exv4w2






EXHIBIT 4.2




 


LIONS GATE ENTERTAINMENT INC.




as Company




LIONS GATE ENTERTAINMENT CORP.




as Parent




AND




[                                                            ]




as Trustee




 






INDENTURE




Dated as of                      __, 20___




 






Senior Debt Securities




 


















 








CROSS-REFERENCE TABLE(1)




	 	 	 
	SECTION OF	 	 
	TRUST INDENTURE	 	SECTIONS OF
	ACT OF 1939, AS AMENDED	 	INDENTURE
	310(a)
	 	8.9
	310(b)
	 	8.8
	311(a)
	 	8.13
	311(b)
	 	8.13
	312(a)
	 	6.1
	312(b)
	 	6.2(c)
	312(c)
	 	6.2(d)
	313(a)
	 	6.4
	313(b)
	 	6.4
	313(c)
	 	6.4
	313(d)
	 	6.4
	314(a)
	 	6.3, 15.12
	314(c)
	 	15.7(a)
	314(e)
	 	15.7(b)
	315(a)
	 	8.1
	315(b)
	 	8.14
	315(c)
	 	8.1
	315(d)
	 	8.1
	315(e)
	 	7.7
	316(a)
	 	7.6, 9.4
	316(b)
	 	7.4
	316(c)
	 	9.1
	317(a)
	 	7.2
	317(b)
	 	5.2
	318(a)
	 	15.9








 




			
	(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.














 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I            DEFINITIONS
	 	 	1	 
	SECTION 1.1 DEFINITIONS OF TERMS
	 	 	1	 
	ARTICLE II            ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
	 	 	6	 
	SECTION 2.1 DESIGNATION AND TERMS OF SECURITIES
	 	 	6	 
	SECTION 2.2 FORM OF SECURITIES AND TRUSTEE’S CERTIFICATE
	 	 	8	 
	SECTION 2.3 DENOMINATIONS; PROVISIONS FOR PAYMENT
	 	 	9	 
	SECTION 2.4 EXECUTION AND AUTHENTICATIONS
	 	 	10	 
	SECTION 2.5 REGISTRATION OF TRANSFER AND EXCHANGE
	 	 	11	 
	SECTION 2.6 TEMPORARY SECURITIES
	 	 	12	 
	SECTION 2.7 MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES
	 	 	13	 
	SECTION 2.8 CANCELLATION
	 	 	13	 
	SECTION 2.9 BENEFITS OF INDENTURE
	 	 	14	 
	SECTION 2.10 AUTHENTICATING AGENT
	 	 	14	 
	SECTION 2.11 GLOBAL SECURITIES
	 	 	15	 
	SECTION 2.12 CUSIP AND ISIN NUMBERS
	 	 	16	 
	ARTICLE III            GUARANTEE
	 	 	16	 
	SECTION 3.1 GUARANTEE
	 	 	16	 
	SECTION 3.2 CONSIDERATION
	 	 	17	 
	SECTION 3.3 EXECUTION OF GUARANTEE
	 	 	17	 
	SECTION 3.4 SUCCESSOR GUARANTEE
	 	 	18	 
	SECTION 3.5 LIMITATION ON PARENT LIABILITY
	 	 	18	 
	ARTICLE IV            REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
	 	 	18	 
	SECTION 4.1 REDEMPTION
	 	 	18	 
	SECTION 4.2 NOTICE OF REDEMPTION
	 	 	19	 
	SECTION 4.3 PAYMENT UPON REDEMPTION
	 	 	20	 
	SECTION 4.4 SINKING FUND
	 	 	20	 
	SECTION 4.5 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
	 	 	20	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 4.6 REDEMPTION OF SECURITIES FOR SINKING FUND
	 	 	21	 
	ARTICLE V            COVENANTS
	 	 	21	 
	SECTION 5.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
	 	 	21	 
	SECTION 5.2 PAYING AGENT AND SECURITY REGISTRAR
	 	 	22	 
	SECTION 5.3 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE
	 	 	23	 
	SECTION 5.4 COMPLIANCE WITH CONSOLIDATION PROVISIONS
	 	 	23	 
	ARTICLE VI            SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY, THE PARENT AND THE TRUSTEE
	 	 	24	 
	SECTION 6.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF SECURITYHOLDERS
	 	 	24	 
	SECTION 6.2 PRESERVATION OF INFORMATION; COMMUNICATIONS WITH SECURITYHOLDERS
	 	 	24	 
	SECTION 6.3 REPORTS BY THE COMPANY OR THE PARENT
	 	 	25	 
	SECTION 6.4 REPORTS BY THE TRUSTEE
	 	 	25	 
	ARTICLE VII            REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
	 	 	25	 
	SECTION 7.1 EVENTS OF DEFAULT
	 	 	25	 
	SECTION 7.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
	 	 	27	 
	SECTION 7.3 APPLICATION OF MONEYS COLLECTED
	 	 	29	 
	SECTION 7.4 LIMITATION ON SUITS
	 	 	29	 
	SECTION 7.5 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER
	 	 	30	 
	SECTION 7.6 CONTROL BY SECURITYHOLDERS
	 	 	30	 
	SECTION 7.7 UNDERTAKING TO PAY COSTS
	 	 	31	 
	ARTICLE VIII            CONCERNING THE TRUSTEE
	 	 	31	 
	SECTION 8.1 CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE
	 	 	31	 
	SECTION 8.2 CERTAIN RIGHTS OF TRUSTEE
	 	 	32	 
	SECTION 8.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR SECURITIES
	 	 	34	 
	SECTION 8.4 MAY HOLD SECURITIES
	 	 	34	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	SECTION 8.5 MONEYS HELD IN TRUST
	 	 	34	 
	SECTION 8.6 COMPENSATION AND REIMBURSEMENT
	 	 	34	 
	SECTION 8.7 RELIANCE ON OFFICER’S CERTIFICATE
	 	 	35	 
	SECTION 8.8 DISQUALIFICATION; CONFLICTING INTERESTS
	 	 	35	 
	SECTION 8.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
	 	 	35	 
	SECTION 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
	 	 	36	 
	SECTION 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
	 	 	37	 
	SECTION 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
	 	 	38	 
	SECTION 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY
	 	 	38	 
	SECTION 8.14 NOTICE OF DEFAULT
	 	 	38	 
	SECTION 8.15 MAINTENANCE OF OFFICE IN THE CITY OF NEW YORK
	 	 	39	 
	ARTICLE IX            CONCERNING THE SECURITYHOLDERS
	 	 	39	 
	SECTION 9.1 EVIDENCE OF ACTION BY SECURITYHOLDERS
	 	 	39	 
	SECTION 9.2 PROOF OF EXECUTION BY SECURITYHOLDERS
	 	 	40	 
	SECTION 9.3 WHO MAY BE DEEMED OWNERS
	 	 	40	 
	SECTION 9.4 CERTAIN SECURITIES OWNED BY COMPANY OR PARENT DISREGARDED
	 	 	40	 
	SECTION 9.5 ACTIONS BINDING ON FUTURE SECURITYHOLDERS
	 	 	41	 
	ARTICLE X            SUPPLEMENTAL INDENTURES
	 	 	41	 
	SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF SECURITYHOLDERS
	 	 	41	 
	SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS
	 	 	42	 
	SECTION 10.3 EFFECT OF SUPPLEMENTAL INDENTURES
	 	 	43	 
	SECTION 10.4 SECURITIES AFFECTED BY SUPPLEMENTAL INDENTURES
	 	 	43	 
	SECTION 10.5 EXECUTION OF SUPPLEMENTAL INDENTURES
	 	 	44	 
	ARTICLE XI            SUCCESSOR ENTITY
	 	 	44	 
	SECTION 11.1 COMPANY OR PARENT MAY CONSOLIDATE, ETC
	 	 	44	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	SECTION 11.2 SUCCESSOR ENTITY SUBSTITUTED
	 	 	45	 
	SECTION 11.3 EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE
	 	 	45	 
	ARTICLE XII            SATISFACTION AND DISCHARGE
	 	 	45	 
	SECTION 12.1 SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	45	 
	SECTION 12.2 APPLICATION OF TRUST MONEY
	 	 	47	 
	ARTICLE XIII            LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	47	 
	SECTION 13.1 APPLICABILITY OF ARTICLE; COMPANY’S OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
	 	 	47	 
	SECTION 13.2 LEGAL DEFEASANCE AND DISCHARGE OF SECURITIES OF ANY SERIES
	 	 	47	 
	SECTION 13.3 COVENANT DEFEASANCE
	 	 	48	 
	SECTION 13.4 CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE
	 	 	48	 
	SECTION 13.5 APPLICATION OF TRUST MONEY
	 	 	50	 
	SECTION 13.6 REPAYMENT TO COMPANY OR PARENT
	 	 	50	 
	ARTICLE XIV            IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	51	 
	SECTION 14.1 NO RECOURSE
	 	 	51	 
	ARTICLE XV            MISCELLANEOUS PROVISIONS
	 	 	51	 
	SECTION 15.1 EFFECT ON SUCCESSORS AND ASSIGNS
	 	 	51	 
	SECTION 15.2 ACTIONS BY SUCCESSOR
	 	 	52	 
	SECTION 15.3 SURRENDER OF COMPANY POWERS
	 	 	52	 
	SECTION 15.4 NOTICES
	 	 	52	 
	SECTION 15.5 GOVERNING LAW
	 	 	52	 
	SECTION 15.6 TREATMENT OF SECURITIES AS DEBT
	 	 	52	 
	SECTION 15.7 COMPLIANCE CERTIFICATES AND OPINIONS
	 	 	52	 
	SECTION 15.8 PAYMENTS ON BUSINESS DAYS
	 	 	53	 
	SECTION 15.9 CONFLICT WITH TRUST INDENTURE ACT
	 	 	53	 
	SECTION 15.10 COUNTERPARTS
	 	 	53	 
	SECTION 15.11 SEPARABILITY
	 	 	53	 






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INDENTURE




     INDENTURE, dated as of                      ___, 20___, among LIONS GATE ENTERTAINMENT INC., a corporation
organized under the laws of the state of Delaware (the “Company”), LIONS GATE ENTERTAINMENT CORP.,
a corporation organized under the laws of the province of British Columbia (Canada) (the “Parent”),
and [                                        ], as trustee (the “Trustee”):



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



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



     WHEREAS, the Parent has duly authorized the execution and delivery of this Indenture to
guarantee the Securities issued by the Company in the manner described in Article III; and



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



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



ARTICLE I

DEFINITIONS




SECTION 1.1 DEFINITIONS OF TERMS.




