifically set forth in this Article 12, and no
implied covenants or obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the Trustee shall pay over
or distribute to or on behalf of Holders or the Company or any other Person money or assets to
which any holders of Senior Debt shall be entitled by virtue of this Article 12, except if such
payment is made as a result of the willful misconduct or gross negligence of the Trustee.



     Section 12.7 Notice by Company. The Company shall promptly notify the Trustee and the
Paying Agent of any facts known to the Company that would cause a payment of any Obligations with
respect to the Securities to violate this Article, but failure to give such notice shall not affect
the subordination of the Securities to the Senior Debt as provided in this Article.



     Section 12.8 Subrogation. After all Senior Debt is paid in full and until the
Securities are paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Securities) to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt to the extent that distributions otherwise payable to the
Holders have been applied to the payment of Senior Debt. A distribution made under this Article to
holders of Senior Debt that otherwise would have been made to Holders is not, as between the
Company and Holders, a payment by the Company on the Senior Debt.



     Section 12.9 Relative Rights. This Article defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:



     (a) impair, as between the Company and Holders, the obligation of the Company, which is
absolute and unconditional, to pay principal of, premium, if any, and interest on the Securities in
accordance with their terms;



     (b) affect the relative rights of Holders and creditors of the Company other than rights of
Holders of the Securities in relation to holders of Senior Debt; or



     (c) prevent the Trustee or any Holder from exercising its available remedies upon a Default or
Event of Default, subject to the rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders.



     If the Company fails because of this Article to pay principal of, premium, if any, or interest
on a Security on the due date, the failure is still a Default or Event of Default.



     Section 12.10 Subordination May Not Be Impaired By Company. No right of any holder of
Senior Debt to enforce the subordination of the indebtedness evidenced by the Securities shall be
impaired by any act or failure to act by the Company or any Holder or by the failure of the Company
or any Holder to comply with this Indenture.



     Section 12.11 Distribution or Notice to Representative. Whenever a distribution is to
be made or a notice given to holders of Senior Debt, the distribution may be made and the notice
given to their Representative.



     Upon any payment or distribution of assets of the Company referred to in this Article 12, the
Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such Representative (or of any holder of Senior
Debt for which there is no Representative) or of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior Debt 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 12. 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 to



34









 




participate in any payment or distribution pursuant to
this Article 12, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 12 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 12.12 Rights of Trustee and Paying Agent. Notwithstanding the provisions of
this Article 12 or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would
prohibit the making of any payment or distribution by the Trustee, and the Trustee and any Paying
Agent may continue to make payments on the Securities, unless the Trustee shall have received at
the Corporate Trust Office of the Trustee at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations with respect to the
Securities to violate this Article or a Responsible Officer of the Trustee otherwise has actual
knowledge of such facts. Only the Company or a Representative may give the notice, such notice from
the Company to be in the form of an Officers’ Certificate. Notwithstanding the provisions of this
Article 12 or any other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would permit the resumption of payments on or
distributions in respect of the Securities or the acquisition of the Securities by the Company
unless the Trustee shall have received an Officers’ Certificate or a notice from a Representative
to the effect that such resumption is permitted. Nothing in this Article 12 shall impair the claims
of, or payments to, the Trustee under or pursuant to Section 8.7 hereof.



     The Trustee in its individual or any other capacity may hold Senior Debt with the same rights
it would have if it were not Trustee. Any Agent may do the same with like rights.



     Section 12.13 Authorization to Effect Subordination. Each Holder of a Security by the
Holder’s acceptance thereof authorizes and directs the Trustee on the Holder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination as provided in this
Article 12, and appoints the Trustee to act as the Holder’s attorney-in-fact for any and all such
purposes.



ARTICLE 13.

MISCELLANEOUS




     Section 13.1 Trust Indenture Act of 1939. This Indenture shall incorporate and be
governed by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall control.



     Section 13.2 Notices. Any notice or communication shall be sufficiently given if
written and (a) if delivered in person when received or (b) if mailed by first class mail 5 days
after mailing, or (c) as between the Company and the Trustee if sent by facsimile transmission,
when transmission is confirmed, in each case addressed as follows:



	 	 	 

	if to the Company:

	 	LMI Aerospace, Inc.
	 

	 	411 Fountain Lakes Boulevard
	 

	 	St. Charles, Missouri 63301
	 

	 	Facsimile: (636) 946-6525
	 

	 	Attention: Chief Financial Officer
	 
	 	 
	 

	 	With a required copy, (which shall
	 

	 	not constitute notice) to:
	 
	 

	 	Gallop, Johnson & Neuman, L.C.
	 