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



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



1









 





     “Authorized Officer,” when used with respect to the Company or Parent, means the Chairman of
the Board, the chief executive officer, the chief financial officer, the chief legal officer, the
Treasurer, an Assistant Treasurer, the Secretary, an Assistant Secretary and other executive
officers of the Company or Parent.



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



     “Board of Directors” means the Board of Directors of the Company or Parent, as the case may
be, or any duly authorized committee of such Board.



     “Board Resolution” means a copy of one or more resolutions certified by the Secretary or an
Assistant Secretary of the Company or the Parent, as applicable, to have been duly adopted by the
Board of Directors, or such committee of the Board of Directors or officers of the Company or the
Parent, as applicable, to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification, and to be
delivered to the Trustee.



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



     “Commission” means the Securities and Exchange Commission.



     “Company” means Lions Gate Entertainment Inc., a corporation duly organized and existing under
the laws of the State of Delaware and, subject to the provisions of Article XI, shall also include
its successors and assigns.



     “Company Request” and “Company Order” means a written request or order signed in the name of
the Company by one or more Authorized Officers of the Company, and delivered to the Trustee.



     “Corporate Trust Office” means the office of the Trustee at which, at any particular time, its
corporate trust business shall be principally administered.



     “Covenant Defeasance” shall have the meaning set forth in Section 13.3.



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



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



     “Depositary” means, with respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under
the Securities and Exchange Act of 1934, or other applicable statute or



2









 




regulation, which, in each case, shall be designated by the Company pursuant to either Section
2.1 or 2.11.




     “Event of Default” means, with respect to Securities of a particular series, any event
specified in Section 7.1, continued for the period of time, if any, therein designated.



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



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



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



     “Guarantee” has the meaning specified in Section 3.1 hereof.



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



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



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



     “Legal Defeasance” shall have the meaning set forth in Section 13.2.



     “Officer’s Certificate” means a certificate signed by an Authorized Officer of the Company or
Parent, as the case may be, that is delivered to the Trustee in accordance with the terms hereof.
Each such certificate shall include the statements provided for in Section 15.7, if and to the
extent required by the provisions thereof. An Officer’s Certificate given pursuant to



3









 




Section 15.12 shall be signed by the principal financial or accounting officer of the Company
or Parent but need not contain the statements provided for in Section 15.7.




     “Opinion of Counsel” means an opinion in writing subject to customary exceptions of legal
counsel, who may be an employee of or counsel for the Company or Parent, as the case may be, that
is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 15.7, if and to the extent required by the provisions
thereof.



     “Outstanding,” when used with reference to Securities of any series, means, subject to the
provisions of Section 9.4, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any Paying Agent, or delivered to the Trustee or any Paying Agent for
cancellation or that have previously been canceled; (b) Securities or portions thereof for the
payment or redemption of which moneys or Governmental Obligations in the necessary amount shall
have been deposited in trust with the Trustee or with any Paying Agent (other than the Company or
Parent) or shall have been set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) or by the Parent (if the Company appoints the Parent to act as its
Paying Agent); provided, however, that if such Securities or portions of such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have been given as in
Article IV provided, or provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.7, unless the Trustee and the
Company receive proof satisfactory to them that the replaced Security is held by a bona fide
purchaser.



     “Parent” means Lions Gate Entertainment Corp., a corporation duly organized and existing under
the laws of the province of British Columbia, Canada, and subject to the provisions of Article XI,
shall also include its successors and assigns.



     “Parent Request” and “Parent Order” means a written request or order signed in the name of the
Parent by one or more Authorized Officers of the Parent, and delivered to the Trustee.



     “Paying Agent” shall have the meaning set forth in Section 5.2(a).



     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity, and includes any syndicate or group that would be deemed to be a “person” under
Section 13(d)(3) of the Exchange Act.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 2.7 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or
stolen Security.



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



4









 





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



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



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



     “Security Register” shall have the meaning set forth in Section 5.2(a).



     “Security Registrar” shall have the meaning set forth in Section 5.2(a).



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



     “Subsidiary” means, with respect to any Person, (i) any corporation at least a majority of
whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such Person
or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, joint venture or similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such Person, or by one or more of
its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner.



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



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.



     “Trust Officer” means any officer within the Corporate Trust Administration department of the
Trustee (or any successor group of the Trustee) with direct responsibility for the administration
of this Indenture and also means, with respect to a particular corporate trust matter hereunder,
any other officer of the Trustee to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject.



     “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.



     “U.S.” means the United States of America.



     “Voting Stock,” as applied to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the equivalent) of such Person,



5









 




other than shares, interests, participations or other equivalents having such power only by
reason of the occurrence of a contingency.



SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.




     Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.



     All Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture
Act, defined by the Trust Indenture Act reference to another statute or defined by Securities and
Exchange Commission rules have the meanings assigned to them by such definitions.



ARTICLE II

ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION

AND EXCHANGE OF SECURITIES




SECTION 2.1 DESIGNATION AND TERMS OF SECURITIES.




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




     (1) the title of the securities of the series (which shall distinguish the securities
of that series from all other securities);




     (2) any limit upon the aggregate principal amount of the Securities of that series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series);




     (3) the date or dates on which the principal of the Securities of the series is
payable, any original issue discount that may apply to the Securities of that series upon
their issuance, the principal amount due at maturity, and the place(s) of payment;




     (4) the rate or rates at which the Securities of the series shall bear interest or the
manner of calculation of such rate or rates, if any;




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



6









 






     (6) the right, if any, to extend the interest payment periods and the duration of such
extension;




     (7) the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company;




     (8) the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund, mandatory redemption, or analogous provisions
(including payments made in cash in satisfaction of future sinking fund obligations) or at
the option of a holder thereof and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;




     (9) the form of the Securities of the series including the form of the certificate of
authentication for such series;




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




     (11) any and all other terms (including terms, to the extent applicable, relating to
any auction or remarketing of the Securities of that series and any security for the
obligations of the Company with respect to such Securities) with respect to such series
(which terms shall not be inconsistent with the terms of this Indenture, as amended by any
supplemental indenture) including any terms which may be required by or advisable under
United States laws or regulations or advisable in connection with the marketing of
Securities of that series;




     (12) whether the Securities are issuable as a Global Security and, in such case, the
terms and the identity of the Depositary for such series;




     (13) whether the Securities will be convertible into or exchangeable for shares of
common stock or other securities of the Company or Parent or any other Person and, if so,
the terms and conditions upon which such Securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated and
may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option)
conversion or exchange features, and the applicable conversion or exchange period;




     (14) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 7.1;




     (15) any additional or different Events of Default or restrictive covenants (which may
but shall not have to include, among other restrictions, restrictions on the Company’s
ability, the ability of the Company’s Subsidiaries, the Parent’s ability, or the ability of
the Parent’s Subsidiaries to: incur additional indebtedness; issue additional



7









 







securities; create liens; pay dividends or make distributions in respect of their
capital stock; redeem capital stock; make investments or other restricted payments; sell or
otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions
with stockholders and affiliates; issue or sell stock of their Subsidiaries; or effect a
consolidation or merger) or financial covenants (which may include, among other financial
covenants, financial covenants that require the Company, the Parent, or their respective
Subsidiaries to maintain specified interest coverage, fixed charge, cash flow-based or
asset-based ratios) provided for with respect to the Securities of the series;




     (16) if other than dollars, the coin or currency in which the Securities of the series
are denominated (including, but not limited to, foreign currency);




     (17) the terms and conditions, if any, upon which the Company shall pay amounts in
addition to the stated interest, premium, if any and principal amounts of the Securities of
the series to any Securityholder that is not a “United States person” for federal tax
purposes;




     (18) any restrictions on transfer, sale or assignment of the Securities of the series;




     (19) the form and terms of any guarantee of the Securities of the series; and




     (20) any other terms of the series (which shall not be inconsistent with the provisions
of this Indenture, except as permitted by Article X, but which may modify or delete any
provisions of this Indenture insofar as it applies to such series), including any terms
which may be required by or advisable under the laws of the U.S. or regulations thereunder
or advisable (as determined by the Company) in connection with the marketing of Securities
of the series.



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



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



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


SECTION 2.2 FORM OF SECURITIES AND TRUSTEE’S CERTIFICATE.




     The Securities of any series and the Trustee’s certificate of authentication to be borne by
such Securities shall be substantially of the tenor and purport as set forth in one or more



8









 




indentures supplemental hereto or as provided in a Board Resolution of the Company, and set
forth in an Officer’s Certificate of the Company, and they may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed, lithographed or
engraved thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any securities exchange on which
Securities of that series may be listed, or to conform to usage.




     The Securities shall be guaranteed as to payment by the Parent as provided in Article III;
provided that nothing herein shall require the Guarantee to be endorsed on any Security and the
failure to so endorse a Guarantee thereon shall not impair the validity or enforceability of the
Guarantee with respect to any such Security.


SECTION 2.3 DENOMINATIONS; PROVISIONS FOR PAYMENT.




     The Securities shall be issuable as registered Securities and in the denominations of one
thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.1(10). The
Securities of a particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the U.S. that at the time is legal tender for public and private
debt, at the office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Security shall be dated the date of its
authentication. Interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.



     The interest installment on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment. In the event that any
Security of a particular series or portion thereof is called for redemption and the redemption date
is subsequent to a regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 4.3.



     Any interest on any Security that is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by
virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:




     (1) The Company may make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company or the Parent shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Security and the date of the proposed payment, and at the same time



9









 







the Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor
less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the expense of the
Company shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered on such special
record date.




     (2) The Company may make payment of any Defaulted Interest on any Securities in any
other lawful manner not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.



     Unless otherwise set forth in a Board Resolution of the Company or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.1
hereof, the term “regular record date” as used in this Section with respect to a series of
Securities and any Interest Payment Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment Date established for such series
pursuant to Section 2.1 hereof shall occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.1 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.



     Subject to the foregoing provisions of this Section and Sections 2.5 and 2.11, each Security
of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any
other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Security.


SECTION 2.4 EXECUTION AND AUTHENTICATIONS.




     The Securities shall be signed on behalf of the Company by an Authorized Officer and, to the
extent necessary, under its corporate seal. Signatures may be in the form of a manual or facsimile
signature.



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     The Company may use the facsimile signature of any Person who shall have been an Authorized
Officer thereof, notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of, such Person shall have ceased to be such an officer of the Company.
To the extent a Company seal is necessary, the Company seal may be in the form of a facsimile of
such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. The
Securities may contain such notations, legends or endorsements required by law, stock exchange rule
or usage. Each Security shall be dated the date of its authentication by the Trustee.



     A Security shall not be valid until authenticated manually by an authorized signatory of the
Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder and that the holder
is entitled to the benefits of this Indenture. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, signed by an Authorized Officer, and the Trustee in
accordance with such Company Order shall authenticate and deliver such Securities.



     In authenticating such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 8.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of this Indenture.



     The Trustee shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.


SECTION 2.5 REGISTRATION OF TRANSFER AND EXCHANGE.




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



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



          All Securities presented or surrendered for exchange or registration of transfer, as provided
in this Section, shall be accompanied (if so required by the Company or the Security Registrar) by
a written instrument or instruments of transfer, in form satisfactory to the






11









 







Company, the Parent, or the Security Registrar, duly executed by the registered holder or by
such holder’s duly authorized attorney in writing.




     (c) Except as provided pursuant to Section 2.1 pursuant to a Board Resolution of the Company,
and set forth in an Officer’s Certificate of the Company, or established in one or more indentures
supplemental to this Indenture, no service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of partial repurchase or redemption of
any series, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges pursuant to Section 2.6, Section
4.3(b) and Section 10.4 not involving any transfer.



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



     (e) Successive registrations and registrations of transfers and exchanges as aforesaid may be
made from time to time as desired, and each such registration shall be noted on the register for
the Securities.



     (f) The Security Registrar shall provide to the Trustee such information as the Trustee may
reasonably require in connection with the delivery by such Security Registrar of Securities upon
transfer or exchange of Securities.



     (g) The provisions of this Section 2.5 are, with respect to any Global Security, subject to
Section 2.11 hereof.


SECTION 2.6 TEMPORARY SECURITIES.




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



12









 




such series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered hereunder.



SECTION 2.7 MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.




     In case any temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for
the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or
stolen. In every case, the requirements of Section 8-405 of the Uniform Commercial Code shall be
met and the applicant for a substituted Security shall furnish to the Company, the Parent, and the
Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company, the
Parent, and the Trustee evidence to their satisfaction of the destruction, loss or theft of the
applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



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



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


SECTION 2.8 CANCELLATION.




     All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any Paying Agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of the



13









 




provisions of this Indenture. On request of the Company at the time of such surrender, the
Trustee shall cancel Securities held by the Trustee in accordance with its standard procedures and
applicable law and provide confirmation to the Company of such cancellation. In the absence of such
request the Trustee may dispose of canceled Securities in accordance with its standard procedures
and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire any
of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are delivered to the
Trustee for cancellation.



SECTION 2.9 BENEFITS OF INDENTURE.




     Nothing in this Indenture or in the Securities, express or implied, shall give or be construed
to give to any Person, other than the parties hereto and the holders of the Securities any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of the Securities.


SECTION 2.10 AUTHENTICATING AGENT.




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



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




14











 



SECTION 2.11 GLOBAL SECURITIES.


     (a) If the Company shall establish pursuant to Section 2.1 that the Securities of a
particular series are to be issued as a Global Security, then the Company shall execute and the
Trustee shall, in accordance with Section 2.4, authenticate and deliver, a Global Security that (i)
shall represent, and shall be denominated in an amount equal to the aggregate principal amount of,
all of the Outstanding Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to
the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:
“Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred,
in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary.”



     (b) Notwithstanding the provisions of Section 2.5, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.5, only to another
nominee of the Depositary for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary. Nothing in this Section
2.11(b) shall prohibit or render ineffective any transfer of a beneficial interest in a Global
Security effected in accordance with the other provisions of this Indenture.



     (c) If at any time the Depositary for a series of the Securities notifies the Company that it
is unwilling or unable to continue as Depositary for such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, or if an Event of Default has occurred and is continuing and the
Company has received a request from the Depositary, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to Section 2.4, the
Trustee will authenticate and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such Global Security. In
addition, the Company may at any time determine that the Securities of any series shall no longer
be represented by a Global Security and that the provisions of this Section 2.11 shall no longer
apply to the Securities of such series. In such event the Company will execute and, subject to
Section 2.4, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by
the Company, will authenticate and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal amount equal to
the principal amount of the Global Security of such series in exchange for such Global Security.
Upon the exchange of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global Security pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee.
The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.



15









 




SECTION 2.12 CUSIP AND ISIN NUMBERS.




     The Company, in issuing the Securities, shall use CUSIP and ISIN numbers for such Securities
(if then generally in use). The Trustee shall use CUSIP and ISIN numbers in notices of redemption
as a convenience to holders; provided, however, that neither the Company nor the Trustee shall have
any responsibility for any defect in the CUSIP or ISIN number that appears on any Security, check,
advice of payment or redemption notice, and any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities or as contained in
any notice of redemption and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee in the event of any change
in the CUSIP or ISIN numbers.



ARTICLE III

GUARANTEE



SECTION 3.1 GUARANTEE.




     (a) Subject to this Article III, the Parent hereby unconditionally guarantees to each
Securityholder, authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or
the obligations of the Company hereunder or thereunder, that:




     (1) the principal of, premium and liquidated damages, if any, and interest on, the
Securities will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest on the
Securities, if any, if lawful, and all other obligations of the Company to the
Securityholders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and




     (2) in case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



     Failing payment by the Company when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Parent will pay the same immediately. The Parent agrees that
this is a guarantee of payment and not a guarantee of collection.



     (b) The Parent hereby agrees that its obligations hereunder are unconditional, irrespective of
the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or consent by any
Securityholder with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company or the Parent, as applicable, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Parent hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Company, or the Parent, as applicable,
any right to require a proceeding first against the Company or the Parent, as applicable, protest,
notice and all demands



16









 







whatsoever and covenants that this Guarantee will not be discharged except
by complete performance of the obligations contained in the Securities and this Indenture.



     (c) If any Securityholder or the Trustee is required by any court or otherwise to return to
the Company, the Parent or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Parent, any amount paid by either to the Trustee or such
Securityholder, this Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.



     (d) The Parent agrees that it will not be entitled to any right of subrogation in relation to
the Securityholders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. The Parent further agrees that, as between the Parent, on the one
hand, and the Securityholders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article VII hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Parent for the
purpose of this Guarantee.



     (e) The Guarantee shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Company or the Parent, as applicable, for liquidation,
reorganization, should the Company or the Parent, as applicable become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of the Company’s assets, and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Securities or the Guarantee, whether
as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or
performance had not been made. In the event that any payment or ay part thereof, is rescinded,
reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.



     (f) In case any provision of the Guarantee shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


SECTION 3.2 CONSIDERATION.




     The Parent has received, or will receive, direct or indirect benefits from the making of the
Guarantee and the Guarantee and waivers made by it pursuant to the Guarantee are knowingly made in
contemplation of such benefits.