	 	101 South Hanley
	 

	 	Suite 1700
	 

	 	St. Louis, Missouri 63105
	 

	 	Facsimile: (314) 615-6001
	 

	 	Attention: Robert H. Wexler, Esq.






35









 





	 	 	 

	if to the Trustee:

	 	U.S. Bank National Association
	 

	 	40 Pearl Street NW, Suite 838
	 

	 	Grand Rapids, Michigan 49503
	 

	 	Facsimile: (616) 459-3561
	 

	 	Attention: Corporate Trust Services






     The Company or the Trustee by written notice to the other may designate additional or
different addresses for subsequent notices or communications.



     Any notice or communication shall be sufficiently given to Holders of any Unregistered
Securities by mailing to the Holders thereof who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so
furnished to the Trustee and to Holders of Registered Securities by mailing to such Holders at
their addresses as they shall appear on the Security Register. Notice mailed shall be sufficiently
given if so mailed within the time prescribed. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at the same time.



     Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this Section 13.2, it is duly given,
whether or not the addressee receives it.



     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 it shall be impracticable to give notice as herein contemplated, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.



     Section 13.3 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:



     (a) an Officers’ Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with; and



     (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.



     Section 13.4 Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
(other than the certificate required by Section 4.3) shall include:



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



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



     (c) a statement that, in the opinion of each such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and



     (d) a statement as to whether or not, in the opinion of each such person, such condition or
covenant has been complied with; provided, however , that, with respect to matters of fact, an
Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.



     Section 13.5 Evidence of Ownership. The Company, the Trustee and any agent of the
Company or the Trustee may deem and treat the Holder of any Unregistered Security and the Holder of
any coupon as the absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving payment thereof or
on account thereof and for all other purposes, and neither the Company, the Trustee, nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary. The fact of the
holding by any Holder of an Unregistered Security, and the identifying number of such Security and
the date of



36









 




his holding the same, may be proved by the production of such Security or by a certificate executed
by any trust company, bank, banker or recognized securities dealer wherever situated satisfactory
to the Trustee, if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security bearing a specified
identifying number was deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities specified therein shall be
presumed to continue for a period of one year from the date of such certificate unless at the time
of any determination of such holding (1) another certificate bearing a later date issued in respect
of the same Securities shall be produced or (2) the Security specified in such certificate shall be
produced by some other Person, or (3) the Security specified in such certificate shall have ceased
to be outstanding. Subject to Article 8, the fact and date of the execution of any such instrument
and the amount and numbers of Securities held by the Person so executing such instrument may also
be proven in accordance with such reasonable rules and regulations as may be prescribed by the
Trustee or in any other manner which the Trustee may deem sufficient.




     The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name any Registered Security shall be registered upon the Security Register for
such series as the absolute owner of such Registered Security (whether or not such Registered
Security shall be overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the Principal of, premium, if any, and,
subject to the provisions of this Indenture, interest on such Registered Security and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary.



     Section 13.6 Rules by Trustee, Paying Agent or Registrar. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make
reasonable rules for its functions.



     Section 13.7 Payment Date Other Than a Business Day. Except as otherwise provided with
respect to a series of Securities, if any date for payment of Principal or interest on any Security
shall not be a Business Day at any place of payment, then payment of Principal of, premium, if any,
or interest on such Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force and effect as if made
on such date and no interest shall accrue in respect of such payment for the period from and after
such date.



     Section 13.8 Governing Law. The laws of the State of New York shall govern this
Indenture and the Securities.



     Section 13.9 No Adverse Interpretation of Other Agreements. This Indenture may not be
used to interpret another indenture or loan or debt agreement of the Company or any Subsidiary of
the Company. Any such indenture or agreement may not be used to interpret this Indenture.



     Section 13.10 Successors. All agreements of the Company in this Indenture and the
Securities shall bind their respective successors. All agreements of the Trustee in this Indenture
shall bind its successors.



     Section 13.11 Duplicate Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     Section 13.12 Separability. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     Section 13.13 Table of Contents, Headings, Etc. The Table of Contents and headings of
the Articles and Sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.



     Section 13.14 Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement contained
in this Indenture or any indenture supplemental hereto, or in any Security or any coupons
appertaining thereto, or because of any Indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder, officer, director,
employee or controlling person, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being



37









 




expressly waived and released by the acceptance of the Securities and the coupons appertaining
thereto by the holders thereof and as part of the consideration for the issue of the Securities and
the coupons appertaining thereto.




     Section 13.15 Judgment Currency. The Company 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, premium, if any, 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 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 Business 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 Business Day 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 subsection (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 13.16 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.



     Section 13.17 Force Majeure. In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



38









 





SIGNATURES




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




	 	 	 	 	 
	 	LMI AEROSPACE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




39