SECTION 3.3 EXECUTION OF GUARANTEE.




     To evidence the Guarantee to the Securityholders set forth in this Article III, the Parent
hereby agrees that a notation of such Guarantee shall be endorsed on each Security ordered to be



17









 







authenticated and delivered by the Trustee. The Parent hereby agrees that the Guarantee set forth
in this Article III shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation of such Guarantee. The Guarantee shall be signed on behalf of the Parent
by one of its Authorized Officers prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee on behalf of the Parent. Such signatures
upon the Guarantee may be by manual or facsimile signature of such officers and may be imprinted or
otherwise reproduced on the Guarantee, and in case any such officer who shall have signed the
Guarantee shall cease to be such officer before the Security on which such Guarantee is endorsed
shall have been authenticated and delivered by the Trustee or disposed of by the Parent, such
Security nevertheless may be authenticated and delivered or disposed of as though the Person who
signed the Guarantee had not ceased to be such officer of the Parent.


SECTION 3.4 SUCCESSOR GUARANTEE.




     In the event that the Parent consolidates with, merges with or into, or sells, conveys,
transfers, leases or otherwise disposes of all or substantially all of its property and assets (in
one transaction or a series of related transactions) to any Person and the Parent is not the
surviving entity, such surviving entity shall expressly assume all of the obligations of the Parent
under this Article III and in accordance with Article XI.


SECTION 3.5 LIMITATION ON PARENT LIABILITY.




     The Parent, and by its acceptance of Securities, each Securityholder, hereby confirms
that it is the intention of all such parties that the Guarantee not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Securityholders and the Parent
hereby irrevocably agree that the obligations of such Parent will be limited to the maximum amount
that will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of the Parent that are relevant under such laws, result in the obligations of the
Parent under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
applicable law.



ARTICLE IV

REDEMPTION OF SECURITIES AND

SINKING FUND PROVISIONS



SECTION 4.1 REDEMPTION.




     The Company may redeem the Securities of any series issued hereunder on and after the dates
and in accordance with the terms established for such series pursuant to Section 2.1 hereof. The
provisions of this Article IV may be modified, amended or replaced, in part or in their entirety,
with Securities of any series, by an Officer’s Certificate of the Company pursuant to a Board
Resolution of the Company or one or more indentures supplemental hereto, in each case in accordance
with Section 2.1 hereof.



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SECTION 4.2 NOTICE OF REDEMPTION.




     (a) In case the Company shall desire to exercise such right to redeem all or, as the case may
be, a portion of the Securities of any series in accordance with any right the Company reserved for
itself to do so pursuant to Section 2.1 hereof, the Company shall, or shall cause the Trustee to,
give notice of such redemption to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid (or, in the case of Securities held in book-entry form, by
electronic transmission), a notice of such redemption not less than 30 days and not more than 90
days (except in accordance with Articles XII and XIII) before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon the Security Register,
unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed in
the manner herein provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give such notice to the
holder of any Security of any series designated for redemption in whole or in part, or any defect
in the notice, shall not affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate
evidencing compliance with any such restriction.



          Each such notice of redemption shall specify the date fixed for redemption and the redemption
price at which Securities of that series are to be redeemed, and shall state that payment of the
redemption price of such Securities to be redeemed will be made at the office or agency of the
Paying Agent or as otherwise established in an indenture supplemental hereto, upon presentation and
surrender of such Securities, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, that from and after said date interest will cease to accrue and that
the redemption is for a sinking fund, if such is the case. If less than all the Securities of a
series are to be redeemed, the notice to the holders of Securities of that series to be redeemed in
part shall specify the particular Securities to be so redeemed.



          In case any Security is to be redeemed in part only, the notice that relates to such Security
shall state the portion of the principal amount thereof to be redeemed, and shall state that on and
after the redemption date, upon surrender of such Security, a new Security or Securities of such
series in principal amount equal to the unredeemed portion thereof will be issued.



     (b) If less than all the Securities of a series are to be redeemed, the Company shall give the
Trustee at least 45 days’ notice in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as it shall deem appropriate and fair in its discretion and
that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars
($1,000) or any integral multiple thereof) of the principal amount of such Securities of a
denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify
the Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The
Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by
an Authorized Officer, instruct the Trustee or any Paying Agent to call all or any part of the
Securities of a particular series for redemption and to give notice of redemption in the manner set
forth in this Section, such notice to be in the name of the Company or its own name as the Trustee
or such Paying Agent may deem advisable. In any case in which notice of



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redemption is to be given
by the Trustee or any such Paying Agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such Paying Agent, as the case may be, such Security
Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such Paying Agent to give any notice by mail that may be required under the
provisions of this Section.


SECTION 4.3 PAYMENT UPON REDEMPTION.




     (a) If the giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on
such Securities or portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption price and accrued
interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the
notice, said Securities shall be paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed for redemption (but if the date
fixed for redemption is an interest payment date, the interest installment payable on such date
shall be payable to the registered holder at the close of business on the applicable record date
pursuant to Section 2.3).



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


SECTION 4.4 SINKING FUND.




     If Securities of a series provide for a sinking fund as contemplated by Section 2.1, the
provisions of Sections 4.4, 4.5 and 4.6 shall be applicable to any sinking fund for the retirement
of Securities of a series, except as otherwise specified as contemplated by Section 2.1 for
Securities of such series.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 4.5.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.


SECTION 4.5 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.




     The Company (i) may deliver Outstanding Securities of a series and (ii) may apply as a credit
Securities of a series that have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted optional sinking



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fund payments
pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series, provided that such
Securities have not been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.


SECTION 4.6 REDEMPTION OF SECURITIES FOR SINKING FUND.




     Not less than 45 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 4.5 and the basis for such credit and will, together with such Officer’s
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 4.2 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 4.2.
Such notice having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 4.3.



ARTICLE V

COVENANTS





	SECTION 5.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.





     The Company will duly and punctually pay or cause to be paid the principal of (and premium, if
any) and interest on the Securities of that series at the time and place and in the manner provided
herein and established with respect to such Securities. Payments of principal on the Securities may
be made at the time provided herein and established with respect to such Securities by U.S. dollar
check drawn on and mailed to the address of the Securityholder entitled thereto as such address
shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account (such
a wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities
of the applicable series in excess of U.S. $2,000,000 and only if such Securityholder shall have
furnished wire instructions to the Trustee no later than 15 days prior to the relevant payment
date). Payments of interest on the Securities may be made at the time provided herein and
established with respect to such Securities by U.S. dollar check mailed to the address of the
Securityholder entitled thereto as such address shall appear in the Security Register, or U.S.
dollar wire transfer to, a U.S. dollar account (such a wire transfer to be made only to a
Securityholder of an aggregate principal amount of Securities of the applicable series in excess of
U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions in writing
to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment
date).



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SECTION 5.2 PAYING AGENT AND SECURITY REGISTRAR.




     (a) So long as any series of the Securities remain Outstanding, the Company shall maintain an
office or agency where Securities may be presented for registration of transfer or for exchange
(“Security Registrar”), an office or agency where Securities may be presented for payment (“Paying
Agent”) and an office or agency where notices to or upon the Company in respect of the Securities
and this Indenture may be served. The Company initially appoints the Trustee as Security Registrar
and Paying Agent in connection with the Securities, and each of the Corporate Trust Office of the
Trustee and the office or agency of the Trustee in the Borough of Manhattan, the City and State of
New York, to be such office or agency of the Company for the aforesaid purposes. The Security
Registrar shall keep a register for the recordation of, and shall record, the names and addresses
of holders of the Securities, the Securities held by each holder and the transfer and exchange of
Securities (the “Security Register”). The entries in the Security Register shall be conclusive, and
the parties may treat each Person whose name is recorded in the Security Register pursuant to the
terms hereof as a holder hereunder for all purposes of this Indenture. The Company may have one or
more co-Security Registrars and one or more additional Paying Agents.



     The Company will maintain in the Borough of Manhattan, the City and State of New York, an
office or agency of the Trustee, Security Registrar and Paying Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for registration of
transfer, exchange, repurchase or redemption and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and of any change in the location, of any such
office or agency (other than a change in the location of the Corporate Trust Office of the
Trustee). 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 15.4.



     (b) The Company shall enter into an appropriate agency agreement with any Security Registrar,
Paying Agent, or co-registrar not a party to this Indenture, which shall incorporate the terms of
the Trust Indenture Act. The agreement shall implement the provisions of this Indenture that relate
to such agent. The Company shall notify the Trustee of the name and address of any such agent. If
the Company fails to maintain a Security Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor. The Company, the Parent, and any of
their Subsidiaries may act as Paying Agent, Security Registrar or co-registrar.



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




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



22









 






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




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




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



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



     (e) Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums
in trust as provided in this Section is subject to the provisions of Section 13.6, and (ii) the
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms and conditions as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by the Company or any Paying Agent to the Trustee, the Company or
such Paying Agent, as applicable, shall be released from all further liability with respect to such
money.


SECTION 5.3 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.




     The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 8.10, a Trustee, so that there shall at all times be a
Trustee hereunder.


SECTION 5.4 COMPLIANCE WITH CONSOLIDATION PROVISIONS.




     The Company will not, while any of the Securities remain Outstanding, consolidate with or
merge into any other Person, in either case where the Company is not the survivor of such
transaction, or sell or convey all or substantially all of its property to any other Person unless
the provisions of Article XI hereof are complied with.



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     The Parent will not, while any of the Securities remain Outstanding, consolidate with or merge
into any other Person, in either case where the Parent is not the survivor of such transaction, or
sell or convey all or substantially all of its property to any other Person unless the provisions
of Article XI and Section 3.4 hereof are complied with.



ARTICLE VI

SECURITYHOLDERS’ LISTS AND REPORTS BY

THE COMPANY, THE PARENT AND THE TRUSTEE



SECTION 6.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF SECURITYHOLDERS.




     The Company will furnish or cause to be furnished to the Trustee (a) on each regular record
date (as defined in Section 2.3) a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may request in writing within 30
days after the receipt by the Company of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished; provided, however, that, in
either case, no such list need be furnished for any series for which the Trustee shall be the
Security Registrar.


SECTION 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) The Trustee may destroy any list furnished to it as provided in Section 6.1 upon receipt
of a new list so furnished.



     (c) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act
with other Securityholders with respect to their rights under this Indenture or under the
Securities, and, in connection with any such communications, the Trustee shall satisfy its
obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of
Section 312(b) of the Trust Indenture Act.



     (d) Every holder of Securities, by receiving and holding the same, agrees with the Company,
the Parent, and the Trustee that neither the Company, the Parent, nor the Trustee nor any agent of
any of them shall be held accountable by reason of any disclosure of information as to the names
and addresses of holders made pursuant to the Trust Indenture Act.



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SECTION 6.3 REPORTS BY THE COMPANY OR THE PARENT.




     (a) So long as any Security is Outstanding, the Company or the Parent shall furnish a copy to
the Trustee, within 15 days after the Company or the Parent files the same with the Commission,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the Company or the Parent
may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act.



     (b) In the event that the Company or the Parent is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall continue to provide the
Trustee with annual and quarterly reports containing substantially the same information as would
have been required to be filed with the Commission had the Company or the Parent continued to have
been subject to such reporting requirements. In such event, such annual and quarterly reports
shall be provided at the times the Company or the Parent would have been required to provide
reports had it continued to have been subject to such reporting requirements.


SECTION 6.4 REPORTS BY THE TRUSTEE.




     (a) The Trustee shall transmit to the Securityholders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the time
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).



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



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



ARTICLE VII

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT



SECTION 7.1 EVENTS OF DEFAULT.




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




     (1) the Company defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 30 days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of any



25









 







indenture
supplemental hereto shall not constitute a default in the payment of interest for this
purpose;




     (2) the Company defaults in the payment of the principal of (or premium, if any, on)
any of the Securities of that series as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment
required by any sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such Securities in accordance
with the terms of any indenture supplemental hereto shall not constitute a default in the
payment of principal or premium, if any;




     (3) the Company or the Parent fails to observe or perform any other of their
respective covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.1
hereof (other than a covenant or agreement that has been expressly included in this
Indenture solely for the benefit of one or more series of Securities other than such
series) or the related Guarantee for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating that such notice is a
“Notice of Default” hereunder, shall have been given to the Company or the Parent, as
applicable, by the Trustee, by registered or certified mail, or to the Company, the Parent,
and the Trustee by the holders of at least 25% in principal amount of the Securities of
that series at the time Outstanding;




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




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



     (b) In each and every such case (other than an Event of Default specified in clause (4) or
clause (5) above), unless the principal of all the Securities of that series shall have already
become due and payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of that series then Outstanding hereunder, by notice in writing
to the Company and the Parent (and to the Trustee if given by such Securityholders), may declare
the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities of
that series to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default specified in clause (4) or clause
(5) above occurs, the principal of and accrued and unpaid interest on all the Securities of that
series shall automatically be immediately due and payable without any declaration or other act on
the part of the Trustee or the holders of the Securities.



26









 





     (c) At any time after the principal of (and premium, if any, on) and accrued and unpaid
interest on the Securities of that series shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of
that series then Outstanding hereunder, by written notice to the Company, the Parent, and the
Trustee, may rescind and annul such declaration and its consequences if: (i) the Company or the
Parent has paid or deposited with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal of (and premium, if any, on) any
and all Securities of that series that shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the rate per annum
expressed in the Securities of that series to the date of such payment or deposit) and the amount
payable to the Trustee under Section 8.6, and (ii) any and all Events of Default under the
Indenture with respect to such series, other than the nonpayment of principal on (and premium, if
any, on) and accrued and unpaid interest on Securities of that series that shall not have become
due by their terms, shall have been remedied or waived as provided in Section 7.6.



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



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


SECTION 7.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.




     (a) Each of the Company and the Parent covenants that (i) in case default is made in the
payment of any installment of interest on any of the Securities of a series, and such default shall
have continued for a period of 90 Business Days, or (ii) in case default is made in the payment of
the principal of (or premium, if any, on) any of the Securities of a series when the same shall
have become due and payable, whether upon maturity of the Securities of a series or upon redemption
or upon declaration or otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series as and when the same shall have become due and payable,
then, upon demand of the Trustee, the Company or the Parent will pay to the Trustee, for the
benefit of the holders of the Securities of that series, the whole amount that then shall have been
become due and payable on all such Securities for principal (and premium, if any) or interest, or
both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under
applicable law) upon overdue installments of interest at the rate per annum expressed in the
Securities of that series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount payable to the Trustee under Section
8.6.



27









 





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



     (c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the Company or the Parent,
or its creditors or property, the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company or the Parent under the
Indenture at the date of institution of such proceedings and for any additional amount that may
become due and payable by the Company or the Parent after such date, and to collect and receive any
moneys or other property payable or deliverable on any such claim, and to distribute the same after
the deduction of the amount payable to the Trustee under Section 8.6; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities
of such series to make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Securityholders, to pay to the Trustee any
amount due it under Section 8.6.



     (d) All rights of action and of asserting claims under this Indenture, or under any of the
terms established with respect to Securities of that series, may be enforced by the Trustee without
the possession of any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under Section 8.6, be for the ratable
benefit of the holders of the Securities of such series.



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



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



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SECTION 7.3 APPLICATION OF MONEYS COLLECTED.




     Any moneys collected by the Trustee pursuant to this Article VII with respect to a particular
series of Securities 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 premium, if
any) or interest, upon presentation of the Securities of that series, and notation thereon of the
payment, if only partially paid, and upon surrender thereof if fully paid:



     FIRST: To the payment of reasonable costs and expenses of collection and of all amounts
payable to the Trustee under Section 8.6;



     SECOND: To the payment to holders of Securities of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any), amounts payable upon redemption or
repurchase of the Securities, and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if any) and interest,
respectively; and



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



     The Trustee may fix a record date and payment date for any payment to holders pursuant to this
Section 7.3. At least 15 days before such record date, the Company or the Parent shall mail to
each holder and the Trustee a notice that states the record date, the payment date and the amount
to be paid.


SECTION 7.4 LIMITATION ON SUITS.




     No holder of any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or
under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name
as Trustee hereunder; (iii) such holder or holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such action, suit or proceeding and (v)
during such 90 day period, the holders of a majority in principal amount of the Securities of that
series do not give the Trustee a direction inconsistent with the request.



     Notwithstanding anything contained herein to the contrary or any other provisions of this
Indenture, the right of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such respective dates or



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redemption date, shall not be impaired or affected without the consent of such holder and by
accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all holders
of Securities of such series. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.


SECTION 7.5 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER.




     (a) Except as otherwise provided in Section 2.7, all powers and remedies given by this Article
VII to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or otherwise established
with respect to such Securities.



     (b) No delay or omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 7.4, every power and remedy given
by this Article VII or by law to the Trustee or the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.


SECTION 7.6 CONTROL BY SECURITYHOLDERS.




     The holders of a majority in aggregate principal amount of the Securities of any series at the
time Outstanding, determined in accordance with Section 9.4, shall have the
right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to
such series; provided, however, that such direction shall not be in conflict with any rule of law
or with this Indenture. Subject to the provisions of Section 8.1, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good faith shall, by a Trust Officer or
officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s duties
under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly
prejudicial to the Securityholders not involved in the proceeding. The holders of a majority in
aggregate principal amount of the Securities of any series at the time Outstanding affected
thereby, determined in accordance with Section 9.4, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.1 with respect to such series and its
consequences, except a default in the payment of the principal of, or premium, if any, or interest
on, any of the Securities



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of that series as and when the same shall become due by the terms of such
Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 7.1(c)). Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company, the Parent, the
Trustee and the holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.


SECTION 7.7 UNDERTAKING TO PAY COSTS.




     All parties to this Indenture agree, and each holder of any Securities by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security of such series, on or after
the respective due dates expressed in such Security or established pursuant to this Indenture.



ARTICLE VIII

CONCERNING THE TRUSTEE



SECTION 8.1 CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE.




     (a) The Trustee, prior to the occurrence of an Event of Default with respect to the Securities
of a series and after the curing of all Events of Default with respect to the Securities of that
series that may have occurred, shall undertake to perform with respect to the Securities of such
series such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee. In case an Event of
Default with respect to the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that series such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs.



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



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




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




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




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




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




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


SECTION 8.2 CERTAIN RIGHTS OF TRUSTEE.




     Except as otherwise provided in Section 8.1:



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



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     (b) Any request, direction, order or demand of the Company or the Parent mentioned herein
shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company or the Parent, as applicable, by any authorized officer of the Company or the Parent, as
applicable, (unless other evidence in respect thereof is specifically prescribed herein);



     (c) 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
or suffered or omitted hereunder in good faith and in reliance thereon;



     (d) 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 Securityholders pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to a series of the Securities (that has not
been cured or waived), to exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs;



     (e) The Trustee shall not be liable for any action taken or omitted to be taken by it in good
faith and believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;



     (f) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security, or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the Outstanding Securities of the
particular series affected thereby (determined as provided in Section 9.4); provided, however, 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 costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every such examination shall be paid by the
Company or the Parent or, if paid by the Trustee, shall be repaid by the Company or the Parent upon
demand; and



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



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SECTION 8.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR SECURITIES.




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



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



     (c) The Trustee shall not be accountable for the use or application by the Company or the
Parent of any of the Securities or of the proceeds of such Securities, or for the use or
application of any moneys paid over by the Trustee in accordance with any provision of this
Indenture or established pursuant to Section 2.1, or for the use or application of any moneys
received by any Paying Agent other than the Trustee.


SECTION 8.4 MAY HOLD SECURITIES.




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


SECTION 8.5 MONEYS HELD IN TRUST.




     Subject to the provisions of Sections 12.2, 13.5 and 13.6, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on
any moneys received by it hereunder except such as it may agree with the Company and the
Parent to pay thereon.


SECTION 8.6 COMPENSATION AND REIMBURSEMENT.




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




34












 





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



SECTION 8.7 RELIANCE ON OFFICER’S CERTIFICATE.




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



SECTION 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, the Company and the Parent (shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.



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 U.S. 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 (or, in the case of a subsidiary of a bank holding company, its bank holding
company parent shall have) a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state, territorial, or
District of Columbia authority.



     If such corporation or other Person publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. The Company and the Parent may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the Company or the Parent, as
applicable, serve as Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.10.



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SECTION 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.




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



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




     (i) the Trustee shall fail to comply with the provisions of Section 8.8 after written
request therefor by the Company, the Parent, or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 8.9 and shall fail to resign after written request therefor by the Company, the
Parent, or by any such Securityholder; or




     (iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;



     then, in any such case, the Company may remove the Trustee with respect to all Securities and
appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.



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



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     (d) Any resignation or removal of the Trustee and appointment of a successor trustee with
respect to the Securities of a series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as provided in Section
8.11.



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



SECTION 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.




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



     (b) In case of the appointment hereunder of a successor trustee with respect to the Securities
of one or more (but not all) series, the Company, the Parent, 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 (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor trustee relates, (ii) 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 (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee shall with respect to
the Securities of that or those series to which the appointment of such successor trustee relates
have no further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company



37









 




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




     (c) Upon request of any such successor trustee, the Company and the Parent shall execute any
and all instruments for more fully and certainly vesting in and confirming to such successor
trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.



     (d) No successor trustee shall accept its appointment unless at the time of such acceptance
such successor trustee shall be qualified and eligible under this Article VIII.



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



SECTION 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.




     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including the administration of the trust created by this
Indenture), shall be the successor of the Trustee hereunder, provided that such corporation shall
be qualified under the provisions of Section 8.8 and eligible under the provisions of Section 8.9,
without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.



SECTION 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.




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



SECTION 8.14 NOTICE OF DEFAULT.




     If any Default or any Event of Default occurs and is continuing and if such Default or Event
of Default is known to a Trust Officer of the Trustee, the Trustee shall mail to each



38









 




Securityholder in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act notice of the Default or Event of Default within 45 days after it occurs, unless such
Default or Event of Default has been cured; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Trust Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the Securityholders.




SECTION 8.15 MAINTENANCE OF OFFICE IN THE CITY OF NEW YORK




     The Trustee agrees to maintain in the Borough of Manhattan, City of New York an office or
agency for purposes and notices other than related to demands to or upon the Company in respect of
payment on or registration of transfer, exchange, repurchase, redemption or conversion of the
Securities. Such office shall initially be the office of the Trustee at [_________________],
Attention: [Corporate Trust Administration].



ARTICLE IX

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



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SECTION 9.2 PROOF OF EXECUTION BY SECURITYHOLDERS.




     Subject to the provisions of Section 8.1, 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.



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



SECTION 9.3 WHO MAY BE DEEMED OWNERS.




     Prior to the due presentment for registration of transfer of any Security, the Company, the
Parent, the Trustee, any Paying Agent and any Security Registrar may deem and treat the Person in
whose name such Security shall be registered upon the books of the Security Registrar as the
absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the Security Registrar) for
the purpose of receiving payment of or on account of the principal of, premium, if any, and
(subject to Section 2.3) interest on such Security and for all other purposes; and neither the
Company, the Parent, nor the Trustee nor any Paying Agent nor any Security Registrar shall be
affected by any notice to the contrary.



SECTION 9.4 CERTAIN SECURITIES OWNED BY COMPANY OR PARENT DISREGARDED.




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



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SECTION 9.5 ACTIONS BINDING ON FUTURE SECURITYHOLDERS.




     At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
9.1, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in Section 9.2, revoke such
action so far as concerns such Security. Except as aforesaid any such action taken by the holder of
any Security shall be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor, on registration of
transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto
is made upon such Security. Any action taken by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the Parent, the Trustee
and the holders of all the Securities of that series.



ARTICLE X

SUPPLEMENTAL INDENTURES




SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF SECURITYHOLDERS.




     In addition to any supplemental indenture otherwise authorized by this Indenture, the Company,
the Parent, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall comply with the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for one or more of the following
purposes:



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



     (b) to comply with Article XI, including to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company herein and in the
Securities contained;



     (c) to comply with Article III, including to evidence the succession of another Person to the
Parent and the assumption by any such successor of the Guarantee herein and in the Securities
involved;



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



     (e) to add to the covenants, restrictions, conditions or provisions relating to the Company or
the Parent for the benefit of the holders of all or any series of Securities (and if such
covenants, restrictions, conditions or provisions are to be for the benefit of less than all series
of Securities, stating that such covenants, restrictions, conditions or provisions are expressly
being included solely for the benefit of such series), to make the occurrence, or the occurrence
and the continuance, of a default in any such additional covenants, restrictions, conditions or
provisions



41









 




an Event of Default, or to surrender any right or power herein conferred upon the Company or
the Parent;




     (f) to add any additional Events of Default;



     (g) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities; provided, however, that any such addition, change or elimination not
otherwise permitted under this Section 10.1 shall (i) neither (A) apply to any Security of any
series created prior to the execution of such supplemental indenture and entitled to the benefit of
such provision nor (B) modify the rights of the Securityholder of any such Security with respect to
such provision or (ii) become effective only when there is no such Security outstanding;



     (h) to provide for the issuance of and establish the form and terms and conditions of the
Securities of any series as provided in Section 2.1, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to
add to the rights of the holders of any series of Securities;



     (i) to evidence and provide for the acceptance of appointment hereunder by a successor
trustee;



     (j) to comply with any requirements of the Commission or any successor in connection with the
qualification of this Indenture under the Trust Indenture Act;



     (k) to make any other provisions with respect to matters or questions arising under this
Indenture, provided that such action shall not adversely affect the interests of the
Securityholders of Securities of any series or any related coupons in any material respect; or



     (l) to provide security for or guarantees of the Securities of any series.



     The Trustee is hereby authorized to join with the Company and the Parent in the execution of
any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such
supplemental indenture that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



     Any supplemental indenture authorized by the provisions of this Section may be executed by the
Company, the Parent, and the Trustee without the consent of the holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 10.2.



SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.




     With the consent (evidenced as provided in Section 9.1) of the holders of not less than a
majority in aggregate principal amount of the Securities of each series affected by such
supplemental indenture or indentures at the time Outstanding, the Company and the Parent, when
authorized by a Board Resolution of the Company and a Board Resolution of the Parent, as
applicable, and the Trustee may from time to time and at any time enter into an indenture or



42









 




indentures supplemental hereto (which shall comply with the provisions of the Trust Indenture
Act as then in effect) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner not covered by Section 10.1 the rights of the holders of the Securities of
such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and affected thereby,




     (a) reduce the aforesaid percentage of Securities, the holders of which are required to
consent to any amendment, supplement or waiver;



     (b) reduce the rate of interest or extend the time for payment of interest on such Securities
or reduce any premium payable upon the redemption thereof;



     (c) reduce the principal amount of such Securities;



     (d) extend the fixed maturity of such Securities; or



     (e) reduce the redemption or repurchase price of such Securities or change the time at which
the Securities may or must be redeemed or repurchased.



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



SECTION 10.3 EFFECT OF SUPPLEMENTAL INDENTURES.




     Upon the execution of any supplemental indenture pursuant to the provisions of this Article X
or of Section 11.1, this Indenture shall, with respect to such series, be and be deemed to be
modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company, the Parent,
and the holders of Securities of the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.



SECTION 10.4 SECURITIES AFFECTED BY SUPPLEMENTAL INDENTURES.




     Securities of any series affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions of this Article X or
of Section 11.1, may bear a notation in form approved by the Company, provided such form meets the
requirements of any securities exchange upon which such series may be listed, as to any matter
provided for in such supplemental indenture. If the Company shall so determine, new Securities of
that series so modified as to conform, in the opinion of the Board of Directors of the Company, to
any modification of this Indenture contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered in exchange for the Securities of that
series then Outstanding.



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SECTION 10.5 EXECUTION OF SUPPLEMENTAL INDENTURES.




     Upon the request of the Company, accompanied by its Board Resolutions authorizing the
execution of any such supplemental indenture, and the Parent’s Board Resolutions authorizing the
Guarantee of Securities issued under any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company and the Parent in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of
Section 8.1, may receive an Officer’s Certificate or an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article X is authorized or permitted by,
and conforms to, the terms of this Article X and that it is proper for the Trustee under the
provisions of this Article X to join in the execution thereof; provided, however, that such
Officer’s Certificate or Opinion of Counsel need not be provided in connection with the execution
of a supplemental indenture that establishes the terms of a series of Securities pursuant to
Section 2.1 hereof.



     Promptly after the execution by the Company, the Parent, and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.



ARTICLE XI

SUCCESSOR ENTITY




SECTION 11.1 COMPANY OR PARENT MAY CONSOLIDATE, ETC.




     Except as provided pursuant to Section 2.1 pursuant to a Board Resolution, and set forth in an
Officer’s Certificate, or established in one or more indentures supplemental to this Indenture,
nothing contained in this Indenture shall prevent any consolidation or merger of the Company or the
Parent with or into any other Person (whether or not affiliated with the Company or the Parent), or
successive consolidations or mergers in which the Company, the Parent, or either entity’s successor
or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company, the Parent, or either entity’s successor or successors
as an entirety, or substantially as an entirety, to any other corporation (whether or not
affiliated with the Company, the Parent or either entity’s successor or successors) authorized to
acquire and operate the same; provided, however, each of the Company and the Parent hereby
covenants and agrees that, upon any such consolidation or merger (in each case, if the Company or
the Parent, as applicable, is not the survivor of such transaction), sale, conveyance, transfer or
other disposition, (a) the due and punctual payment of the principal of (premium, if any) and
interest on all of the Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance of all the covenants
and conditions of this Indenture with respect to each series or established with respect to such
series pursuant to Section 2.1 to be kept or performed by the Company or the Parent shall be
expressly assumed, by supplemental indenture (which shall



44









 




conform to the provisions of the Trust Indenture Act, as then in effect) reasonably
satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by
such consolidation, or into which the Company or the Parent shall have been merged, or by the
entity which shall have acquired such property and (b) in the event that the Securities of any
series then Outstanding are convertible into or exchangeable for shares of common stock or other
securities of the Company or the Parent, such entity shall, by such supplemental indenture, make
provision so that the Securityholders of Securities of that series shall thereafter be entitled to
receive upon conversion or exchange of such Securities the number of securities or property to
which a holder of the number of shares of common stock or other securities of the Company or the
Parent, as applicable, deliverable upon conversion or exchange of those Securities would have been
entitled had such conversion or exchange occurred immediately prior to such consolidation, merger,
sale, conveyance, transfer or other disposition.




SECTION 11.2 SUCCESSOR ENTITY SUBSTITUTED.




     (a) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
and upon the assumption by the successor entity by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section
11.1 on all of the Securities of all series Outstanding, such successor entity shall succeed to and
be substituted for the Company or the Parent, as applicable, with the same effect as if it had been
named as the Company or the Parent herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.



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



     (c) Nothing contained in this Article XI shall require any action by the Company or the Parent
in the case of a consolidation or merger of any Person into the Company or the Parent where the
Company or the Parent, as applicable, is the survivor of such transaction, or the acquisition by
the Company or the Parent, by purchase or otherwise, of all or any part of the property of any
other Person (whether or not affiliated with the Company or the Parent).



SECTION 11.3 EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.




     The Trustee, subject to the provisions of Section 8.1, may receive an Officer’s Certificate or
an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the provisions of this Article
XI.



ARTICLE XII

SATISFACTION AND DISCHARGE




SECTION 12.1 SATISFACTION AND DISCHARGE OF INDENTURE.




     This Indenture shall upon Company Request cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of registration of transfer or exchange



45









 




of Securities of such series herein expressly provided for or in the form of Security for such
series and any right to receive additional amounts), and the Trustee, at the expense of the Company
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when




     (a) either




     (i) all Securities of such series theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.7 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company or the Parent and
thereafter repaid to the Company or the Parent or discharged from such trust, as provided in
Sections 13.5 and 13.6) have been delivered to the Trustee for cancellation; or




     (ii) all such Securities of such series not theretofore delivered to the Trustee for
cancellation




     (A) have become due and payable, or




     (B) will become due and payable at their Stated Maturity within one year of the
date of deposit, or




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




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



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



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



     Notwithstanding the satisfaction and discharge of this Indenture with respect to such series,
the obligations of the Company and the Parent to the Trustee with respect to such series under this
Section 12.1 and Sections 8.6 and 8.10, the obligations of the Company and the Parent to any
Authenticating Agent under Section 2.10, and, if money shall have been deposited with the Trustee
pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Trustee under
Section 12.2, shall survive.



46









 





SECTION 12.2 APPLICATION OF TRUST MONEY.




     Subject to the provisions of Section 13.6, all money deposited with the Trustee pursuant to
Section 12.1 shall be held in trust and applied by the Trustee, in accordance with the provisions
of the series of Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company, the Parent, or any of their Subsidiaries acting as Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of all sums due and to become
due thereon in respect of the principal of (and premium, if any) and interest, if any, on the
Securities for which payment of such money has been deposited with the Trustee.



     If the Trustee is unable to apply any money in accordance with Section 12.1 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, then the Company’s obligations
and the Parent’s obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 12.1 until such time
as the Trustee is permitted to apply all such money in accordance with this Section 12.2; provided,
however, that if the Company or the Parent makes any payment of principal of (and premium, if any)
or interest on any Security following the reinstatement of its obligations, the Company or the
Parent, as the case may be, shall be subrogated to the rights of the holders of the Securities of
such series to receive such payment from the money held by the Trustee.



ARTICLE XIII

LEGAL DEFEASANCE AND COVENANT DEFEASANCE



			
	SECTION 13.1	 	APPLICABILITY OF ARTICLE; COMPANY’S OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.







     If pursuant to Section 2.1, provision is made for either or both of (a) legal defeasance of
the Securities of a series under Section 13.2 or (b) covenant defeasance of the Securities of a
series under Section 13.3, then the provisions of such Sections, as the case may be, together with
the other provisions of this Article XIII, shall be applicable to the Securities of such series,
and the Company may at its option by Board Resolution, at any time, with respect to the Securities
of such series, elect to have either Section 13.2 (if applicable) or Section 13.3 (if applicable)
be applied to the Outstanding Securities of such series upon compliance with the applicable
conditions set forth below in this Article XIII.



SECTION 13.2 LEGAL DEFEASANCE AND DISCHARGE OF SECURITIES OF ANY SERIES.




     If this Section 13.2 is specified to be applicable to the Securities of any series, then,
notwithstanding the provisions of Section 12.1, each of the Company and the Parent shall be deemed
to have paid and discharged the entire indebtedness on all the Outstanding Securities and the
related Guarantee of any such series on the 91st day after the date of the deposit referred to in
Section 13.4(a) hereof, and the provisions of this Indenture, as it relates to such Outstanding
Securities and related Guarantee, shall no longer be in effect (“Legal Defeasance”) (and the
Trustee, at the expense of the Company or the Parent, shall, upon Company Request or Parent Request
execute proper instruments acknowledging the same), except as to:



47









 





     (a) the rights of holders of Securities of such series to receive, from the trust funds
described in Section 13.4(a) hereof, (i) payment of the principal of (and premium, if any) and each
installment of principal of (and premium, if any) or interest, if any, on the Outstanding
Securities of such series on the Stated Maturity of such principal or installment of principal or
interest and (ii) 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 this Indenture and such Securities;



     (b) the rights, powers, trusts, duties and immunities of the Trustee hereunder with respect to
such series, including those set forth in Sections 8.6 and 8.10 and this Article XIII; and



     (c) each of the Company’s and the Parent’s obligations with respect to the Securities of such
series under Sections 2.5, 2.6, 2.7 and 5.2 and this Article XIII.



SECTION 13.3 COVENANT DEFEASANCE




     Upon the Company’s exercise of the option provided in Section 13.1 to obtain a covenant
defeasance with respect to the Outstanding Securities of a particular series, each of the Company
and the Parent shall be released from its obligations under Section 6.3 and Article XI and any
additional covenants specified in any indenture supplemental hereto with respect to the Outstanding
Securities and the related Guarantee of such series on and after the date the applicable conditions
set forth in Section 13.4 are satisfied (“Covenant Defeasance”). Covenant Defeasance shall mean
that, with respect to the Outstanding Securities and the related Guarantee of such series, the
Company and the Parent, if applicable, may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in Section 6.3 or Article XI and any
additional covenants specified in any indenture supplemental hereto, whether directly or indirectly
by reason of any reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any other document,
and such omission to comply shall not constitute an Event of Default under Section 7.1(a)(3) with
respect to Outstanding Securities and the related Guarantee of such series, and the remainder of
this Indenture and of the Securities of such series shall be unaffected thereby.



SECTION 13.4 CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE




     The following shall be conditions to Legal Defeasance under Section 13.2 and Covenant
Defeasance under Section 13.3 with respect to the Outstanding Securities and the related Guarantee
of a particular series:



     (a) the Company or the Parent shall have irrevocably deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of Section 8.9) as trust funds in trust
specifically pledged as security for, and dedicated solely to, the benefit of the Securityholders
of the Securities of that series, (i) cash in an amount, (ii) Governmental Obligations which
through the payment of interest and principal in respect thereof in accordance with their terms
will provide not later than one Business Day before the due date of any payment



48









 




referred to in clause (A) or (B) of this subparagraph (a) money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge (A) the principal of (and premium, if any) and each installment of principal
of (and premium, if any) and interest, if any, on the Outstanding Securities of such series on the
Stated Maturity of such principal or installment of principal or interest or on the applicable
Redemption Date and (B) 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 this Indenture and of such Securities;




     (b) such deposit shall not cause the Trustee with respect to the Securities of such series to
have a conflicting interest as defined in Section 8.8 or for purposes of the Trust Indenture Act
with respect to the Securities of any series;



     (c) such deposit will not result in a breach or violation of, or constitute a default under,
any applicable laws, this Indenture or any other agreement or instrument to which the Company or
the Parent, as the case may be, is a party or by which it is bound;



     (d) if Section 13.2 or 13.3 is specified, as contemplated by Section 2.1, to be applicable to
the Securities of any series, such provision would not cause any Outstanding Securities of such
series then listed on the New York Stock Exchange or other nationally recognized securities
exchange to be de-listed as a result thereof;



     (e) in the case of an election with respect to Section 13.2, the Company or the Parent shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the Company or the Parent has
received from the Internal Revenue Service a private letter ruling or there has been published by
the Internal Revenue Service a revenue ruling pertaining to a comparable form of transaction, or
(y) since the date of this Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the holders of the Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;



     (f) in the case of an election with respect to Section 13.3, the Company or the Parent shall
have delivered to the Trustee an Opinion of Counsel to the effect that the holders of the
Outstanding Securities of such series will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;



     (g) such Legal Defeasance or Covenant Defeasance shall be effected in compliance with any
additional terms, conditions or limitations which may be imposed on the Company or the Parent in
connection therewith pursuant to Section 2.1;



     (h) no Event of Default or event which with the giving of notice or lapse of time or both
would become an Event of Default with respect to the Securities of such series shall have



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occurred and be continuing on the date of such deposit or at any time during the period ending
on the 91st day after such date; and




     (i) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to either the Legal Defeasance under
Section 13.2 or the Covenant Defeasance under Section 13.3, as the case may be, have been complied
with.



SECTION 13.5 APPLICATION OF TRUST MONEY.




     Subject to the provisions of Section 13.6, all money and Governmental Obligations (including
the proceeds thereof) deposited with the Trustee pursuant to Section 13.4 in respect of the
Outstanding Securities of a particular series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company, the Parent, or any of their
Subsidiaries acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
for the payment, repurchase or redemption of Securities for which such money or Governmental
Obligations have been deposited with the Trustee.



     If the Trustee is unable to apply any money or Governmental Obligations in accordance with
Section 13.4 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, then
each of the Company’s and the Parent’s obligations under this Indenture and the Securities of such
series shall be revived and reinstated as though no deposit had occurred pursuant to Section 13.4
until such time as the Trustee is permitted to apply all such money in accordance with this Section
13.5; provided, however, that if the Company or the Parent makes any payment of principal of (and
premium, if any) or interest on any Security following the reinstatement of its obligations, the
Company or the Parent, as the case may be, shall be subrogated to the rights of the holders of the
Securities of such series to receive such payment from the money or Governmental Obligations held
by the Trustee.



     Anything in this Article XIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company or the Parent from time to time upon Company Request or Parent Request, as the
case may be, any money or Governmental Obligations held by it as provided in Section 13.4(a) 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 for the purpose for which such money or Governmental
Obligations were deposited.



SECTION 13.6 REPAYMENT TO COMPANY OR PARENT.




     Any moneys or Governmental Obligations deposited with any Paying Agent or the Trustee, or then
held by the Company or the Parent, in trust for payment of principal of or premium, if any, or
interest on the Securities of a particular series that are not applied but remain unclaimed by the
holders of such Securities for two years after the date upon which the principal of (and premium,
if any) or interest on such Securities shall have respectively become due and payable, or such
other shorter period set forth in applicable escheat or abandoned or unclaimed



50









 




property law, shall be repaid to the Company or the Parent on May 31 of each year or upon the
Company’s request (if then held by the Company) or the Parent’s request (if then held by the
Parent) shall be discharged from such trust; and thereupon the Paying Agent and the Trustee shall
be released from all further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall thereafter, as a general
creditor, look only to the Company or the Parent, as the case may be, for the payment thereof.




ARTICLE XIV

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS




SECTION 14.1 NO RECOURSE.




     No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as such, of the Company,
the Parent, or of any predecessor or successor corporation, either directly or through the Company
or Parent or any such predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of the Company or
Parent or of any predecessor or successor corporation, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied therefrom; and that
any and all such personal liability of every name and nature, either at common law or in equity or
by constitution or statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the
issuance of such Securities.



ARTICLE XV

MISCELLANEOUS PROVISIONS




SECTION 15.1 EFFECT ON SUCCESSORS AND ASSIGNS.




     All the covenants, stipulations, promises and agreements in this Indenture made by or on
behalf of the Company shall bind its successors and assigns, whether so expressed or not. All the
covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the
Parent shall bind its successors and assigns, whether so expressed or not. All the covenants,
stipulations, promises and agreements in this Indenture made by or on behalf of the Trustee shall
bind its successors and assigns, whether so expressed or not.



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SECTION 15.2 ACTIONS BY SUCCESSOR.




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



SECTION 15.3 SURRENDER OF COMPANY POWERS.




     The Company or the Parent by instrument in writing executed by authority of its respective
Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the
Company or the Parent, as applicable, and thereupon such power so surrendered shall terminate both
as to the Company or the Parent, as applicable, and as to any respective successor corporation.



SECTION 15.4 NOTICES.




     Except as otherwise expressly provided herein, any notice, request or demand that by any
provision of this Indenture is required or permitted to be given, made or served by the Trustee or
by the Securityholders or by any other Person pursuant to this Indenture to or on the Company or
the Parent may be given or served by being deposited in first class mail, postage prepaid,
addressed (until another address is filed in writing by the Company or the Parent with the
Trustee), as follows: (i) Lions Gate Entertainment Inc., 2700 Colorado Avenue, Suite 200, Santa
Monica, California, 90404, Attention: Chief Legal Officer; and (ii) Lions Gate Entertainment Corp.,
c/o Lions Gate Entertainment Inc., 2700 Colorado Avenue, Suite 200, Santa Monica, California,
90404, Attention: Chief Legal Officer. Any notice, election, request or demand by the Company, the
Parent, or any Securityholder or by any other Person pursuant to this Indenture to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made
in writing at the Corporate Trust Office of the Trustee.



SECTION 15.5 GOVERNING LAW.




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



SECTION 15.6 TREATMENT OF SECURITIES AS DEBT.




     It is intended that the Securities will be treated as indebtedness and not as equity for
federal income tax purposes. The provisions of this Indenture shall be interpreted to further this
intention.



SECTION 15.7 COMPLIANCE CERTIFICATES AND OPINIONS.




     (a) Upon any application or demand by the Company or the Parent to the Trustee to take any
action under any of the provisions of this Indenture, the Company or the Parent, as the case may
be, shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such



52









 




conditions precedent have been complied with, except that in the case of any such application
or demand as to which the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no additional certificate or
opinion need be furnished.




     (b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in this Indenture shall include (i) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which
the statements or opinions contained in such certificate or opinion are based; (iii) a statement
that, in the opinion of such Person, he has made such examination or investigation as is reasonably
necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.



SECTION 15.8 PAYMENTS ON BUSINESS DAYS.




     Except as provided pursuant to Section 2.1 pursuant to a Board Resolution of the Company, and
set forth in an Officer’s Certificate of the Company, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of
any Security or the date of redemption of any Security shall not be a Business Day, then payment of
interest or principal (and premium, if any) may be made on the next succeeding Business Day with
the same force and effect as if made on the nominal date of maturity or redemption, and no interest
shall accrue for the period after such nominal date.



SECTION 15.9 CONFLICT WITH TRUST INDENTURE ACT.




     If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
any provision of the Trust Indenture Act, such Trust Indenture Act provision shall control.



SECTION 15.10 COUNTERPARTS.




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



SECTION 15.11 SEPARABILITY.




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



SECTION 15.12 COMPLIANCE CERTIFICATES.




     The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year
during which any Securities of any series were outstanding, an Officer’s Certificate stating



53









 




whether or not the signers know of any Default or Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from the principal executive officer,
principal financial officer or principal accounting officer of the Company that a review has been
conducted of the activities of the Company and the Company’s performance under this Indenture and
that the Company has complied with all conditions and covenants under this Indenture. For purposes
of this Section 15.12, such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If any of the officers of the Company signing
such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.







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



	 	 	 	 	 
	 	LIONS GATE ENTERTAINMENT INC., as

Company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LIONS GATE ENTERTAINMENT CORP., as

Parent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[_______________________], as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: