EX-4.23



 







Exhibit 4.23




 





PEABODY ENERGY CORPORATION

Issuer




and




U.S. BANK NATIONAL ASSOCIATION

Trustee




 






FORM OF SUBORDINATED




INDENTURE




 






Dated as of [_______], 200[_]




 





 









 





PEABODY ENERGY CORPORATION

Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of [_______], 200[_]




	 	 	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	 	 	 
	§310

	 	(a)(1)
	 	 	 	6.09
	 

	 	(a)(2)
	 	 	 	6.09
	 

	 	(a)(3)
	 	 	 	Not Applicable
	 

	 	(a)(4)
	 	 	 	Not Applicable
	 

	 	(b)
	 	 	 	6.08
	 

	 	 	 	 	 	6.10
	§311

	 	(a)
	 	 	 	6.13(a)
	 

	 	(b)
	 	 	 	6.13(b)
	§312

	 	(a)
	 	 	 	7.01
	 

	 	 	 	 	 	7.02(a)
	 

	 	(b)
	 	 	 	7.02(b)
	 

	 	(c)
	 	 	 	7.02(c)
	§313

	 	(a)
	 	 	 	7.03(a)
	 

	 	(b)
	 	 	 	7.03(b)
	 

	 	(c)
	 	 	 	7.03(a)
	 

	 	 	 	 	 	7.03(b)
	 

	 	(d)
	 	 	 	7.03(c)
	§314

	 	(a)
	 	 	 	7.04
	 

	 	(c)(1)
	 	 	 	1.02
	 

	 	(c)(2)
	 	 	 	1.02
	 

	 	(c)(3)
	 	 	 	Not Applicable
	 

	 	(d)
	 	 	 	Not Applicable
	 

	 	(e)
	 	 	 	1.02
	§315

	 	(a)
	 	 	 	6.01(a)
	 

	 	(b)
	 	 	 	6.02
	 

	 	(c)
	 	 	 	6.01(b)
	 

	 	(d)
	 	 	 	6.01(c)
	 

	 	(d)(1)
	 	 	 	6.01(c)
	 

	 	(d)(2)
	 	 	 	6.01(c)(2)
	 

	 	(d)(3)
	 	 	 	6.01(c)(3)
	 

	 	(e)
	 	 	 	5.09
	§316

	 	(a)
	 	 	 	5.08
	 

	 	(a)(1)(A)
	 	 	 	5.08
	 

	 	(a)(1)(B)
	 	 	 	5.02
	 

	 	 	 	 	 	5.08
	 

	 	(a)(2)
	 	 	 	Not Applicable
	 

	 	(b)
	 	 	 	5.05
	§317

	 	(a)(1)
	 	 	 	5.03
	 

	 	(a)(2)
	 	 	 	5.03
	 

	 	(b)
	 	 	 	10.03
	§318

	 	(a)
	 	 	 	1.07








 




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





 









 





Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	“Act”
	 	 	2	 
	“Affiliate”
	 	 	2	 
	“Authenticating Agent”
	 	 	2	 
	“Blockage Notice”
	 	 	2	 
	“Board of Directors”
	 	 	2	 
	“Board Resolution”
	 	 	2	 
	“Business Day”
	 	 	2	 
	“Capital Stock”
	 	 	2	 
	“Commission”
	 	 	2	 
	“Company”
	 	 	2	 
	“Company Request” and “Company Order”
	 	 	2	 
	“Corporate Trust Office”
	 	 	3	 
	“Covenant Defeasance Option”
	 	 	3	 
	“Default”
	 	 	3	 
	“Defaulted Interest”
	 	 	3	 
	“Designated Senior Indebtedness”
	 	 	3	 
	“Discharged”
	 	 	3	 
	“Eligible Guarantors”
	 	 	3	 
	“Equity Interests”
	 	 	3	 
	“Event of Default”
	 	 	3	 
	“Exchange Act”
	 	 	3	 
	“Global Security”
	 	 	3	 
	“Guarantee”
	 	 	3	 
	“Guarantee Blockage Notice”
	 	 	3	 
	“Guarantee Payment Blockage Period”
	 	 	3	 
	“Guarantor Payment Default”
	 	 	3	 
	“Guarantor”
	 	 	4	 
	“Hedging Obligations”
	 	 	4	 
	“Holder”
	 	 	4	 
	“Indenture”
	 	 	4	 
	“interest”
	 	 	4	 
	“Interest Payment Date”
	 	 	4	 
	“Legal Defeasance Option”
	 	 	4	 
	“Maturity”
	 	 	4	 
	“Non-Guarantor Payment Default”
	 	 	4	 
	“Non-Payment Default”
	 	 	4	 
	“Officer”
	 	 	4	 
	“Officers’ Certificate”
	 	 	4	 
	“Opinion of Counsel”
	 	 	5	 
	 
	 	 	 	 
	 i






 









 






	 	 	 	 	 
	 	 	Page	 
	“Original Issue Discount Security”
	 	 	5	 
	“Outstanding”
	 	 	5	 
	“pay its Guarantee”
	 	 	6	 
	“pay the Securities”
	 	 	6	 
	“Paying Agent”
	 	 	6	 
	“Payment Blockage Period”
	 	 	6	 
	“Payment Default”
	 	 	6	 
	“Person”
	 	 	6	 
	“Permitted Junior Securities”
	 	 	6	 
	“Redemption Date”
	 	 	6	 
	“Redemption Price”
	 	 	6	 
	“Responsible Officer”
	 	 	7	 
	“Representative”
	 	 	7	 
	“Securities”
	 	 	7	 
	“Security Register” and “Security Registrar”
	 	 	7	 
	“Senior Credit Facilities”
	 	 	7	 
	“Senior Indebtedness”
	 	 	7	 
	“Senior Notes”
	 	 	8	 
	“Senior Subordinated Indebtedness”
	 	 	8	 
	“Significant Subsidiary”
	 	 	8	 
	“Special Record Date”
	 	 	9	 
	“Stated Maturity”
	 	 	9	 
	“Subordinated Indebtedness”
	 	 	9	 
	“Subsidiary”
	 	 	9	 
	“Trustee”
	 	 	9	 
	“Trust Indenture Act”
	 	 	9	 
	“United States”
	 	 	9	 
	“U.S. Depositary”
	 	 	9	 
	“U.S. Government Obligations”
	 	 	9	 
	“Voting Stock”
	 	 	10	 
	“Yield to Maturity”
	 	 	10	 
	SECTION 1.02. Acts of Holders
	 	 	10	 
	 
	 	 	 	 
	ARTICLE TWO SECURITY FORMS
	 	 	11	 
	 
	 	 	 	 
	SECTION 2.01. Forms Generally
	 	 	11	 
	SECTION 2.02. Form of Trustee’s Certificate of Authentication
	 	 	11	 
	SECTION 2.03. Securities in Global Form
	 	 	11	 
	 
	 	 	 	 
	ARTICLE THREE THE SECURITIES
	 	 	12	 
	 
	 	 	 	 
	SECTION 3.01. Amount Unlimited; Issuable in Series
	 	 	12	 
	SECTION 3.02. Denominations
	 	 	14	 
	SECTION 3.03. Authentication and Dating
	 	 	14	 
	 
	 	 	 	 
	 ii






 









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.04. Execution of Securities
	 	 	15	 
	SECTION 3.05. Exchange and Registration of Transfer of Securities
	 	 	15	 
	SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities
	 	 	16	 
	SECTION 3.07. Temporary Securities
	 	 	16	 
	SECTION 3.08. Payment of Interest; Interest Rights Preserved
	 	 	18	 
	SECTION 3.09. Persons Deemed Owners
	 	 	20	 
	SECTION 3.10. Cancellation
	 	 	20	 
	SECTION 3.11. Computation of Interest
	 	 	20	 
	SECTION 3.12. CUSIP Numbers
	 	 	20	 
	 
	 	 	 	 
	ARTICLE FOUR SATISFACTION AND DISCHARGE
	 	 	20	 
	 
	 	 	 	 
	SECTION 4.01. Satisfaction and Discharge of Indenture
	 	 	20	 
	SECTION 4.02. Application of Trust Money
	 	 	21	 
	 
	 	 	 	 
	ARTICLE FIVE REMEDIES
	 	 	22	 
	 
	 	 	 	 
	SECTION 5.01. Events of Default
	 	 	22	 
	SECTION 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	23	 
	SECTION 5.03. Payment of Securities on Default; Suit Therefor
	 	 	24	 
	SECTION 5.04. Application of Moneys Collected by Trustee
	 	 	26	 
	SECTION 5.05. Proceedings by Holders
	 	 	27	 
	SECTION 5.06. Proceedings by Trustee
	 	 	27	 
	SECTION 5.07. Remedies Cumulative and Continuing
	 	 	27	 
	 SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders
	 	 	28	 
	SECTION 5.09. Undertaking to Pay Costs
	 	 	28	 
	 
	 	 	 	 
	ARTICLE SIX THE TRUSTEE
	 	 	29	 
	 
	 	 	 	 
	SECTION 6.01. Certain Duties and Responsibilities
	 	 	29	 
	SECTION 6.02. Notice of Defaults
	 	 	30	 
	SECTION 6.03. Certain Rights of Trustee
	 	 	30	 
	SECTION 6.04. Not Responsible for Recitals or Issuance of Securities
	 	 	31	 
	SECTION 6.05. May Hold Securities
	 	 	32	 
	SECTION 6.06. Money Held in Trust
	 	 	32	 
	SECTION 6.07. Compensation and Reimbursement
	 	 	32	 
	SECTION 6.08. Disqualification; Conflicting Interests
	 	 	33	 
	SECTION 6.09. Corporate Trustee Required; Eligibility
	 	 	33	 
	SECTION 6.10. Resignation and Removal; Appointment of Successor
	 	 	34	 
	SECTION 6.11. Acceptance of Appointment by Successor
	 	 	35	 
	SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	36	 
	SECTION 6.13. Preferential Collection of Claims Against Company
	 	 	36	 
	SECTION 6.14. Appointment of Authenticating Agent
	 	 	40	 
	 
	 	 	 	 
	 iii






 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE SEVEN HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	41	 
	 
	 	 	 	 
	SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders
	 	 	41	 
	SECTION 7.02. Preservation of Information; Communications to Holders
	 	 	42	 
	SECTION 7.03. Reports by Trustee
	 	 	43	 
	SECTION 7.04. Reports by Company
	 	 	44	 
	 
	 	 	 	 
	ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
	 	 	45	 
	 
	 	 	 	 
	SECTION 8.01. Consolidations and Mergers of Company and Conveyances Permitted Subject to
Certain Conditions
	 	 	45	 
	SECTION 8.02. Rights and Duties of Successor Corporation
	 	 	45	 
	SECTION 8.03. Officers’ Certificate and Opinion of Counsel
	 	 	46	 
	 
	 	 	 	 
	ARTICLE NINE SUPPLEMENTAL INDENTURES
	 	 	46	 
	 
	 	 	 	 
	SECTION 9.01. Supplemental Indentures without Consent of Holders
	 	 	46	 
	SECTION 9.02. Supplemental Indentures with Consent of Holders
	 	 	48	 
	SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures
	 	 	49	 
	SECTION 9.04. Notation on Securities
	 	 	49	 
	SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee
	 	 	49	 
	 
	 	 	 	 
	ARTICLE TEN COVENANTS
	 	 	50	 
	 
	 	 	 	 
	SECTION 10.01. Payment of Principal and Interest
	 	 	50	 
	SECTION 10.02. Maintenance of Office or Agency
	 	 	50	 
	SECTION 10.03. Money for Security Payments to be Held in Trust
	 	 	50	 
	SECTION 10.04. Payment of Taxes and Other Claims
	 	 	51	 
	SECTION 10.05. Maintenance of Properties
	 	 	52	 
	SECTION 10.06. Statement as to Default
	 	 	52	 
	SECTION 10.07. Corporate Existence
	 	 	52	 
	SECTION 10.08. Waiver of Certain Covenants
	 	 	52	 
	SECTION 10.09. Calculation of Original Issue Discount
	 	 	53	 
	SECTION 10.10. Reports.
	 	 	53	 
	 
	 	 	 	 
	ARTICLE ELEVEN REDEMPTION OF SECURITIES
	 	 	53	 
	 
	 	 	 	 
	SECTION 11.01. Applicability of Article
	 	 	53	 
	SECTION 11.02. Notice of Redemption; Selection of Securities
	 	 	53	 
	SECTION 11.03. Payment of Securities Called for Redemption
	 	 	54	 
	 
	 	 	 	 
	 iv






 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE TWELVE SINKING FUNDS
	 	 	55	 
	 
	 	 	 	 
	SECTION 12.01. Applicability of Article
	 	 	55	 
	SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with Securities
	 	 	55	 
	SECTION 12.03. Redemption of Securities for Sinking Fund
	 	 	55	 
	 
	 	 	 	 
	ARTICLE THIRTEEN DEFEASANCE
	 	 	56	 
	 
	 	 	 	 
	SECTION 13.01. Applicability of Article
	 	 	57	 
	SECTION 13.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations
	 	 	57	 
	SECTION 13.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust
	 	 	58	 
	SECTION 13.04. Repayment to Company
	 	 	58	 
	 
	 	 	 	 
	ARTICLE FOURTEEN SUBORDINATION
	 	 	59	 
	 
	 	 	 	 
	SECTION 14.01. Agreement to Subordinate
	 	 	59	 
	SECTION 14.02. Liquidation, Dissolution, Bankruptcy
	 	 	59	 
	SECTION 14.03. Default on Senior Indebtedness of the Company
	 	 	59	 
	SECTION 14.04. Acceleration of Payment of Securities
	 	 	61	 
	SECTION 14.05. When Distribution Must Be Paid Over
	 	 	61	 
	SECTION 14.06. Subrogation
	 	 	61	 
	SECTION 14.07. Relative Rights
	 	 	61	 
	SECTION 14.08. Subordination May Not Be Impaired by Company
	 	 	61	 
	SECTION 14.09. Rights of Trustee and Paying Agent
	 	 	62	 
	SECTION 14.10. Distribution or Notice to Representative
	 	 	62	 
	SECTION 14.11. Article Fourteen Not to Prevent Events of Default or Limit Right to
Accelerate
	 	 	62	 
	SECTION 14.12. Trust Moneys Not Subordinated
	 	 	62	 
	SECTION 14.13. Trustee Entitled to Rely
	 	 	62	 
	SECTION 14.14. Trustee to Effectuate Subordination
	 	 	63	 
	SECTION 14.15. Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company
	 	 	63	 
	SECTION 14.16. Reliance by Holders of Senior Indebtedness of the Company on
Subordination Provisions
	 	 	63	 
	SECTION 14.17. Defeasance
	 	 	64	 
	 
	 	 	 	 
	ARTICLE FIFTEEN GUARANTEES
	 	 	64	 
	 
	 	 	 	 
	SECTION 15.01. Applicability of Article
	 	 	64	 
	SECTION 15.02. Guarantee
	 	 	64	 
	SECTION 15.03. Obligations of the Guarantor Unconditional
	 	 	65	 
	SECTION 15.04. Article Fifteen Not To Prevent Events of Default
	 	 	66	 
	SECTION 15.05. Execution and Delivery of Guarantee
	 	 	66	 
	 
	 	 	 	 
	 v






 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE SIXTEEN SUBORDINATION OF GUARANTEES
	 	 	66	 
	 
	 	 	 	 
	SECTION 16.01. Agreement to Subordinate
	 	 	66	 
	SECTION 16.02. Liquidation, Dissolution, Bankruptcy
	 	 	67	 
	SECTION 16.03. Default on Senior Indebtedness of a Guarantor
	 	 	67	 
	SECTION 16.04. Demand for Payment
	 	 	68	 
	SECTION 16.05. When Distribution Must Be Paid Over
	 	 	69	 
	SECTION 16.06. Subrogation
	 	 	69	 
	SECTION 16.07. Relative Rights
	 	 	69	 
	SECTION 16.08. Subordination May Not Be Impaired by a Guarantor
	 	 	69	 
	SECTION 16.09. Rights of Trustee and Paying Agent
	 	 	69	 
	SECTION 16.10. Distribution or Notice to Representative
	 	 	70	 
	SECTION 16.11. Article Sixteen Not to Prevent Events of Default or Limit Right to Demand
Payment
	 	 	70	 
	SECTION 16.12. Trust Moneys Not Subordinated
	 	 	70	 
	SECTION 16.13. Trustee Entitled to Rely
	 	 	70	 
	SECTION 16.14. Trustee to Effectuate Subordination
	 	 	71	 
	SECTION 16.15. Trustee Not Fiduciary for Holders of Senior Indebtedness of Guarantors
	 	 	71	 
	SECTION 16.16. Reliance by Holders of Senior Indebtedness of a Guarantor on
Subordination Provisions
	 	 	71	 
	 
	 	 	 	 
	ARTICLE SEVENTEEN MISCELLANEOUS
	 	 	71	 
	 
	 	 	 	 
	SECTION 17.01. Form of Documents Delivered to Trustee
	 	 	71	 
	SECTION 17.02. Notices
	 	 	72	 
	SECTION 17.03. Notice to Holders; Waiver
	 	 	73	 
	SECTION 17.04. Trust Indenture Act Controls
	 	 	74	 
	SECTION 17.05. Certificate and Opinion as to Conditions Precedent
	 	 	74	 
	SECTION 17.06. Statements Required in Certificate or Opinion
	 	 	74	 
	SECTION 17.07. Table of Contents, Headings, etc.
	 	 	75	 
	SECTION 17.08. Successors and Assigns
	 	 	75	 
	SECTION 17.09. Separability Clause
	 	 	75	 
	SECTION 17.10. Benefits of Indenture
	 	 	75	 
	SECTION 17.11. Rules by Trustee and Agents
	 	 	75	 
	SECTION 17.12. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	75	 
	SECTION 17.13. Governing Law
	 	 	75	 
	SECTION 17.14. Legal Holidays
	 	 	76	 
	SECTION 17.15. Indenture and Securities Solely Corporate Obligations
	 	 	76	 
	SECTION 17.16. No Security Interest Created
	 	 	76	 
	SECTION 17.17. Counterpart Originals
	 	 	76	 
	SECTION 17.18. No Adverse Interpretation of Other Agreements
	 	 	76	 
	 
	 	 	 	 
	 vi






 









 






	 	 	 	 	 
	 	 	Page	 
	Exhibit A   Form of Subordinated Security
	 	 	 	 
	Exhibit B    Form of Guarantee
	 	 	 	 
	 
	 	 	 	 
	 vii






 









 






     INDENTURE, dated as of [___], 200[_] between Peabody Energy Corporation, a Delaware
corporation (hereinafter called the “Company”), and U.S. Bank National Association, as Trustee (the
“Trustee”).



RECITALS OF THE COMPANY




     WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the “Securities”), as in this Indenture provided,
up to such principal amount or amounts as may from time to time be authorized in or pursuant to one
or more Board Resolutions; and



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



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE ONE




Definitions and Other Provisions

of General Application




     SECTION 1.01. Definitions.



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




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




     (2) all other terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and the term “generally
accepted accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles which are generally accepted at the date or
time of such computation; and




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




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



 









 





 2




     “Act” when used with respect to any Holder has the meaning specified in Section 1.02.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”) when used with respect to any
specified Person means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by agreement or otherwise; provided
that beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be
control.



     “Authenticating Agent” means any authenticating agent appointed by the Trustee pursuant to
Section 6.14.



     “Blockage Notice” has the meaning specified in Section 14.03.



     “Board of Directors” means the board of directors of the Company or any duly authorized
committee of that board or any director or directors and/or officer or officers of the Company to
whom that board or committee shall have duly delegated its authority.



     “Board Resolution” means (1) a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, or (2) a certificate signed by the director or
directors and/or officer or officers to whom the Board of Directors or any duly authorized
committee of that board shall have duly delegated its authority, in each case delivered to the
Trustee for the Securities of any series.



     “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in The City of New York are authorized or required by law or
executive order to be closed.



     “Capital Stock” means (i) in the case of a corporation, corporate stock, (ii) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.



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



     “Company” means Peabody Energy Corporation, and any and all successors thereto.



     “Company Request” and “Company Order” mean, respectively, a written request or order signed in
the name of the Company by the Chairman of the Board, the President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to include



 









 





 3



any Vice President
of the Company whether or not designated by a number or a word or words added before or after the
title “Vice President”), and by the Chief Financial Officer, Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.




     “Corporate Trust Office” of the Trustee means the corporate trust office of the Trustee at
which at any particular time its administration of this Indenture shall be principally
administered, which office as of the date hereof is located at Goodwin Square, 225 Asylum Street,
Hartford, Connecticut 06103, Attention: Corporate Trust Services.



     “Covenant Defeasance Option” has the meaning specified in Section 13.02.



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



     “Defaulted Interest” has the meaning specified in Section 3.08.



     “Designated Senior Indebtedness” means:




     (1) any indebtedness outstanding under the Senior Credit Facilities; and




     (2) any other Senior Indebtedness permitted under this Indenture, the principal amount
of which is $25 million or more and that has been designated by the Company as “Designated
Senior Indebtedness.”



     “Discharged” has the meaning specified in Section 13.02.



     “Eligible Guarantors” means the Company’s domestic Subsidiaries.



     “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).



     “Event of Default” has the meaning specified in Article Five.



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



     “Global Security” means a Security evidencing all or part of a series of Securities,
including, without limitation, any temporary or permanent Global Securities.



     “Guarantee” has the meaning specified in Section 15.02.



     “Guarantee Blockage Notice”
has the meaning specified in Section 16.03.



     “Guarantee Payment Blockage Period” has the meaning specified in Section 16.03.



     “Guarantor Payment Default” has the meaning specified in Section 16.03.



 









 





 4




     “Guarantor” has the meaning specified in Section 3.01.



     “Hedging Obligations” means, with respect to any Person, the obligations of such Person under
(i) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate
or commodity cap agreements and currency exchange, interest rate or commodity collar agreements and
(ii) other agreements or arrangements designed to protect such Person against fluctuations in
currency exchange, interest rates or commodity prices, in each case for the purpose of risk
management and not for speculation.



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



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the form and terms of particular series of
Securities established as contemplated hereunder; provided, however, that if at any time more than
one Person is acting as Trustee under this instrument, “Indenture” shall mean with respect to any
one or more series of Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such person is Trustee established as
contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate solely to
other series of Securities for which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had become such Trustee but
to which such Person, as such Trustee, was not a party.



     “interest”
when used with respect to non-interest bearing Securities means interest payable after
Maturity.



     “Interest Payment Date” means the Stated Maturity of an installment of interest on the
Security (in the case of an interest-bearing Security).



     “Legal Defeasance Option” has the meaning specified in Section 13.02.



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



     “Non-Guarantor Payment Default” has the meaning specified in Section 16.03.



     “Non-Payment Default”
has the meaning specified in Section 14.03.



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



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board, the President
or a Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant



 









 





 5



Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.




     “Opinion of Counsel” means a written opinion of counsel who is reasonably acceptable to the
Trustee, who may (except as otherwise expressly provided in this Indenture) be counsel for the
Company. The counsel may be an employee of or counsel to the Company, any Subsidiary of the
Company or the Trustee.



     “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.02.



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




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




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




     (iii) Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture;


provided, however, that in determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Securities that a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee established to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.




     In determining whether the Holders of the requisite principal amount of Outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for
such purpose shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of the acceleration of the maturity thereof pursuant
to Section 5.02.



 









 





 6




     “pay its Guarantee”
has the meaning specified in Section 16.03.



     “pay the Securities” has the meaning specified in Section 14.03.



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



     “Payment Blockage Period” has the meaning specified in Section 14.03.



     “Payment Default” has the meaning specified in Section 14.03.



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



     “Permitted Junior Securities” means:




     (1) Equity Interests in the Company, any Guarantor or any direct or indirect parent of
the Company; or




     (2) unsecured debt securities that are subordinated to all Senior Indebtedness (and any
debt securities issued in exchange for Senior Indebtedness) to substantially the same extent
as, or to a greater extent than, the Securities and the related Guarantees are subordinated
to Senior Indebtedness under this Indenture;


provided that the term “Permitted Junior Securities” shall not include any securities distributed
pursuant to a plan of reorganization if the indebtedness under the Senior Credit Facilities is
treated as part of the same class as the Securities for purposes of such plan of reorganization;
provided further that to the extent that any Senior Indebtedness of the Company or the Guarantors
outstanding on the date of consummation of any such plan of reorganization is not paid in full in
cash on such date, the holders of any such Senior Indebtedness not so paid in full in cash shall
have consented to the terms of such plan of reorganization.




     “Redemption Date” when used with respect to any Security to be redeemed means the date fixed
for such redemption by or pursuant to the Board Resolution or supplemental indenture establishing
the series of Securities of which the Security to be redeemed is a member.



     “Redemption Price” when used with respect to any Security to be redeemed means the price at
which it is to be redeemed pursuant to the Board Resolution or supplemental indenture establishing
the series of Securities of which the Security to be redeemed is a member.



     “Regular Record Date” for the interest payable on any Interest Payment Date (in the case of an
interest-bearing Security) means such date or dates as may be fixed for such purpose in the Board
Resolution or supplemental indenture establishing the series of Securities of which the Security is
a member.



 









 





 7




     “Responsible Officer” when used with respect to the Trustee means any officer in the Corporate
Trust Office of the Trustee and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.



     “Representative” means any trustee, agent or representative (if any) for an issue of Senior
Indebtedness of the Company.



     “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture; provided,
however, that if at any time there is more than one Person acting as Trustee under this instrument,
“Securities” with respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this instrument and shall more particularly mean Securities
authenticated and delivered under this instrument, exclusive, however of Securities of any series
as to which such Person is not Trustee.



     “Security Register” and “Security Registrar”, have the meanings specified in Section 3.05.



     “Senior Credit Facilities” means with respect to the Company, one or more debt facilities or
commercial paper facilities with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders against such receivables)
or letters of credit, in each case, as amended, restated, amended and restated, modified,
supplemented, renewed, refunded, replaced, refinanced, repaid or restructured in whole or in part
from time to time.



     “Senior Indebtedness” means:




     (1) all indebtedness of the Company or any Guarantor outstanding under the Senior
Credit Facilities or Senior Notes and related Guarantees (including interest accruing on or
after the filing of any petition in bankruptcy or similar proceeding or for reorganization
of the Company or any Guarantor (at the rate provided for in the documentation with respect
thereto, regardless of whether or not a claim for post filing interest is allowed in such
proceedings)), and any and all other fees, expense reimbursement obligations,
indemnification amounts, penalties, and other amounts (whether existing on the date of
issuance of the Securities or thereafter created or incurred) and all obligations of the
Company or any Guarantor to reimburse any bank or other Person in respect of amounts paid
under letters of credit, acceptances or other similar instruments;




     (2) all Hedging Obligations (and guarantees thereof) owing to a Lender (as defined in
the Senior Credit Facilities) or any Affiliate of such Lender (or any Person that was a
Lender or an Affiliate of such Lender at the time the applicable agreement giving rise to
such Hedging Obligation was entered into), provided that such Hedging Obligations are
permitted to be incurred under the terms of this Indenture;



 









 





 8





     (3) any other indebtedness of the Company or Guarantor permitted to be incurred under
the terms of this Indenture, unless the instrument under which such indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of payment to the
Securities or any related Guarantee; and




     (4) all obligations with respect to the items listed in the preceding clauses (1), (2)
and (3);


provided, however, that Senior Indebtedness shall not include:





     (a) any obligation of such Person to the Company or any of its Subsidiaries;




     (b) any liability for federal, state, local or other taxes owed or owing by
such Person;




     (c) any accounts payable or other liability to trade creditors arising in the
ordinary course of business;




     (d) any indebtedness or other obligation of such Person which is subordinate or
junior in any respect to any other indebtedness or other obligation of such Person;
or




     (e) that portion of any indebtedness which at the time of incurrence is
incurred in violation of this Indenture or the indentures governing the Senior
Notes; provided, however that such indebtedness shall be deemed not to have been
incurred in violation of this Indenture for purposes of this clause if such
indebtedness consists of Designated Senior Indebtedness, and the holder(s) of such
indebtedness or their agent or representative (a) had no actual knowledge at the
time of incurrence that the incurrence of such indebtedness violated this Indenture
and (b) shall have received a certificate from an officer of the Company to the
effect that the incurrence of such indebtedness does not violate the provisions of
this Indenture.



     “Senior Notes” means the Company’s 6 7/8% Senior Notes due 2013 and 5 7/8% Senior Notes due
2016.



     “Senior Subordinated Indebtedness” means:




     (1) with respect to the Company, indebtedness which ranks equal in right of payment to
the Securities issued by the Company; and




     (2) with respect to any Guarantor, indebtedness which ranks equal in right of payment
to the Guarantee of such entity of Securities.



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article One, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.



 









 





 9




     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.08.



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



     “Subordinated Indebtedness” means, with respect to the Notes,




     (1) any indebtedness of the Company which is by its terms subordinated in right of
payment to the Securities, and




     (2) any indebtedness of any Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such entity of the Securities.



     “Subsidiary” means, with respect to any Person, (i) any corporation, association or other
business entity of which more than 50% of the outstanding voting stock is owned, directly or
indirectly, by the Company or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries and (ii) any partnership (a) the sole general partner or the managing general partner
of which is such Person or a Subsidiary of such Person or (b) the only general partners of which
are such Person or of one or more Subsidiaries of such Person (or any combination thereof). For
the purposes of this definition only, “voting stock” means stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.



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



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, as in force and effect at the date as of which this instrument was executed,
except as provided in Section 9.03.



     “United States” means the United States excluding its territories and possessions.



     “U.S. Depositary” means a clearing agency registered under the Securities Exchange Act of
1934, as amended, or any successor thereto, which shall in either case be designated by the
Corporation pursuant to Section 3.01, until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “U.S. Depositary” shall
mean or include each Person who is then a U.S. Depositary hereunder, and if at any time there is
more than one such Person, “U.S. Depositary” as used with respect to the Securities of any series
shall mean the U.S. Depositary with respect to the Securities of that series.



     “U.S. Government Obligations” has the meaning specified in Section 13.02.



 









 





 10




     “Voting Stock” of a corporation means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of directors, managers
or trustees of such corporation (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the happening of any
contingency).



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



     SECTION 1.02. Acts of Holders.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company and any agent of the Trustee or
the Company, if made in the manner provided in this Section.



     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any
notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by an officer of a corporation or association or a member of a partnership
or an official of a public or governmental body, on behalf of such corporation, association,
partnership, or public or governmental body or by a fiduciary, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the execution by any
Person of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine.



     (c) The ownership of Securities shall be proved by the Security Register.



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



 









 





 11




ARTICLE TWO




Security Forms




     SECTION 2.01. Forms Generally. The Securities of each series shall be in substantially in the form of
Exhibit A hereto, in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as may be required to
comply with any law or with any rules made pursuant thereto or with any rules of any securities
exchange or as may, consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.



     The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.



     SECTION 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication
on all Securities shall be in substantially the following form:



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



	 	 	 	 	 
	 

	 	U.S. Bank National Association,
	 

	 	as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory
	 
	 	 	 	 
	 

	 	Dated:	 	 
	 

	 	 	 	 





     SECTION 2.03. Securities in Global Form. If any Security of a series is issuable in global form, such
Global Security may provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as
shall be specified in such Global Security. Any instructions by the Company with respect to a
Global Security, after its initial issuance, shall be in writing but need not comply with Sections
17.05 or 17.06.



     None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.




 









 











12




ARTICLE THREE   




The Securities




     SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



     The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,




     (1) the title of the Securities of the series, including CUSIP Numbers (which shall
distinguish the Securities of the series from all other Securities);




     (2) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.05, 3.06, 3.07, 9.04 or 11.03);




     (3) the date or dates on which the principal and premium, if any, of the Securities of
the series is payable;




     (4) the rate or rates at which the Securities of the series shall bear interest, or the
method by which such rate or rates shall be determined, if any, the date or dates from which
such interest shall accrue, or the method by which such date or dates shall be determined,
the interest payment dates on which such interest shall be payable and the record dates for
the determination of Holders to whom interest is payable;




     (5) the place or places, if any, in addition to or instead of the Corporate Trust
Office of the Trustee, where the principal of (and premium, if any) and interest on
Securities of the series shall be payable; the extent to which, or the manner in which, any
interest payable on any Global Security on an Interest Payment Date will be paid, if other
than in the manner provided in Section 3.08; and the manner in which any principal of, or
premium, if any, on, any Global Security will be paid, if other than as set forth elsewhere
herein;




     (6) the price or prices at which, the period or periods within 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, pursuant to any sinking fund or otherwise;




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









 



13



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




     (9) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section
5.03;




     (10) any Events of Default with respect to the Securities of a particular series, if
not set forth herein or if other than as set forth herein;




     (11) the extent to which the defeasance provisions of this Indenture do not apply to
the Securities of the series;




     (12) whether the Securities of the series shall be issued in whole or in part in the
form of one or more Global Securities and, in such case, the U.S. Depositary for such Global
Security or Securities; the manner in which and the circumstances under which Global
Securities representing Securities of the series may be exchanged for Securities in
definitive form, if other than, or in addition to, the manner and circumstances specified in
Section 3.07;




     (13) the ranking of the Securities of such series, if other than on a parity with all
other unsecured, unsubordinated indebtedness of the Company;




     (14) provisions, if any, with regard to the conversion or exchange of the Securities of
such series, at the option of the Holders thereof or the Company, as the case may be, for or
into new Securities of a different series or common stock or other securities of the
Company;




     (15) which, if any, of the Eligible Guarantors shall guarantee the Securities on the
terms set forth in Article Fifteen (each of the Eligible Guarantors that guarantee the Debt
Securities set forth in Article Fifteen, if any, a “Guarantor”);




     (16) the ranking of the obligations of each Guarantor under its respective Guarantee,
if other than on parity with all other unsecured, unsubordinated indebtedness of such
Guarantor;




     (17) any trustees, depositaries, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such series; and




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



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









 



14


     SECTION 3.02. Denominations. The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as contemplated by Section 3.01.
In the absence of any such specification with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any integral multiple
thereof.



     SECTION 3.03. Authentication and Dating. 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. Except as otherwise provided in this Article
Three, the Trustee shall thereupon authenticate and deliver said Securities to or upon a Company
Order, signed by two Officers of the Company by manual or facsimile signature. In authenticating such Securities,
and accepting the additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall receive, and (subject to Section 6.01) shall be fully protected in relying upon:




     (1) a copy of any Board Resolution relating thereto and, if applicable, an appropriate
record of any action taken pursuant to such resolution, in each case certified by the
Secretary or an Assistant secretary of the Company;




     (2) an executed supplemental indenture, if any;




     (3) an Officers’ Certificate; and




     (4) an Opinion of Counsel, which shall also state:




     (a) that the form of such Securities has been established by or pursuant to a
Board Resolution or by a supplemental indenture as permitted by Section 2.01 in
conformity with the provisions of this Indenture;




     (b) that the terms of such Securities have been established by or pursuant to a
Board Resolution or by a supplemental indenture as permitted by Section 3.01 in
conformity with the provisions of this Indenture;




     (c) that such Securities, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors’ rights and to general equity principles; and




     (d) that all laws and requirements in respect of the execution and delivery by
the Company of the Securities have been complied with and that authentication and
delivery of the Securities by the Trustee will not violate the terms of the
Indenture.



     The Trustee shall have the right to decline to authenticate and deliver any Securities under
this Section if the Trustee, being advised by counsel, determines that such action may not









 



15



lawfully
be taken or if the Trustee in good faith shall determine that such action would expose the Trustee
to personal liability to existing Holders.



     Each Security shall be dated the date of its authentication.



     Reference is made to Section 15.05 concerning execution and delivery of the Guarantees.



     SECTION 3.04. Execution of Securities. The Securities shall be signed in the name and on behalf of the Company by the manual or
facsimile signatures of two Officers of the Company (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise). Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited, executed by the
Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security executed by the Company 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.



     In case any Officer of the Company who shall have signed any of the Securities shall cease to
be such officer before the Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Securities had not ceased to be such
officer of the Company; and any Security may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Security, shall be the proper officers of the Company,
although at the date of the execution of this Indenture any such person was not such an officer.



     Reference is made to Section 15.05 concerning execution and delivery of the Guarantees.



     SECTION 3.05. Exchange and Registration of Transfer of Securities. Securities of any series
may be exchanged for a like aggregate principal amount of Securities of the same series of other
authorized denominations. Securities to be exchanged shall be surrendered at the office or agency
to be maintained by the Company, as provided in Section 10.02. The Trustee is hereby appointed
“Security Registrar” for the purpose of the registration of Securities and of transfer of
Securities in the Security Register as herein provided. The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register for each series of Securities issued hereunder
(hereinafter collectively referred to as the “Security Register”) in which, subject to such
reasonable regulations at it may prescribe, the Company shall provide for the registration of
Securities and the transfer of Securities as in this Article Three provided. The Security Register
shall be in written form or in any other form capable of being converted into written form within a
reasonable time. Upon due presentment for registration of transfer of any Security of any series
at such office or agency, the Company shall execute and the Trustee shall register, authenticate
and deliver in the name of the transferee or transferees a new Security or Securities of the same
series for an equal aggregate principal amount.



     All Securities presented for registration of transfer or for exchange, redemption or payment
shall (if so required by the Company or the Security Registrar) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form satisfactory to the









 



16



Company
and the Security Registrar duly executed by, the registered Holder or his attorney duly authorized
in writing.



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



     The Company shall not be required to exchange or register the transfer of (a) any Securities
of any series for a period of 15 days preceding the first mailing or publication of notice of
redemption of Securities of such series to be redeemed, or (b) any Securities selected, called or
being called for redemption except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.



     SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or
definitive Security shall become mutilated or be destroyed, lost or stolen, the Company in the case
of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may in its
discretion, execute, and upon its request the Trustee shall authenticate and deliver, a new
Security of the same series bearing a number, letter or other distinguishing symbol 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, or if any such Security shall
have matured or shall be about to mature, instead of issuing a substituted Security, the Company
may pay or authorize the payment of the same without surrender thereof (except in the case of a
mutilated Security). In every case the applicant for a substituted Security shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft
of such 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 connected
therewith and in addition a further sum not exceeding two dollars for each Security so issued in
substitution.



     Every substituted Security issued pursuant to the provisions of this Section 3.06 by virtue of
the fact that any Security is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder. 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 with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.



     SECTION 3.07. Temporary Securities. Pending the preparation of definitive Securities of any series the Company may execute and
the Trustee shall authenticate and deliver temporary









 



17



Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination and substantially in the form
of the definitive Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every such
temporary Security shall be executed by the Company and shall be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with the same effect, as the
definitive Securities. Without unreasonable delay the Company will execute and deliver to the
Trustee definitive Securities of such series and thereupon any or all temporary Securities of such
series may be surrendered in exchange therefore, at the Corporate Trust Office of the Trustee, and
the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities. Such exchange shall be made by the Company at
its own expense and without any charge therefor except that in case of any such exchange involving
any registration of transfer the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.



     If the Company shall establish pursuant to Section 3.01 that the Securities of a series are to
be issued in whole or in part in the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 3.03 and the Company Order with respect
to such series, authenticate and deliver one or more Global Securities in temporary or permanent
form that (i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered in the name of the U.S. Depositary for such Global
Security or Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: “This Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary, unless and until this Security is exchanged
in whole or in part for Securities in definitive form” and such other legend as may be required by
the U.S. Depositary.



     Notwithstanding any other provision of this Section or Section 3.05, unless and until it is
exchanged in whole or in part for Securities in definitive form, a Global Security representing all
or a portion of the Securities of a series may not be transferred except as a whole by the U.S.
Depositary for such series to a nominee of such depositary or by a nominee of such depositary to
such depositary or another nominee of such depositary or by such depositary or any such nominee to
a successor U.S. Depositary for such series or a nominee of such successor depositary.



     If at any time the U.S. Depositary for the Securities of a series notifies the Company that it
is unwilling or unable to continue as U.S. Depositary for the Securities of such series or if at
any time the U.S. Depositary for Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor U.S. Depositary with
respect to the Securities of such series. If a successor U.S. Depositary for the Securities of such
series is not appointed by the Company within 90 days after the Company receives such notice or









 



18



becomes aware of such condition, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.



     The Company may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.



     If the Securities of any series shall have been issued in the form of one or more Global
Securities and if an Event of Default with respect to the Securities of such series shall have
occurred and be continuing, the Company will promptly execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.



     If specified by the Company pursuant to Section 3.01 with respect to Securities of a series,
the U.S. Depositary for such series of Securities may surrender a Global Security for such series
of Securities in exchange in whole or in part for Securities of such series in definitive form on
such terms as are acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and deliver, without charge:




     (1) to each Person specified by the U.S. Depositary a new Registered Security or
Securities of the same series, of any authorized denomination as requested by such Person in
an aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and




     (2) to the U.S. Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.



     Upon the exchange of a Global Security in whole for Securities in definitive form, such Global
Security shall be cancelled by the Trustee. Securities so issued in exchange for a Global Security
shall be registered in such names and in such authorized denominations as the U.S. Depositary for
such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.



     SECTION 3.08. Payment of Interest; Interest Rights Preserved. Interest on any Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall









 



19



be paid
to the Person in whose name that Security is registered at the close of business on the Regular
Record Date for such interest.



     Any interest on any Security which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date or within 30 days thereafter (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 may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder at his address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion, in the name and at
the expense of the Company, cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such publication shall
not be a condition precedent to the establishment of 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 the Securities are registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).




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



     Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall









 



20



carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.



     SECTION 3.09. Persons Deemed Owners. Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee, the Authenticating Agent and any agent of the Company or the
Trustee may treat the Person in whose name the Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, and (subject to Section 3.08) interest on,
such Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee, the Authenticating Agent nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.



     SECTION 3.10. Cancellation. All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee, and any such Securities and Securities surrendered directly to the Trustee for any
such purpose shall be promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of by the Trustee in its customary
manner.



     SECTION 3.11. Computation of Interest. Except as otherwise specified as contemplated by
Section 3.01 for Securities of any Series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.



     SECTION 3.12. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that 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 a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any change in the
“CUSIP” numbers.



ARTICLE FOUR   




Satisfaction and Discharge




     SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture shall cease to be of
further effect (except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when:



          (1) either:










 



21





     (A) all Securities 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 3.06 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or




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




     (i) have become due and payable, or




     (ii) will become due and payable at their Stated Maturities within one
year, or




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




and the Company in the case of (i), (ii) or (iii) 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 to the date of such deposit (in the case of Securities that
have become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;




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




     (3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that 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, the obligations of the Company to
the Trustee under Section 6.07 and the obligations of the Trustee to any Authenticating Agent under
Section 6.14 shall survive such satisfaction and discharge.




     SECTION 4.02. Application of Trust Money. All money deposited with the Trustee pursuant to
Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.









 



22


ARTICLE FIVE   




Remedies




     SECTION 5.01. Events of Default.



     “Events of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events and such other events as may be established with respect to the
Securities of that series as contemplated by Section 3.01 hereof (whatever the reasons for such
Event of Default and whether it shall be voluntary or involuntary or be effected by operation of
law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):




     (a) default in the payment of any installment of interest upon any Security of that
series as and when the same shall become due and payable, and continuance of such default
for a period of 30 days (whether or not prohibited by the subordination provisions of this
Indenture); or




     (b) default in the payment of any of the principal of and premium, if any, on any
Security of that series as and when the same shall become due and payable, either at
Maturity, upon redemption, by declaration, repayment or otherwise (whether or not prohibited
by the subordination provisions of this Indenture); or




     (c) default in the payment or satisfaction of any sinking fund installment as and when
the same shall become due and payable by the terms of a Security of that series; or




     (d) failure on the part of the Company or a Guarantor duly to observe or perform any
other of the covenants or agreements on the part of the Company or a Guarantor in this
Indenture (other than those set forth exclusively in the terms of any particular series of
Securities established as contemplated in this Indenture) continued for a period of 60 days
after the date on which written notice of such failure, requiring the Company or a Guarantor
to remedy the same, shall have been given to the Company or a Guarantor by the Trustee, or
to the Company or a Guarantor and the Trustee by the Holders of at least 25 percent in
aggregate principal amount of the Securities of such series at the time Outstanding, and
stating that such notice is a “Notice of Default” hereunder; or




     (e) the commencement by the Company or any Significant Subsidiary of the Company or any
group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary of a
voluntary case or proceeding under any applicable U.S. federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or any Significant
Subsidiary of the Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary to the entry of a decree or order for relief in respect
of the Company or any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a









 



23



Significant Subsidiary in an involuntary case or
proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Significant Subsidiary of the Company or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, or the
filing by the Company or any Significant Subsidiary of the Company or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary of a petition
or answer or consent seeking reorganization or relief under any applicable U.S. federal or
state law, or the consent by the Company or any Significant Subsidiary of the Company or any
group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary to
the filing of such petition or to the appointment of or the taking possession by a custodian
of the Company or any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary or of any substantial part
of their properties, or the making by the Company or any Significant Subsidiary of the
Company or any group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary of an assignment for the benefit of creditors, or the admission by the Company or
any Significant Subsidiary of the Company or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in writing of their inability to pay its
debts generally as they become due, or the taking of corporate action by the Company or any
Significant Subsidiary of the Company or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
expressly in furtherance of any such action; or




     (f) a Guarantee of a Security of that series (other than in accordance with the terms
of the Guarantee) shall be held in any judicial proceeding to be unenforceable or invalid.



     SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default described in Section 5.01 (other than in clause (e) with respect to the
Company) or established pursuant to Section 3.01 with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities of such series shall have already become due and payable, either
the Trustee or the Holders of not less than 25 percent in aggregate principal amount of the
Securities of such series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by Holders), may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Securities of such series plus accrued and unpaid
interest to be due and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Securities of such
series contained to the contrary notwithstanding, provided, however, that payment of principal of
(and premium, if any) and interest on the Securities of such series shall remain subordinated to
the extent provided in Article Fourteen. If an Event of Default described in clause (e) in respect
of the Company occurs and is continuing, then and in each and every such case, unless the principal
of all the Securities shall have already become due and payable, the principal amount of all the
Securities of each series then Outstanding hereunder (or, if any Securities are Original Issue
Discount Securities, such portion of the principal amount as may be









 



24



specified in the terms thereof)
plus any accrued and unpaid interest shall become immediately due and payable, provided, however,
that payment of principal of (and premium, if any) and interest on the Securities of such series
shall remain subordinated to the extent provided in Article Fourteen. The foregoing provisions
are, however, subject to the condition that if, at any time after the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion of the principal
amounts as may be specified in the terms of that series) of the Securities of any series (or of all
the Securities, as the case may be) shall have been declared or become 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 Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of and premium, if any, on any and all Securities
of such series (or of all the Securities, as the case may be) that shall have become due otherwise
than by acceleration (with interest on overdue installments of interest, to the extent that payment
of such interest is enforceable under applicable law, and on such principal and premium, if any, at
the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) borne
by the Securities of such series (or at the rates of interest or Yields to Maturity of all the Securities, as the case may be),
to the date of such payment or deposit) and the reasonable expenses of the Trustee, and any and all
defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or
accrued interest on Securities of such series (or of all the Securities, as the case may be) which
shall have become due by acceleration, shall have been cured or waived pursuant to Section 5.08,
then and in every such case the Holders of a majority in aggregate principal amount of the
Securities of such series (or of all the Securities, as the case may be) then Outstanding, by
written notice to the Company and to the Trustee, may waive all defaults with respect to that
series (or with respect to all Securities, as the case may be) and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right consequent thereon.



     In case the Trustee or any Holder shall have proceeded to enforce any right 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 or to
such Holder, then and in every such case the Company and the Trustee and the Holders shall be
restored respectively to their several positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee and the Holders shall continue as though no such proceeding
had been taken.



     SECTION 5.03. Payment of Securities on Default; Suit Therefor.



     The Company covenants that (a) in case default shall be made in the payment of any installment
of interest upon any of the Securities of any series as and when the same shall become due and
payable, and such default shall have continued for a period of 30 days, or (b) in case default
shall be made in the payment of the principal of and premium, if any, on any of the Securities of
any series as and when the same shall become due and payable, whether at maturity of the Securities
of that series or upon redemption or by declaration, repayment or otherwise, then, upon demand of
the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities
of that series, the whole amount that then shall have become due and payable on all such Securities
of that series for principal and premium, if any, or interest, or both,









 



25



as the case may be, with
interest upon the overdue principal and (to the extent that payment of such interest is enforceable
under applicable law) upon the overdue installments of interest at the rate or Yield to Maturity
(in the case of Original Issue Discount Securities) borne by the Securities of that series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel,
and any expenses or liabilities incurred by the Trustee hereunder other than through its negligence
or bad faith.



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



     In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Securities of any series under any applicable bankruptcy,
insolvency or similar law, or in case a receiver or trustee shall have been appointed for the
property of the Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities of any series, or to the
creditors or property of the Company or such other obligor, the Trustee, irrespective of whether
the principal of the Securities of any series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 5.03 shall be entitled and empowered, by intervention in
such proceedings or otherwise, to file and prove a claim or claims for the whole amount of
principal (and premium, if any) and interest (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of
that series) owing and unpaid in respect of the Securities of any series and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of the Holders allowed in
such judicial proceedings relative to the Company or any other obligor on the Securities of any
series, its or their creditors, or its or their property, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Holders to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for compensation and expenses, including counsel
fees and expenses incurred by it up to the date of such distribution. To the extent that such
payment of reasonable compensation, expenses and counsel fees and expenses out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on,
and shall be paid out of, any and all distributions, dividends, moneys, securities and other
property which the Holders of the Securities of any series may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or arrangement or
otherwise.









 



26


     All rights of action and of asserting claims under this Indenture, or under any of the
Securities, may be enforced by the Trustee without the possession of any of the Securities, or the
production thereof on 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 be for the ratable benefit of the Holders of all the
Securities in respect of which such action was taken.



     SECTION 5.04. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee under this Article Five shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities in respect of which moneys have been collected, and stamping
thereon the payment, if only partially paid, and upon surrender thereof if fully paid:




     First: To the payment of costs and expenses of collection and reasonable
compensation to the Trustee, its agents, attorneys and counsel, and of all other expenses
and liabilities incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;




     Second: To holders of Senior Indebtedness of the Company and, if such money
or property has been collected from a Guarantor, to holders of Senior Indebtedness of such
Guarantor, in each case to the extent required by Article Fourteen and/or Article Sixteen
hereof, as applicable;




     Third:  In case the principal of the Outstanding Securities in respect of
which such moneys have been collected shall not have become due and be unpaid, to the
payment of interest on the Securities of that series, in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) borne by the Securities of that
series, such payments to be made ratably to the persons entitled thereto;




     Fourth: In case the principal of the Outstanding Securities in respect of
which such moneys have been collected shall have become due, by declaration or otherwise, to
the payment of the whole amount then owing and unpaid upon the Securities of that series for
principal and premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) borne by the Securities of that series; and in case such
moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon the
Securities of that series, then to the payment of such principal and premium, if any, and
interest without preference or priority of principal and premium, if any, over interest, or
of interest over principal and premium, if any, or of any installment of interest over any
other installment of interest, or of any Security of that series over any other Security of
that series, ratably to the aggregate of such principal and premium, if any, and accrued and
unpaid interest; and









 



27



     Fifth: Any surplus then remaining shall be paid to the Company, its
successors or assigns, or to whomsoever may be entitled to receive the same.



     SECTION 5.05. Proceedings by Holders. No Holder of any Security of any series shall have any
right by virtue of 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 such Holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25 percent in aggregate principal amount of the Securities
of that 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 and shall have offered to the
Trustee such indemnity reasonably satisfactory to the Trustee as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and during such 60-day period, no direction
inconsistent with such written request has been given to the Trustee by the Holders of a majority
in aggregate principal amount of the Securities of that series then Outstanding (or such amount as
shall have acted at a meeting pursuant to the provisions of this Indenture), it being understood
and intended, and being expressly covenanted by the taker and Holder of every Security with every
other taker and Holder and the Trustee, that no one or more Holders shall have any right in any
manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holder, 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 such Holders.



     Notwithstanding any other provisions in this Indenture, however, the right of any Holder of
any Security to receive payment of the principal of and premium, if any, and interest on such
Security, on or after the respective due dates expressed in such Security, or to institute suit for
the enforcement of any such payment on or after such respective dates shall not be impaired or
affected without the written consent of such Holder.



     SECTION 5.06. Proceedings by Trustee. 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 necessary to protect and enforce
any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement contained in this
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.



     SECTION 5.07. Remedies Cumulative and Continuing. All powers and remedies given by this
Article Five to the Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no delay or omission of
the Trustee or of any Holder to exercise any right or power accruing upon any default occurring and
continuing as aforesaid shall impair any such right or power, or shall









 



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be construed to be a waiver
of any such default or an acquiescence therein; and, subject to the provisions of Section 5.05, every power and
remedy given by this Article Five or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.



     SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders. The
Holders of a majority in aggregate principal amount of the Securities of any series at the time
Outstanding shall have the right to direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee
with respect to the Securities of such series; provided, however, that (subject to the provisions
of Section 6.01) the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith shall determine that the action or proceedings so
directed would involve the Trustee in personal liability. Subject to Section 5.02, the Holders of
a majority in aggregate principal amount of the Securities of that series at the time Outstanding
may on behalf of the Holders of all of the Securities of that series waive any past default or
Event of Default described in Section 5.01, or any other Event of Default for such series specified
in the terms thereof as contemplated by Section 3.01, and its consequences except a default in the
payment of interest, or premium, if any, on, or the principal of any of the Securities or a default
which, under Section 9.02, cannot be modified or amended without the consent of each Holder of each
Security affected by such waiver. Upon any such waiver the Company, the Trustee and the Holders of
the Securities of that 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 Event of
Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 5.08, said default or Event of Default shall
for all purposes of the Securities of that series and this Indenture be deemed to have been cured
and to be not continuing.



     SECTION 5.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant 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 and
expenses, 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 5.09
shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder of the
Securities of any series or group of such Holders, holding in the aggregate more than ten percent
in principal amount of the Outstanding Securities of that series or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or premium, if any, or interest on
any Security against the Company on or after the due date expressed in such Security.









 



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ARTICLE SIX   




The Trustee




     SECTION 6.01. Certain Duties and Responsibilities.



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




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




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provisions
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 substantially conform to the
requirements of this Indenture (but needs not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).



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



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




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




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




     (3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders pursuant to
Section 5.08 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; and




     (4) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers.









 



30


     (d) The Trustee shall not be obligated to pay interest on any money or other assets received
by it unless otherwise agreed with the Company. Assets held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.



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



     SECTION 6.02. Notice of Defaults.



     Within 90 days after the occurrence of any default with respect to the Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of that Series, as their
names and addresses appear in the Security Register, notice of all defaults with respect to that
Series actually known to a Responsible Officer of the Trustee, unless such defaults shall have been
cured or waived before the giving of such notice; 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 of the Securities
of such series or in the making of any sinking fund payment with respect to such series, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests of the Holders. For
the purpose of this Section, the term “default” means any event which is, or after notice or lapse
of time or both would become, an Event of Default.



     SECTION 6.03. Certain Rights of Trustee.



     Except as otherwise provided in Section 6.01:




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




     (b) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;




     (c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate;




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









 



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




     (f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney at the expense of the Company and shall
incur no liability of any kind by reason of such inquiry or investigation;




     (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;




     (h) the Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee pursuant to
Section 17.02, and such notice references the Securities and this Indenture; and




     (i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder.




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



     SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities, except the Trustee’s certificate of
authentication, shall be taken as the statements of the Company, and the Trustee and any
Authenticating Agent assume no responsibility for their correctness. The Trustee and any
Authenticating Agent make no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or application by the Company
of the Securities or the proceeds thereof.









 



32


     SECTION 6.05. May Hold Securities.



     The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any other agent of
the Company or of the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.



     SECTION 6.06. Money Held in Trust.



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



     SECTION 6.07. Compensation and Reimbursement.



     The Company agrees:




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




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as shall be determined by a court of competent
jurisdiction to have been caused by its own negligence or willful misconduct; and




     (3) to fully indemnify the Trustee, any predecessor Trustee and their agents for, and
to hold them harmless against, any and all loss, liability, claim, damage, taxes (other than
taxes based upon the income of the Trustee) or expense (including legal fees and expenses)
incurred without negligence or willful misconduct on their part, arising out of or in
connection with the acceptance or administration of this trust, including the costs and
expenses of defending themselves against any claim (whether asserted by the Company, or any
Holder or any other Person) or liability in connection with the exercise or performance of
any of their powers or duties hereunder.



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



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.01(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute









 



33



expenses of
administration under any applicable Federal or state bankruptcy, insolvency or other similar law.



     The provisions of this Section shall survive the termination of this Indenture and the
resignation or removal of the Trustee.



     SECTION 6.08. Disqualification; Conflicting Interests.



     The Trustee for the Securities shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act during the period of time required thereby. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the penultimate paragraph of
Section 310(b) of the Trust Indenture Act. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of
any series, there shall be excluded Securities of any particular series of Securities other than
that series.



     SECTION 6.09. Corporate Trustee Required; Eligibility.



     There shall at all times be a Trustee hereunder which shall be:




     (1) a corporation organized and doing business under the laws of the United States of
America, any state thereof, or the District of Columbia, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by Federal or
State authority, or




     (2) a corporation or other Person organized and doing business under the laws of a
foreign government that is permitted to act as a Trustee pursuant to a rule, regulation, or
other order of the Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such foreign government or
a political subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustee,


having a combined capital and surplus of at least $50,000,000 and having a corporate trust office
in the Borough of Manhattan, the City of New York, or such other city as contemplated by Section
3.01 with respect to any series of Securities. If such corporation publishes reports of condition
at least annually, pursuant to law or to requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under the common control with the Company shall serve as Trustee for
the Securities. If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect hereunder
specified in this Article.









 









34




     SECTION 6.10. Resignation and Removal; Appointment of Successor.



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



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



     (c) The Holders of a majority in aggregate principal amount of the Securities of one or more
series (each series voting as a class) or all series at the time Outstanding may at any time remove
the Trustee with respect to the applicable series or all series, as the case may be, and by written
notice of such action to the Company, the Trustee and the successor Trustee, nominate with respect
to the applicable series or all series, as the case may be, a successor Trustee, which shall be
deemed appointed as successor Trustee with respect to the applicable series unless within ten days after such nomination the Company objects thereto, in which case the Trustee
so removed or any Holder of Securities of the applicable series who has been a bona fide holder of
a Security or the applicable series for at least six months may, subject to the provisions of
Section 5.09 on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to such series.



     (d) If at any time:




     (1) the Trustee shall fail to comply with Section 310(b) of the Trust Indenture Act
pursuant to Section 6.08 hereof after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months, unless the
Trustee’s duty to resign is stayed in accordance with the provisions of Section 310(b) of
the Trust Indenture Act, or




     (2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign
after written request therefor by the Company or by any such Holder, or




     (3) the Trustee shall become incapable of acting, or a decree or order for relief by a
court having jurisdiction in the premises shall have been entered in respect of the Trustee
in an involuntary case under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State, bankruptcy, insolvency or similar law; or a decree
or order by a court having jurisdiction in the premises for the appointment of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy or insolvency of the Trustee or
of its property, or for the winding up of its affairs shall have been entered, or




     (4) the Trustee shall commence a voluntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law, or shall consent to the appointment of a receiver or custodian









 



35



or liquidator or trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or corporate action shall be taken by the Trustee in furtherance
of any such action,


then, in any such case, (i) the Company by a Board Resolution may remove the Trustee, or (ii)
subject to Section 5.09, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




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



     (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.



     SECTION 6.11. Acceptance of Appointment by Successor.



     Every successor Trustee appointed hereunder 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 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, subject nevertheless to its lien, if any, provided for in
Section 6.07. Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.









 



36


     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 predecessor Trustee and each successor Trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not retiring shall continue
to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees, co-trustees of the same trust and that each 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.



     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.



     SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.



     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Security 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 6.13. Preferential Collection of Claims Against Company.



     (a) Subject to Subsection (b) of this Section, if the Trustee shall be or shall become a
creditor, directly or indirectly, secured or unsecured, of the Company within three months prior to
a default, as defined in Subsection (c) of this Section, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Securities and the holders
of other indenture securities, as defined in Subsection (c) of this Section:




     (1) an amount equal to any and all reductions in the amount due and owing upon any
claim as such creditor in respect of principal or interest, effected after the beginning of
such three-month period and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by or against the
Company upon the date of such default; and









 



37



     (2) all property received by the Trustee in respect of any claim as such creditor,
either as security therefor, or in satisfaction or composition thereof, or otherwise, after
the beginning of such three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of the Company and its
other creditors in such property or such proceeds.




Nothing herein contained, however, shall affect the right of the Trustee:




     (A) to retain for its own account (i) payments made on account of any such
claim by any Person (other than the Company) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the Trustee to a third Person,
and (iii) distributions made in cash, securities or other property in respect of
claims filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other Federal or State bankruptcy, insolvency or similar law;




     (B) to realize, for its own account, upon any property held by it as security
for any such claim, if such property was so held prior to the beginning of such
three-month period;




     (C) to realize, for its own account, but only to the extent of the claim
hereinafter or mentioned, upon any property held by it as security for any such
claim, if such claim was created after the beginning of such three-month period and
such property was received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable cause to believe that a
default as defined in Subsection (c) of this Section would occur within three
months; or




     (D) to receive payment on any claim referred to in paragraph (B) or (C),
against the release of any property held as security for such claim as provided in
paragraph (B) or (C), as the case may be, to the extent of the fair value of such
property.



     For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of
such three-month period for property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing
claim.



     If the Trustee shall be required to set aside and hold such a special account, the funds and
property held in such special account and the proceeds thereof shall be apportioned between the
Trustee, the Holders and the holders of other indenture securities in such manner that the Trustee,
the Holders and the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal









 



38

bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or
similar law, the same percentage of their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from the Company of the funds and property
in such special account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed against the Company
in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or State bankruptcy, insolvency or similar law, but after crediting
thereon receipts on account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from funds and property so held in such special account.
As used in this paragraph, with respect to any claim, the term “dividends” shall include any
distribution with respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar law, whether such distribution
is made in cash, securities, or other property, but shall not include any such distribution with
respect to the secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have jurisdiction (i) to apportion
between the Trustee and the Holders and the holders of other indenture securities, in accordance
with the provisions of this paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders and the holders of other indenture securities with respect
to their respective claims, in which event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provision of this paragraph as a
mathematical formula.




     Any Trustee which has resigned or been removed after the beginning of such three-month period
shall be subject to the provisions of this Subsection as though such resignation or removal had not
occurred. If any Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this Subsection if and only if the following
conditions exist:




     (i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-months period; and




     (ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.



     (b) There shall be excluded from the operation of Subsection (a) of this Section a creditor
relationship arising from:




     (1) the ownership or acquisition of securities issued under any indenture, or any
securities or securities having a maturity of one year or more at the time of acquisition by
the Trustee;









 



39



     (2) advances authorized by a receivership or bankruptcy court of competent
jurisdiction, or by this Indenture, for the purpose of preserving any property that shall at
any time be subject to the lien of this Indenture or of discharging
tax liens or other prior liens or encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;




     (3) disbursements made in the ordinary course of business in the capacity of trustee
under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;




     (4) an indebtedness created as a result of services rendered or premises rented; or an
indebtedness created as a result of goods or securities sold in a cash transaction as
defined in Subsection (c) of this Section;




     (5) the ownership of stock or of other securities of a corporation organized under the
provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company or an obligor under the Securities; or




     (6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of
exchange, acceptances or obligations that fall within the classification of self-liquidating
paper as defined in Subsection (c) of this Section.



     (c) For the purpose of this Section only:




     (1) The term “default” means any failure to make payment in full of the principal of or
interest on any of the Securities or upon the other indenture securities when and as such
principal or interest becomes due and payable.




     (2) The term “other indenture securities” means securities upon which the Company is an
obligor outstanding under any other indenture (i) under which the Trustee is also trustee,
(ii) which contains provisions substantially similar to the provisions of this Section, and
(iii) under which a default exists at the time of the apportionment of the funds and
property held in such special account.




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




     (4) The term “self-liquidating paper” means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously









 



40



with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or incurring of
the draft, bill of exchange, acceptance or obligation.




     (5) The term “Company” means any obligor upon the Securities.



     SECTION 6.14. Appointment of Authenticating Agent.



     At any time when any of the Securities remain Outstanding the Trustee may appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon exchange, transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times be a bank or trust
company or corporation organized and doing business and in good standing under the laws of the
United States of America, or of any State, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $1,500,000 and subject to supervision
or examination by Federal or State authorities. If such Authenticating Agent 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 Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in this Section.



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



     An Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice of termination to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company
and shall mail notice of such appointment to all Holders, as their names and addresses appear on
the Security Register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating









 



41

Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.




     The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.



     If an appointment is made pursuant to this Section, the Securities shall have endorsed
thereon, in addition to the Trustee’s Certificate, an alternate Trustee’s Certificate in the
following form:



     This is one of the Securities described in the within-mentioned Indenture.



	 	 	 	 	 	 	 
	 

	 	 	 	U.S. Bank National Association,	 	 
	 

	 	 	 	               as Trustee
	 	 
	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authenticating Agent	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Signatory	 	 






	 	 	 	 	 	 	 
	 

	 	Dated:	 	 	 	 
	 

	 	 	 	 

	 	 





ARTICLE SEVEN   



Holder’s Lists and Reports by Trustee and Company




     SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.



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




     (a) semi-annually (and not more than 15 days after each Regular Record Date of each
series of Securities having such a Regular Record Date), a list, in such form as the Trustee
may reasonable require, of the names and addresses of the Holders as of such Regular Record
Date, and




     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished,


excluding from any such list names and addresses received by the Trustee in the capacity of
Security Registrar if the Trustee is then acting in such capacity.










 



42




     SECTION 7.02. Preservation of Information; Communications to Holders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the Trustee in the capacity of
Security Registrar if the Trustee is then acting in such capacity. The Trustee may destroy any
list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.



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




     (i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or




     (ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.



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



     (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any Authenticating Agent nor any Paying
Agent nor any Security Registrar shall be held accountable by reason of









 



43

the disclosure of any such
information as to the names and addresses of the Holders in accordance with Section 7.02(b),
regardless of the source from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request made under Section
7.02(b).




     SECTION 7.03. Reports by Trustee.



     (a) Within 60 days after March 15 of each year commencing with the year 20___, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in the Security
Register, a brief report dated as of March 15 with respect to any of the following events which may
have occurred within the prior 12 months (but if no such event has occurred within such period no
report need be transmitted):




     (1) any change to its eligibility under Section 6.09 and its qualifications under
Section 6.08;




     (2) the creation of any material change to a relationship specified in Section
310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;




     (3) the character and amount of any advances (and if the Trustee elects so to state the
circumstances surrounding the making thereof) made by the Trustee (as such) that remain
unpaid on the date of such report, and for the reimbursement of which it claims or may claim
a lien or charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Outstanding Securities on the date of such report;




     (4) any change to the amount, interest rate and maturity date of all other indebtedness
owing by the Company (or by any other obligor on the Securities) to the Trustee in its
individual capacity, on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3), (4) or (6);




     (5) any change to the property and funds, if any, physically in the possession of the
Trustee as such on the date of such report;




     (6) any additional issue of Securities which the Trustee has not previously reported;
and




     (7) any action taken by the Trustee in the performance of its duties hereunder that it
has not previously reported and that in its opinion materially affects the Securities,
except action in respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 6.02.



     (b) The Trustee shall transmit by mail to all Holders, as their names and addresses appear in
the Security Register, a brief report with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding the making thereof)









 



44

made by the
Trustee (as such) since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities, on property or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or
less of the principal amount of the Outstanding Securities at such time, such report to be
transmitted within 90 days after such time.




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



     SECTION 7.04. Reports by Company.



     The Company will:




     (1) file with the Trustee, within 15 days after the Company files them with the
Commission, copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
provided, however, that the Company shall not be required to deliver to the Trustee any
materials for which the Company has sought and obtained confidential treatment from the
Commission; or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a
National Securities Exchange as may be prescribed from time to time in such rules and
regulations;




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




     (3) transmit by mail to all Holders, as their names and addresses appear in the
Security Registrar, within 30 days after the filing thereof with the Trustee, such summaries
of any information, documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.









 



45


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



ARTICLE EIGHT   



Consolidation, Merger, Sale, Conveyance or Lease




     SECTION 8.01. Consolidations and Mergers of Company and Conveyances Permitted Subject to
Certain Conditions.



     The Company shall not consolidate with or merge with or into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge into the Company or convey,
transfer or lease its properties and assets substantially as an entirety to the Company, unless:




     (1) in the event that the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a corporation organized and validly
existing under the laws of the United States of America, any State thereof or the District
of Columbia and, if the entity surviving such transaction or transferee entity is not the
Company, then such surviving or transferee entity shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all the Securities and the
performance of every covenant of this Indenture on the part of the Company to be performed
or observed;




     (2) at the time of consummation of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and




     (3) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.



     SECTION 8.02. Rights and Duties of Successor Corporation.



     Upon any consolidation or merger by the Company with or into any other corporation or any
conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety to any Person, in accordance with Section 8.01, the successor corporation formed by









 



46

such
consolidation or into which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor corporation had been named
as the Company herein, and thereafter, except in the case of a lease to another Person, the
predecessor corporation shall be relieved of all obligations and covenants under this Indenture and
the Securities.




     Such successor corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the
order of such successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall
deliver any Securities which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the execution hereof.



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



     SECTION 8.03. Officers’ Certificate and Opinion of Counsel.



     The Trustee, subject to the provisions of Section 6.01, shall be provided with an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale or conveyance, and any such assumption, complies with the provisions of this Article Eight.


ARTICLE NINE   



Supplemental Indentures




     SECTION 9.01. Supplemental Indentures without Consent of Holders. The Company, when
authorized by a Board Resolution, Guarantors, if any, when authorized by a Board Resolution,
Guarantors, if any, when authorized by a Board Resolution, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto for one or more of the
following purposes:




     (a) to evidence the succession of another corporation to the Company, or successive
successions, and the assumption by the successor corporation of the covenants, agreements
and obligations of the Company hereunder and the Securities or the Guarantees, if any; or




     (b) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities any property or assets which the Company may desire; or









 



47



     (c) to add to the covenants of the Company such further covenants, restrictions or
conditions for the protection of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities stating that such
covenants are expressly being included solely for the benefit of such series) as the Board
of Directors of the Company and the Trustee shall consider to be for the protection of the
Holders of such Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any of such additional covenants, restrictions or conditions a default or an
Event of Default permitting the enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided, however, that in respect of any such
additional covenant, restriction or condition such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default; or




     (d) to provide for the issuance under this Indenture of Securities in coupon form
(including Securities registrable as to principal only) and to provide for exchangeability of such Securities with the Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose; or




     (e) to establish the form or terms of Securities or the Guarantees, if any, of any
series as permitted by Sections 2.01 and 3.01; or




     (f) to cure any ambiguity or to correct or supplement any provision contained herein or
in any supplemental indenture that may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture that shall not adversely affect
the interests of any Holder in any material respect; or




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




     (h) to surrender any right or power herein conferred upon the Company;




     (i) to comply with the requirements of the Commission in order to maintain the
qualification of this Indenture under the Trust Indenture Act; or




     (j) to add or modify any other provisions with respect to matters or questions arising
under this Indenture which the Company and the Trustee may deem necessary or desirable;
provided, however, that such action pursuant to this clause (j) does not, in the good faith
opinion of the Board of Directors of the Company (as evidenced by a Board Resolution) and
the Trustee, adversely affect the interests of any Holder of Securities in any material
respect; or









 



48



     (k) to modify the covenants or Events of Default solely in respect of, or add new
covenants or Events of Default that apply solely to, Securities not Outstanding on the date
of such supplemental indenture; or




     (l) to provide for Guarantees of the Securities of any series and/or to specify the
ranking of the obligations of each Guarantor under its respective Guarantee.



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



     Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed
by the Company, the Guarantors, if any, and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 9.02.



     SECTION 9.02. Supplemental Indentures with Consent of Holders. With the consent (evidenced as
provided in Section 1.02) of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of each series affected by such supplemental indenture (each series
voting separately as a class), the Company, when authorized by a Board Resolution, the Guarantors,
if any, when authorized by a Board Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of any Security, or reduce the rate or change the
time of payment of interest thereon, or reduce the principal amount thereof or any premium thereon,
or make the principal thereof or interest or premium thereon payable in any coin or currency other
than that provided in the Securities or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the Maturity thereof
pursuant to Section 5.02 or the amount thereof provable in bankruptcy pursuant to Section 5.03 or
impair the right to institute suit for enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or adversely
affect the right of repayment, if any, at the option of the Holder without the consent of the
Holder of each Security so affected, (ii) reduce the aforesaid percentage of Securities, the
Holders of which are required to consent to any such supplemental indenture, or the Holders of
which are required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture, (iii) modify the
obligation of the Company to maintain an office or agency pursuant to Section 10.02, (iv) release
any Guarantor from its obligations under its Guarantee (other than in accordance with the terms
thereof) or (v) make any change in the subordination provisions hereof that would adversely affect
the Holders without the consent of the Holder of each Security so affected. A supplemental
indenture which changes or eliminates









 



49

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




     Upon the request of the Company, accompanied by a Board Resolution authorizing the execution
of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent
of Holders as aforesaid, the Trustee shall join with the Company and the Guarantors, if any, 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. 



     It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.



     SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any
supplemental indenture executed pursuant to the provisions of this Article Nine shall comply with
the Trust Indenture Act of 1939, as then in effect. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article Nine, this Indenture shall be deemed to be
modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company, and the
Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.



     SECTION 9.04. Notation on Securities. Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this Article Nine may bear a
notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee and delivered in exchange for the Securities
of such series then Outstanding.



     SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee.



     The Trustee, subject to the provisions of Section 6.01, shall be provided with an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article Nine.









 



50

ARTICLE TEN   



Covenants




     SECTION 10.01. Payment of Principal and Interest.



     The Company will duly and punctually pay or cause to be paid the principal of, premium, if
any, and interest, if any, on the Securities in accordance with the terms of the Securities and
this Indenture.



     SECTION 10.02. Maintenance of Office or Agency.



     The Company shall maintain an office or agency where Securities may be presented or
surrendered for payment and an office or agency where Securities may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office of the Trustee shall be such office of the
Company, and the Trustee shall be the agent of the Company for all of the foregoing purposes,
unless the Company shall designate and maintain some other office or agency for such purposes and
give the Trustee written notice of the location thereof. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or agency. If at any time
the Company shall fail to maintain any such required office or agency, the Corporate Trust Office
of the Trustee shall be conclusively deemed to be the agency of the Company for all such purposes.



     SECTION 10.03. Money for Security Payments to be Held in Trust.



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



     Whenever the Company shall have one or more Paying Agents it will, prior to 10:00 am on each
due date of the principal of or interest on, any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal or 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 or premium, if any, or
interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.



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




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









 



51



     (2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities) in the making of any payment of principal or premium, if any, or interest;
and




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



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.



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



     SECTION 10.04. Payment of Taxes and Other Claims.



     The Company will, and will cause any Significant Subsidiary to, promptly pay and discharge or
cause to be paid and discharged all material taxes, assessments and governmental charges or levies
lawfully imposed upon it or upon its income or profits or upon any of its property, real or
personal, or upon any part thereof, as well as all material claims for labor, materials and
supplies which, if unpaid, might by law become a lien or charge upon its property; provided,
however, that neither the Company nor any Significant Subsidiary shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge, levy, or claim if the
amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings and if the Company or such Significant Subsidiary, as the case may be,
shall have set aside on its books reserves deemed by it adequate with respect thereto.









 



52


     SECTION 10.05. Maintenance of Properties.



     The Company will maintain and keep its properties and every part thereof in such repair,
working order and condition, and make or cause to be made all such needful and proper repairs,
renewals and replacements thereto, as in the judgment of the Company are necessary in the interests
of the Company; provided, however, that nothing contained in this Section shall prevent the Company
from selling, abandoning or otherwise disposing of any of its properties or discontinuing a part of
its business from time to time if, in the judgment of the Company, such sale, abandonment,
disposition or discontinuance is advisable and does not materially adversely affect the interests
or business of the Company.



     SECTION 10.06. Statement as to Default.



     The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company (which as of the date hereof is December 31), an Officers’ Certificate stating that in
the course of the performance by the signers of their duties as Officers of the Company, they would
normally have knowledge of any failure by the Company to comply with all conditions, or any Default
by the Company with respect to any covenants, under this Indenture, and further stating whether or
not they have knowledge of any such failure or Default and, if so, specifying each such failure or
Default and the nature thereof. In the event an Officer of the Company comes to have actual
knowledge of a Default, regardless of the date, the Company shall deliver an Officers’ Certificate
to the Trustee specifying such Default and the nature and status thereof.



     SECTION 10.07. Corporate Existence.



     Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company determines that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.



     SECTION 10.08. Waiver of Certain Covenants.



     The Company may omit in any particular instance to comply with any covenant or condition set
forth in Section 10.04, 10.05 and 10.07 or any covenant added for the benefit of any series of
Securities as contemplated by Section 3.01, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Securities of such series at the time
Outstanding shall, by Act of such Holders, waive such compliance in such instance, but no such
waiver shall extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain in full force and
effect.









 



53


     SECTION 10.09. Calculation of Original Issue Discount.



     The Company shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily rates and accrual
periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time.



SECTION 10.10. Reports.




     (a) The Company shall deliver to the Trustee within 15 days after it files them 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 by rules and regulations
prescribe) which the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the
Trustee any materials for which the Company has sought and received confidential treatment by the
Commission. The Company also shall comply with the other provisions of Section 314(a) of the Trust
Indenture Act.



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



     (c) If at any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder of a Security, the Company will promptly furnish or cause to be furnished
to such Holder or to a prospective purchaser of such Security designated by such Holder, as the
case may be, the information, if any, required to be delivered by it pursuant to Rule 144A(d)(4)
under the Securities Act of 1933, as amended, to permit compliance with Rule 144A in connection
with the resale of such Security.


ARTICLE ELEVEN   



Redemption of Securities




     SECTION 11.01. Applicability of Article. The provisions of this Article shall be applicable
to the Securities of any series which are redeemable before their maturity except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.



     SECTION 11.02. Notice of Redemption; Selection of Securities. In case the Company shall
desire to exercise the right to redeem all, or, as the case may be, any part of the Securities of
any series in accordance with their terms, it shall fix a date for redemption and shall mail or
cause to be mailed a notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the Holders of Securities of such series so to be redeemed as a whole
or in part at their last addresses as the same appear on the Security Register. Such mailing shall
be by first class mail. The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice.









 



54

In any case,
failure to give such notice by mail or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.




     Each such notice of redemption shall include CUSIP numbers and specify the date fixed for
redemption, the redemption price at which Securities of such series are to be redeemed, the place
or places of payment, that payment will be made upon presentation and surrender of such Securities,
that any interest accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date any interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all the Securities of a series are to be redeemed the
notice of redemption shall specify the numbers of the Securities of that series to be redeemed. In
case any Security of a series is to be redeemed in part only, the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or Securities of that
series in principal amount equal to the unredeemed portion thereof will be issued.



     Prior to 10:00 am on the redemption date specified in the notice of redemption given as
provided in this Section 11.02, the Company will deposit with the Trustee or with one or more
paying agents an amount of money sufficient to redeem on the redemption date all the Securities or
portions thereof so called for redemption at the appropriate redemption price, together with
accrued interest to the date fixed for redemption.



     If all or less than all the Securities of a series are to be redeemed, the Company will give
the Trustee notice not less than 60 days prior to the redemption date as to the aggregate principal
amount of Securities to be redeemed and the Trustee shall select, in such manner as in its sole
discretion it shall deem appropriate, the Securities of that series or portions thereof (in
multiples of $1,000, except as otherwise set forth in the applicable form of Security) to be
redeemed.



     SECTION 11.03. Payment of Securities Called for Redemption. If notice of redemption has been
given as provided in Section 11.02 or Section 12.03, the Securities or portions of Securities of
the series with respect to which such notice has been given shall become due and payable on the
date and at the place or places stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after said date (unless the
Company shall default in the payment of such Securities at the applicable redemption price,
together with any interest accrued to said date) any interest on the Securities or portions of
Securities of any series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities at a place of payment in said notice specified, the said Securities or
the specified portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with any interest accrued thereon to the date fixed for redemption.



     Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new
Security or Securities of such series, of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.









 



55

ARTICLE TWELVE   



Sinking Funds




     SECTION 12.01. Applicability of Article. The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment”.



     SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with Securities. In lieu of
making all or any part of any mandatory sinking fund payment with respect to any Securities of a
series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series
theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal
amount of Securities of that series which have been previously delivered by the Trustee to the
Company which have been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities; 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 mandatory sinking fund
payment shall be reduced accordingly.



     SECTION 12.03. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each
sinking fund payment date for any series of Securities, the Company will deliver to the Trustee a
certificate signed by the Treasurer or any Assistant Treasurer of the Company specifying the amount
of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering or crediting Securities of that series pursuant to
Section 12.02 (which Securities will, if not previously delivered, accompany such certificate) and
whether the Company intends to exercise its right to make a permitted optional sinking fund
payment with respect to such series. Such certificate shall also state that no Event of Default
has occurred and is continuing with respect to such series. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date. In the case of
the failure of the Company to deliver such certificate (or to deliver the Securities specified in
this paragraph), the sinking fund payment due on the next succeeding sinking fund payment date for
that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount
of such Securities subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 12.02 and without the right to make any optional sinking
fund payment, if any, with respect to such series.



     Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made in cash which shall equal or









 



56

exceed $100,000 (or a lesser sum if the Company shall so request) with respect to the Securities of any particular
series shall be applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment
date following the date of such payment) to the redemption of such Securities at the Redemption
Price specified in such Securities for operation of the sinking fund together with accrued interest
to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the
Trustee to the redemption of Securities shall be added to the next cash sinking fund payment
received by the Trustee for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section 12.03. Any and all sinking fund moneys with respect
to the Securities of any particular series held by the Trustee on the last sinking fund payment
date with respect to Securities of such series and not held for the payment or redemption of
particular Securities shall be applied by the Trustee, together with other moneys, if necessary, to
be deposited sufficient for the purpose, to the payment of the principal of the Securities of that
series at maturity.




     The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in the last paragraph of Section 11.02 and the Company shall cause notice of the redemption thereof to be given in the manner provided in Section 11.02 except
that the notice of redemption shall also state that the Securities are being redeemed by operation
of the sinking fund. Such notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Section 11.03.



     Prior to 10:00 am on each sinking fund payment date, the Company shall pay to the Trustee in
cash a sum equal to any interest accrued to the date fixed for redemption of Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this Section.



     The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail any
notice of redemption of such Securities by operation of the sinking fund for such series during the
continuance of a default in payment of interest on such Securities or of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph) with respect to such
Securities, except that if the notice of redemption of any such Securities shall theretofore have
been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance
with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such default or Event of Default, be
held as security for the payment of such Securities; provided, however, that in case such Event of
Default or default shall have cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date for such Securities on which such moneys may be
applied pursuant to the provisions of this Section.


ARTICLE THIRTEEN   



Defeasance















 









57 




     SECTION 13.01. Applicability of Article. The provisions of this Article shall be applicable
to Securities of a series except as otherwise specified pursuant to Section 3.01 for Securities of
such series.



     SECTION 13.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations. At the
Company’s option, either (a) the Company shall be deemed to have been Discharged (as defined below)
from its obligations with respect to Securities of any series (“Legal Defeasance Option”) or (b)
the Company shall cease to be under any obligation to comply with any term, provision or condition
set forth in Sections 8.01, 10.04 and 10.05 with respect to Securities of any series (and, if so
specified pursuant to Section 3.01, any other obligation of the Company or restrictive covenant
added for the benefit of such series pursuant to Section 3.01) (“Covenant Defeasance Option”) at
any time after the applicable conditions set forth below have been satisfied:




     (1) the Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series (i) money in an amount, or
(ii) U.S. Government Obligations (as defined below) which through the payment of interest
and principal in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (iii) a combination of
(i) and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and premium, if any, and interest on, the
Outstanding Securities of such series on the dates such installments of interest or
principal and premium are due;




     (2) such deposit shall not cause the Trustee with respect to the Securities of that
series to have a conflicting interest as defined in Section 6.08 and for purposes of the
Trust Indenture Act with respect to the Securities of any series;




     (3) such deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;




     (4) no Event of Default or event (including such deposit) which, with notice or lapse
of time or both, would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such deposit and, with respect
to the legal defeasance option only, no Event of Default under Section 5.01(e) or event
which with the giving of notice or lapse of time, or both, would become an Event of Default
under Section 5.01(e) or Section 5.01(f) shall have occurred and be continuing on the 91st
day after such date; and




     (5) the Company shall have delivered to the Trustee an Opinion of Counsel or a ruling
from the Internal Revenue Service to the effect that the Holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance or Discharge.









 



58


     Notwithstanding the foregoing, if the Company exercises its covenant defeasance option and an
Event of Default under Section 5.01(e) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(e) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of the Company referred
to under the definition of covenant defeasance option with respect to such Securities shall be
reinstated.



     “Discharged” means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by, and obligations under, the Securities of such series and to have
satisfied all the obligations under this Indenture relating to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive, from the trust
fund described in clause (1) above, payment of the principal of (and premium, if any) and interest
on such Securities when such payments are due, (B) the Company’s obligations with respect to the
Securities of such series under Sections 3.05, 3.06, 3.07, 10.02 and 13.03 and to the Trustee under
Section 6.07 and (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.



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



     SECTION 13.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust. All
moneys and U.S. Government Obligations deposited with the Trustee pursuant to Section 13.02 in
respect of Securities of a series shall be held in trust and applied by it, in accordance with the
provisions of such Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Holders of such Securities, of all sums due and to become due thereon for principal (and
premium, if any) and interest, if any, but such money need not be segregated from other funds
except to the extent required by law.



     SECTION 13.04. Repayment to Company.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium or interest on any Security and remaining
unclaimed for two years after such principal and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the









 



59

Company) shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the
Company cause to be published once, in The New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid to the Company.




ARTICLE FOURTEEN   

SUBORDINATION




     SECTION 14.01. Agreement to Subordinate. The Company agrees, and each Holder by accepting a
Security agrees, that the payment of all obligations owing in respect of the Securities is
subordinated in right of payment, to the extent and in the manner provided in this Article
Fourteen, to the prior payment in full of all existing and future Senior Indebtedness of the
Company and that the subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness. The Securities shall in all respects rank pari passu in right of payment with
all existing and future Senior Subordinated Indebtedness of the Company, and will be senior in
right of payment to all existing and future Subordinated Indebtedness of the Company; and only
indebtedness of the Company that is Senior Indebtedness shall rank senior to the Securities in
accordance with the provisions set forth herein. All provisions of this Article Fourteen shall be
subject to Section 14.12.



     SECTION 14.02. Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution of the
assets of the Company to creditors upon a total or partial liquidation or a total or partial
dissolution of the Company or in a reorganization of or similar proceeding relating to the Company
or its property:



     (a) the holders of Senior Indebtedness of the Company shall be entitled to receive payment in
full in cash of such Senior Indebtedness before Holders shall be entitled to receive any payment;
and



     (b) until the Senior Indebtedness of the Company is paid in full in cash, any payment or
distribution to which Holders would be entitled but for the subordination provisions of this
Indenture shall be made to holders of such Senior Indebtedness as their interests may appear,
except that Holders may receive Permitted Junior Securities.



     SECTION 14.03. Default on Senior Indebtedness of the Company. The Company shall not pay
principal of, premium, if any, or interest on the Securities (or pay any other obligations relating
to the Securities, including additional interest, fees, costs, expenses, indemnities and rescission
or damage claims) or make any deposit pursuant to Article Four or Article Thirteen hereof and may
not purchase, redeem or otherwise retire any Securities (collectively, “pay the Securities”)
(except in the form of Permitted Junior Securities) if either of the following occurs (a “Payment
Default”):









 



60


     (a) any obligation on any Designated Senior Indebtedness of the Company is not paid in full in
cash when due (after giving effect to any applicable grace period); or



     (b) any other default on Designated Senior Indebtedness of the Company occurs and the maturity
of such Designated Senior Indebtedness is accelerated in accordance with its terms;


unless, in either case, the Payment Default has been cured or waived and any such acceleration has
been rescinded or such Designated Senior Indebtedness has been paid in full in cash; provided,
however, that the Company shall be entitled to pay the Securities without regard to the foregoing
if the Company and the Trustee receive written notice approving such payment from the
Representatives of all Designated Senior Indebtedness with respect to which the Payment Default has
occurred and is continuing.



During the continuance of any default (other than a Payment Default) (a “Non-Payment Default”) with
respect to any Designated Senior Indebtedness of the Company pursuant to which the maturity thereof
may be accelerated without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company shall not pay the
Securities (except in the form of Permitted Junior Securities) for a period (a “Payment Blockage
Period”) commencing upon the receipt by the Trustee (with a copy to the Company) of written notice
(a “Blockage Notice”) of such Non-Payment Default from the Representative of such Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter. So long as there shall remain outstanding any Senior Indebtedness under the Senior
Credit Facilities, a Blockage Notice may be given only by the administrative agent thereunder
unless otherwise agreed to in writing by the requisite lenders named therein. The Payment Blockage
Period shall end earlier if such Payment Blockage Period is terminated (i) by written notice to the
Trustee and the Company from the Person or Persons who gave such Blockage Notice; (ii) because the
default giving rise to such Blockage Notice is cured, waived or otherwise no longer continuing; or
(iii) because such Designated Senior Indebtedness has been discharged or repaid in full in cash.




     Notwithstanding the provisions described in the immediately preceding two sentences (but
subject to the provisions contained in the first sentence of this Section 14.03 and Section 14.02
hereof), unless the holders of such Designated Senior Indebtedness or the Representative of such
Designated Senior Indebtedness shall have accelerated the maturity of such Designated Senior
Indebtedness or a Payment Default has occurred and is continuing, the Company shall be entitled to
resume paying the Securities after the end of such Payment Blockage Period. The Securities shall
not be subject to more than one Payment Blockage Period in any consecutive 360-day period
irrespective of the number of defaults with respect to Designated Senior Indebtedness of the
Company during such period; provided that if any Blockage Notice is delivered to the Trustee by or
on behalf of the holders of Designated Senior Indebtedness of the Company (other than the holders
of indebtedness under the Senior Credit Facilities), a Representative of holders of indebtedness
under the Senior Credit Facilities may give another Blockage Notice within such period. However,
in no event shall the total number of days during which any Payment Blockage Period or Periods on
the Securities is in effect exceed 179 days in the aggregate during any consecutive 360-day period,
and there must be at least 181 days during any consecutive 360-day period during which no Payment
Blockage Period is in effect. Notwithstanding the foregoing, however, no default that existed or
was continuing on the date of









 



61

delivery of any Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Blockage Notice unless such default shall have been waived for a period of not less than
90 days (it being acknowledged that any subsequent action, or any breach of any financial covenants
during the period after the date of delivery of a Blockage Notice, that, in either case, would give
rise to a Non-Payment Default pursuant to any provisions under which a Non-Payment Default
previously existed or was continuing shall constitute a new Non-Payment Default for this purpose).




     SECTION 14.04. Acceleration of Payment of Securities. If payment of the Securities is
accelerated because of an Event of Default, the Company shall promptly notify the holders of the
Designated Senior Indebtedness of the Company or the Representative of such Designated Senior
Indebtedness of the acceleration; provided that any failure to give such notice shall have no
effect whatsoever on the provisions of this Article Fourteen. If any Designated Senior
Indebtedness of the Company is outstanding, the Company may not pay the Securities until five
Business Days after the Representatives of all the holders of such Designated Senior Indebtedness
receive notice of such acceleration and, thereafter, may pay the Securities only if this Indenture
otherwise permits payment at that time.



     SECTION 14.05. When Distribution Must Be Paid Over. If a distribution is made to Holders
that, due to the subordination provisions, should not have been made to them, such Holders are
required to hold it in trust for the holders of Senior Indebtedness of the Company and pay it over
to them as their interests may appear.



     SECTION 14.06. Subrogation. After all Senior Indebtedness of the Company is paid in full and
until the Securities are paid in full, Holders shall be subrogated to the rights of holders of such
Senior Indebtedness to receive distributions applicable to such Senior Indebtedness. A
distribution made under this Article Fourteen to holders of such Senior Indebtedness which
otherwise would have been made to Holders is not, as between the Company and Holders, a payment by
the Company on such Senior Indebtedness.



     SECTION 14.07. Relative Rights. This Article Fourteen defines the relative rights of Holders
and holders of Senior Indebtedness of the Company. Nothing in this Indenture shall:




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




     (b) prevent the Trustee or any Holder from exercising its available remedies upon a
Default, subject to the rights of holders of Senior Indebtedness of the Company to receive
payments or distributions otherwise payable to Holders and such other rights of such holders
of Senior Indebtedness as set forth herein; or




     (c) affect the relative rights of Holders and creditors of the Company other than their
rights in relation to holders of Senior Indebtedness.



     SECTION 14.08. Subordination May Not Be Impaired by Company. No right of any holder of Senior
Indebtedness of the Company to enforce the subordination of the indebtedness









 



62

evidenced by the Securities shall be impaired by any act or failure to act by the Company or
by their failure to comply with this Indenture.




     SECTION 14.09. Rights of Trustee and Paying Agent. Notwithstanding Section 14.03 hereof, the
Trustee or any Paying Agent may continue to make payments on the Securities and shall not be
charged with knowledge of the existence of facts that would prohibit the making of any payments
unless, not less than two Business Days prior to the date of such payment, a Responsible Officer of
the Trustee receives notice satisfactory to him that payments may not be made under this Article
Fourteen. The Company, the Security Registrar, the Paying Agent, a Representative or a holder of
Senior Indebtedness of the Company shall be entitled to give the notice; provided, however, that,
if an issue of Senior Indebtedness of the Company has a Representative, only the Representative
shall be entitled to give the notice.



     The Trustee in its individual or any other capacity shall be entitled to hold Senior
Indebtedness of the Company with the same rights it would have if it were not Trustee. The
Security Registrar and the Paying Agent shall be entitled to do the same with like rights. The
Trustee shall be entitled to all the rights set forth in this Article Fourteen with respect to any
Senior Indebtedness of the Company which may at any time be held by it, to the same extent as any
other holder of such Senior Indebtedness; and nothing in Article Six shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article Fourteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.07 hereof or any other Section of this
Indenture.



     SECTION 14.10. Distribution or Notice to Representative. Whenever a distribution is to be
made or a notice given to holders of Senior Indebtedness of the Company, the distribution may be
made and the notice given to their Representative (if any).



     SECTION 14.11. Article Fourteen Not to Prevent Events of Default or Limit Right to Accelerate.
The failure to make a payment pursuant to the Securities by reason of any provision in this
Article Fourteen shall not be construed as preventing the occurrence of a Default. Nothing in this
Article Fourteen shall have any effect on the right of the Holders or the Trustee to accelerate the
maturity of the Securities.



     SECTION 14.12. Trust Moneys Not Subordinated. Notwithstanding anything contained herein to
the contrary, payments from money or the proceeds of U.S. Government Obligations held in trust by
the Trustee for the payment of principal of and interest on the Securities pursuant to Article Four
or Article Thirteen hereof shall not be subordinated to the prior payment of any Senior
Indebtedness of the Company or subject to the restrictions set forth in this Article Fourteen, and
none of the Holders shall be obligated to pay over any such amount to the Company or any holder of
Senior Indebtedness of the Company or any other creditor of the Company, provided that the
subordination provisions of this Article Fourteen were not violated at the time the applicable
amounts were deposited in trust pursuant to Article Four or Article Thirteen hereof, as the case
may be.



     SECTION 14.13. Trustee Entitled to Rely. Upon any payment or distribution pursuant to this
Article Fourteen, the Trustee and the Holders shall be entitled to rely (a) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the nature referred to in









 



63

Section 14.02 hereof are pending, (b) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the Holders or (c) upon
the Representatives of Senior Indebtedness of the Company for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of such Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article Fourteen. In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior Indebtedness of the Company
to participate in any payment or distribution pursuant to this Article Fourteen, the Trustee shall
be entitled to request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article Fourteen, and, if such evidence is not furnished, the
Trustee shall be entitled to defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment. The provisions of Section 6.01 and Section 6.03
hereof shall be applicable to all actions or omissions of actions by the Trustee pursuant to this
Article Fourteen.




     SECTION 14.14. Trustee to Effectuate Subordination. A Holder by its acceptance of a Security
agrees to be bound by this Article Fourteen and authorizes and expressly directs the Trustee, on
his behalf, to take such action as may be necessary or appropriate to effectuate the subordination
between the Holders and the holders of Senior Indebtedness of the Company as provided in this
Article Fourteen and appoints the Trustee as attorney-in-fact for any and all such purposes.



     SECTION 14.15. Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the
Company and shall not be liable to any such holders if it shall mistakenly pay over or distribute
to Holders or the Company or any other Person, money or assets to which any holders of Senior
Indebtedness of the Company shall be entitled by virtue of this Article Fourteen or otherwise.



     SECTION 14.16. Reliance by Holders of Senior Indebtedness of the Company on Subordination
Provisions. Each Holder by accepting a Security acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a consideration to each
holder of any Senior Indebtedness of the Company, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.



     Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness of the Company may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders, without incurring responsibility to the Trustee or the
Holders and without impairing or releasing the subordination provided in this Article Fourteen or
the obligations hereunder of the Holders to the holders of the Senior Indebtedness of the Company,
do any one or more of the following: (a) change the manner, place or terms of









 



64

payment or extend the time of payment of, or renew or alter, Senior Indebtedness of the
Company, or otherwise amend or supplement in any manner Senior Indebtedness of the Company, or any
instrument evidencing the same or any agreement under which Senior Indebtedness of the Company is
outstanding; (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness of the Company; (c) release any Person liable in any manner
for the payment or collection of Senior Indebtedness of the Company; and (d) exercise or refrain
from exercising any rights against the Company and any other Person.




     SECTION 14.17. Defeasance. The terms of this Article Fourteen shall not apply to payments
from money or the proceeds of U.S. Government Obligations held in trust by the Trustee for the
payment of principal of and interest on the Securities pursuant to Sections 13.02 and 13.03.



ARTICLE FIFTEEN   

Guarantees




     SECTION 15.01. Applicability of Article. The provisions of this Article shall be applicable
to each of the Guarantors for the Guarantee of Securities of a series.



     SECTION 15.02. Guarantee. Each Guarantor of a particular series of Securities hereby
unconditionally guarantees (each such guarantee to be referred to herein as a “Guarantee”), jointly
and severally with each other Guarantor of the Securities of that series, if any, to each Holder of
such Securities authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture, such Securities or
the obligations of the Company hereunder or thereunder, (i) the due and punctual payment of the
principal of and any premium or interest on such Securities, whether at maturity or on an interest
payment date, by acceleration, pursuant to an offer to purchase such Securities or otherwise, and
interest on the overdue principal of and interest, if any, on such Securities, if lawful, and all
other obligations of the Company to the Holders of such Securities or the Trustee hereunder or
thereunder shall be promptly paid in full, all in accordance with the terms hereof and thereof
including all amounts payable to the Trustee under Section 6.07 hereof, and (ii) in case of any
extension of time of payment or renewal of any such Securities or any of such other obligations,
the same shall be promptly paid in full when due or to be performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or otherwise.



     If the Company fails to make any payment when due of any amount so guaranteed for whatever
reason, the Guarantor of the Securities of that series shall be obligated, jointly and severally
with each other Guarantor, if any, to pay the same immediately. Each Guarantor hereby agrees that
its obligations hereunder shall be continuing, absolute and unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of the Securities, this
Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of
the Securities or the Trustee with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of such Guarantor. Each Guarantor
hereby waives diligence, presentment, demand of payment, demand









 



65

of performance, filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, the benefit of discussion,
protest, notice and all demand whatsoever and covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in the Securities guaranteed by such
Guarantee, in this Indenture and in this Article Fifteen. If any Holder of Securities of a series
guaranteed hereby or the Trustee is required by any court or otherwise to return to the Company or
any Guarantor of such Securities, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or any Guarantor, any amount paid by the Company or any Guarantor
of such Securities to the Trustee or such Holder, this Article Fifteen, to the extent theretofore
discharged with respect to any Guarantee of such Securities, shall be reinstated in full force and
effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders of Securities of a series guaranteed hereby by such Guarantor in respect of
any obligations guaranteed hereby by such Guarantee until payment in full of all such obligations.
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders of
Securities of a series guaranteed hereby by such Guarantor and the Trustee on the other hand, (i)
the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five
hereof for the purposes of such Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (ii)
in the event of any acceleration of such obligations as provided in Article Five hereof such
obligations (whether or not due and payable) shall forthwith become due and payable by such
Guarantor, jointly and severally with any other Guarantor of such Securities, for the purpose of
this Article Fifteen. In addition, without limiting the foregoing, upon the effectiveness of an
acceleration under Article Five, the Trustee may make a demand for payment on the Securities under
any Guarantee provided hereunder and not discharged.




     With respect to each Guarantee by a Guarantor, such Guarantor shall be subrogated to all
rights of the Holder of any Securities guaranteed hereby by such Guarantee against the Company in
respect of any amounts paid to such Holder by such Guarantor pursuant to the provisions of such
Guarantee; provided that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of and interest on all
such Securities shall have been paid in full.



     The Guarantee set forth in this Section 15.02 shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on such Security shall
have been signed by the Trustee or any duly appointed agent.



     The Guarantees provided in this Section 15.02 shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on such Security shall
have been signed by the Trustee or any duly appointed agent.



     SECTION 15.03. Obligations of the Guarantor Unconditional. Nothing contained in this Article
Fifteen or elsewhere in this Indenture or in any Security is intended to or shall impair, as
between a Guarantor and the Holders of the Securities guaranteed by such Guarantor’s Guarantee, the
obligations of such Guarantor, which are absolute and unconditional, to pay to such Holders the
principal of and interest on the as and when the same shall become due and payable in accordance
with the provisions of this Guarantee or is intended to or shall affect the









 



66

relative rights of such Holders and creditors of such Guarantor, nor shall anything herein or
therein prevent the Trustee or such Holder from exercising all remedies otherwise permitted by
applicable law upon Default under this Indenture in respect of cash, property or securities of such
Guarantor received upon the exercise of any such remedy;




     Upon any distribution of assets of a Guarantor referred to in this Article Fifteen, the
Trustee, subject to the provisions of Sections 6.01 and 6.02, and the Holders of the Securities
guaranteed hereby by such Guarantor shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating trustee or agent or
other person making any distribution to the Trustee or to such Holders, for the purpose of
ascertaining the persons entitled to participate in such distribution, the holders of other
indebtedness of such Guarantor, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article Fifteen.



     SECTION 15.04. Article Fifteen Not To Prevent Events of Default. The failure to make a
payment on account of principal or interest on the Securities of any series by reason of any
provision in this Article Fifteen shall not be construed as preventing the occurrence of an Event
of Default under Section 5.01.



     SECTION 15.05. Execution and Delivery of Guarantee. To evidence a Guarantee set forth in this
Article Fifteen, the Guarantor hereby agrees that the Guarantee Notation, substantially in the form
of Exhibit B hereto, shall be endorsed on each Security authenticated and delivered by the Trustee
that is guaranteed by such Guarantee and that this Indenture shall be executed on behalf of such
Guarantor by its Chairman of the Board, its President or one of its Vice Presidents under a
facsimile of its seal reproduced thereon.



     Each Guarantor hereby agrees that its Guarantee shall remain in full force and effect
notwithstanding any failure to endorse the Guarantee Notation on each such Security.



     If an officer whose signature is on this Indenture or on the Securities guaranteed hereby no
longer holds that office at the time the Trustee authenticates the Security on which a notation of
the Guarantee is endorsed, such Guarantee shall be valid nevertheless.



     The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of each Guarantee thereof.



ARTICLE SIXTEEN   

Subordination of Guarantees




     SECTION 16.01. Agreement to Subordinate. Each Guarantor agrees, and each Holder by accepting
a Security agrees, that the obligations of such Guarantor under its Guarantee are subordinated in
right of payment, to the extent and in the manner provided in this Article Sixteen, to the prior
payment in full of all existing and future Senior Indebtedness of such Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such Senior Indebtedness. A
Guarantor’s obligations under its Guarantee shall in all respects rank pari passu in right of
payment with all existing and future Senior Subordinated Indebtedness of such Guarantor, and will
be senior in right of payment to all existing and future Subordinated









 



67

Indebtedness of such Guarantor; and only indebtedness of such Guarantor that is Senior
Indebtedness shall rank senior to the obligations of such Guarantor under its Guarantee in
accordance with the provisions set forth herein. All provisions of this Article Sixteen shall be
subject to Section 16.12.




     SECTION 16.02. Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution of the
assets of a Guarantor to creditors upon a total or partial liquidation or a total or partial
dissolution of such Guarantor or in a reorganization of or similar proceeding relating to such
Guarantor or its property:




     (a) the holders of Senior Indebtedness of such Guarantor shall be entitled to receive
payment in full in cash of such Senior Indebtedness before Holders shall be entitled to
receive any payment; and




     (b) until the Senior Indebtedness of such Guarantor is paid in full in cash, any
payment or distribution to which Holders would be entitled but for the subordination
provisions of this Indenture shall be made to holders of such Senior Indebtedness as their
interests may appear, except that Holders may receive Permitted Junior Securities.



     SECTION 16.03. Default on Senior Indebtedness of a Guarantor. A Guarantor shall not make any
payment pursuant to its Guarantee (or pay any other obligations relating to its Guarantee,
including additional interest, fees, costs, expenses, indemnities and rescission or damage claims)
and may not purchase, redeem or otherwise retire any Securities (collectively, “pay its Guarantee”)
(except in the form of Permitted Junior Securities) if either of the following occurs (a “Guarantor
Payment Default”):




     (a) any obligation on any Designated Senior Indebtedness of such Guarantor is not paid
in full in cash when due (after giving effect to any applicable grace period); or




     (b) any other default on Designated Senior Indebtedness of such Guarantor occurs and
the maturity of such Designated Senior Indebtedness is accelerated in accordance with its
terms;


unless, in either case, the Guarantor Payment Default has been cured or waived and any such
acceleration has been rescinded or such Designated Senior Indebtedness has been paid in full in
cash; provided, however, that such Guarantor shall be entitled to pay its Guarantee without regard
to the foregoing if such Guarantor and the Trustee receive written notice approving such payment
from the Representatives of all Designated Senior Indebtedness with respect to which the Guarantor
Payment Default has occurred and is continuing.




     During the continuance of any default (other than a Guarantor Payment Default) (a
“Non-Guarantor Payment Default”) with respect to any Designated Senior Indebtedness of a Guarantor
pursuant to which the maturity thereof may be accelerated without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any applicable grace
periods, such Guarantor shall not pay its Guarantee (except in the form of Permitted Junior
Securities) for a period (a “Guarantee Payment Blockage Period”) commencing upon the receipt by the
Trustee (with a copy to such Guarantor and the Company) of written notice (a “Guarantee Blockage
Notice”) of such Non-Guarantor Payment Default from the Representative of such









 



68

Designated Senior Indebtedness specifying an election to effect a Guarantee Payment Blockage
Period and ending 179 days thereafter. So long as there shall remain outstanding any Senior
Indebtedness under the Senior Credit Facilities, a Guarantee Blockage Notice may be given only by
the administrative agent thereunder unless otherwise agreed to in writing by the requisite lenders
named therein. The Guarantee Payment Blockage Period shall end earlier if such Guarantee Payment
Blockage Period is terminated (i) by written notice to the Trustee, the relevant Guarantor and the
Company from the Person or Persons who gave such Guarantee Blockage Notice; (ii) because the
default giving rise to such Guarantee Blockage Notice is cured, waived or otherwise no longer
continuing; or (iii) because such Designated Senior Indebtedness has been discharged or repaid in
full in cash. Notwithstanding the provisions described in the immediately preceding two sentences
(but subject to the provisions contained in the first sentence of this Section 16.03 and Section
16.02 hereof), unless the holders of such Designated Senior Indebtedness or the Representative of
such Designated Senior Indebtedness shall have accelerated the maturity of such Designated Senior
Indebtedness or a Guarantor Payment Default has occurred and is continuing, the relevant Guarantor
shall be entitled to resume paying its Guarantee after the end of such Guarantee Payment Blockage
Period. Each Guarantee shall not be subject to more than one Guarantee Payment Blockage Period in
any consecutive 360-day period irrespective of the number of defaults with respect to Designated
Senior Indebtedness of the relevant Guarantor during such period; provided that if any Guarantee
Blockage Notice is delivered to the Trustee by or on behalf of the holders of Designated Senior
Indebtedness of such Guarantor (other than the holders of indebtedness under the Senior Credit
Facilities), a Representative of holders of indebtedness under the Senior Credit Facilities may
give another Guarantee Blockage Notice within such period. However, in no event shall the total
number of days during which any Guarantee Payment Blockage Period or Periods on a Guarantee is in
effect exceed 179 days in the aggregate during any consecutive 360-day period, and there must be at
least 181 days during any consecutive 360-day period during which no Guarantee Payment Blockage
Period is in effect. Notwithstanding the foregoing, however, no default that existed or was
continuing on the date of delivery of any Guarantee Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Guarantee Blockage Notice unless such default shall have been
waived for a period of not less than 90 days (it being acknowledged that any subsequent action, or
any breach of any financial covenants during the period after the date of delivery of a Guarantee
Blockage Notice, that, in either case, would give rise to a Non-Guarantor Payment Default pursuant
to any provisions under which a Non-Guarantor Payment Default previously existed or was continuing
shall constitute a new Non-Guarantor Payment Default for this purpose).




     SECTION 16.04. Demand for Payment. If payment of the Securities is accelerated because of an
Event of Default and a demand for payment is made on a Guarantor pursuant to Article Fifteen
hereof, the Company or such Guarantor shall promptly notify the holders of the Designated Senior
Indebtedness of such Guarantor or the Representative of such Designated Senior Indebtedness of such
demand; provided that any failure to give such notice shall have no effect whatsoever on the
provisions of this Article Sixteen. If any Designated Senior Indebtedness of a Guarantor is
outstanding, such Guarantor may not pay its Guarantee until five Business Days after the
Representatives with respect to such Designated Senior Indebtedness receive notice of such
acceleration and, thereafter, may pay its Guarantee only if this Indenture otherwise permits
payment at that time.









 



69


     SECTION 16.05. When Distribution Must Be Paid Over. If a distribution is made to Holders
that, due to the subordination provisions, should not have been made to them, such Holders are
required to hold it in trust for the holders of Senior Indebtedness of the relevant Guarantor and
pay it over to them as their interests may appear.



     SECTION 16.06. Subrogation. After all Senior Indebtedness of a Guarantor is paid in full and
until the Securities are paid in full, Holders shall be subrogated to the rights of holders of such
Senior Indebtedness to receive distributions applicable to such Senior Indebtedness. A
distribution made under this Article Sixteen to holders of such Senior Indebtedness which otherwise
would have been made to Holders is not, as between the relevant Guarantor and Holders, a payment by
such Guarantor on such Senior Indebtedness.



     SECTION 16.07. Relative Rights. This Article Sixteen defines the relative rights of Holders
and holders of Senior Indebtedness of a Guarantor. Nothing in this Indenture shall:




     (a) impair, as between such Guarantor and Holders, the obligation of such Guarantor,
which is absolute and unconditional, to make payments under its Guarantee in accordance with
its terms;




     (b) prevent the Trustee or any Holder from exercising its available remedies upon a
default by such Guarantor under its obligations with respect to its Guarantee, subject to
the rights of holders of Senior Indebtedness of such Guarantor to receive payments or
distributions otherwise payable to Holders and such other rights of such holders of Senior
Indebtedness as set forth herein; or




     (c) affect the relative rights of Holders and creditors of such Guarantor other than
their rights in relation to holders of Senior Indebtedness.



     SECTION 16.08. Subordination May Not Be Impaired by a Guarantor. No right of any holder of
Senior Indebtedness of a Guarantor to enforce the subordination of the obligations of such
Guarantor under its Guarantee shall be impaired by any act or failure to act by such Guarantor or
by its failure to comply with this Indenture.



     SECTION 16.09. Rights of Trustee and Paying Agent. Notwithstanding Section 16.03 hereof, the
Trustee or any Paying Agent may continue to make payments on the Securities and shall not be
charged with knowledge of the existence of facts that would prohibit the making of any payments
unless, not less than two Business Days prior to the date of such payment, a Responsible Officer of
the Trustee receives notice satisfactory to him that payments may not be made under this Article
Sixteen. A Guarantor, the Security Registrar, the Paying Agent, a Representative or a holder of
Senior Indebtedness of such Guarantor shall be entitled to give the notice; provided, however,
that, if an issue of Senior Indebtedness of such Guarantor has a Representative, only the
Representative shall be entitled to give the notice.



     The Trustee in its individual or any other capacity shall be entitled to hold Senior
Indebtedness of a Guarantor with the same rights it would have if it were not Trustee. The
Security Registrar and the Paying Agent shall be entitled to do the same with like rights. The
Trustee shall be entitled to all the rights set forth in this Article Sixteen with respect to any
Senior Indebtedness of a Guarantor which may at any time be held by it, to the same extent as









 



70

any other holder of such Senior Indebtedness; and nothing in Article Six shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article Sixteen shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.07 hereof or any other Section of
this Indenture.




     SECTION 16.10. Distribution or Notice to Representative. Whenever a distribution is to be
made or a notice given to holders of Senior Indebtedness of a Guarantor, the distribution may be
made and the notice given to their Representative (if any).



     SECTION 16.11. Article Sixteen Not to Prevent Events of Default or Limit Right to Demand
Payment. The failure of a Guarantor to make a payment pursuant its Guarantee by reason of any
provision in this Article Sixteen shall not be construed as preventing the occurrence of a default
by such Guarantor under its Guarantee. Nothing in this Article Sixteen shall have any effect on
the right of the Holders or the Trustee to make a demand for payment on a Guarantor pursuant to
Article Sixteen hereof.



     SECTION 16.12. Trust Moneys Not Subordinated. Notwithstanding anything contained herein to
the contrary, payments from money or the proceeds of U.S. Government Obligations held in trust by
the Trustee for the payment of principal of and interest on the Securities pursuant to Article Four
or Article Thirteen hereof shall not be subordinated to the prior payment of any Senior
Indebtedness of any Guarantor or subject to the restrictions set forth in this Article Sixeen, and
none of the Holders shall be obligated to pay over any such amount to such Guarantor or any holder
of Senior Indebtedness of such Guarantor or any other creditor of such Guarantor, provided that the
subordination provisions of this Article Sixteen were not violated at the time the applicable
amounts were deposited in trust pursuant to Article Four or Article Thirteen hereof, as the case
may be.



     SECTION 16.13. Trustee Entitled to Rely. Upon any payment or distribution pursuant to this
Article Sixteen, the Trustee and the Holders shall be entitled to rely (a) upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature referred to in Section
16.02 hereof are pending, (b) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Holders or (c) upon the
Representatives of Senior Indebtedness of a Guarantor for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such Senior Indebtedness
and other indebtedness of such Guarantor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to this Article
Sixteen. In the event that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of a Guarantor to participate
in any payment or distribution pursuant to this Article Sixteen, the Trustee shall be entitled to
request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and other facts pertinent to the rights of such
Person under this Article Sixteen, and, if such evidence is not furnished, the Trustee shall be
entitled to defer any payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Section 6.01 and Section 6.03 hereof shall be
applicable to all actions or omissions of actions by the Trustee pursuant to this Article Sixteen.









 



71


     SECTION 16.14. Trustee to Effectuate Subordination. A Holder by its acceptance of a Security
agrees to be bound by this Article Sixteen and authorizes and expressly directs the Trustee, on his
behalf, to take such action as may be necessary or appropriate to effectuate the subordination
between the Holders and the holders of Senior Indebtedness of a Guarantor as provided in this
Article Sixteen and appoints the Trustee as attorney-in-fact for any and all such purposes.



     SECTION 16.15. Trustee Not Fiduciary for Holders of Senior Indebtedness of Guarantors. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of a
Guarantor and shall not be liable to any such holders if it shall mistakenly pay over or distribute
to Holders or such Guarantor or any other Person, money or assets to which any holders of Senior
Indebtedness of such Guarantor shall be entitled by virtue of this Article Sixteen or otherwise.



     SECTION 16.16. Reliance by Holders of Senior Indebtedness of a Guarantor on Subordination
Provisions. Each Holder by accepting a Security acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a consideration to each
holder of any Senior Indebtedness of a Guarantor, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.



     Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness of a Guarantor may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders, without incurring responsibility to the Trustee or the
Holders and without impairing or releasing the subordination provided in this Article Sixteen or
the obligations hereunder of the Holders to the holders of the Senior Indebtedness of such
Guarantor, do any one or more of the following: (a) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Indebtedness of such Guarantor, or
otherwise amend or supplement in any manner Senior Indebtedness of such Guarantor, or any
instrument evidencing the same or any agreement under which Senior Indebtedness of such Guarantor
is outstanding; (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Indebtedness of such Guarantor; (c) release any Person liable in any
manner for the payment or collection of Senior Indebtedness of such Guarantor; or (d) exercise or
refrain from exercising any rights against such Guarantor and any other Person.



ARTICLE SEVENTEEN   




Miscellaneous




     SECTION 17.01. Form of Documents Delivered to Trustee.



     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only









 



72

one document, but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.




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



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



     SECTION 17.02. Notices.



     Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others’ address.



	 	 	 	 	 
	 	 	If to the Company and/or any Subsidiary Guarantor:
	 
	 	 	 	 
	 

	 	 	 	Peabody Energy Corporation
	 

	 	 	 	701 Market Street
	 

	 	 	 	St. Louis, Missouri 63101-1826
	 

	 	 	 	Telecopier No.: (314) 342-3419
	 

	 	 	 	Attention: Chief Legal Officer
	 
	 	 	 	 
	 	 	With a copy to:
	 
	 	 	 	 
	 

	 	 	 	Simpson Thacher & Bartlett LLP
	 

	 	 	 	425 Lexington Avenue
	 

	 	 	 	New York, New York 10017-3954
	 

	 	 	 	Telecopier No. (212) 455-2502
	 

	 	 	 	Attention: Risë B. Norman, Esq.
	 
	 	 	 	 
	 	 	If to the Trustee:
	 
	 	 	 	 
	 

	 	 	 	U.S. Bank National Association
	 

	 	 	 	Goodwin Square
	 

	 	 	 	225 Asylum Street, 23rd Floor
	 

	 	 	 	EX-CT-SS












 



73


	 	 	 	 	 
	 

	 	 	 	Hartford, Connecticut 06103
	 

	 	 	 	Telecopier No.: (860) 241-6881






     The Company, any Subsidiary Guarantor or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.



     All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery; provided, however, that any notice of
communication to the Trustee shall not be deemed to be received by it until actually received by it
at the Corporate Trust Office of the Trustee.



     Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Security Registrar. Any notice or communication
shall also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.



     If a notice or communication addressed to a party other than the Trustee is mailed in the
manner provided above within the time prescribed, it is duly given, whether or not the addressee
receives it.



     If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.



     SECTION 17.03. Notice to Holders; Waiver.



     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.



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









 



74


     SECTION 17.04. Trust Indenture Act Controls.



     If any provision hereof limits, qualifies or conflicts with the duties imposed by any of
Section 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section
318(c) thereof, such imposed duties shall control.



     SECTION 17.05. Certificate and Opinion as to Conditions Precedent.



     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall, upon the request of the Trustee, furnish to the
Trustee:




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 17.06 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 17.06 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants, if any, have been
satisfied, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or opinion
need be furnished.



     SECTION 17.06. Statements Required in Certificate or Opinion.



     Each certificate (other than certificates provided pursuant to Section 10.06) or opinion with
respect to compliance with a condition or covenant provided for in this Indenture shall include:




     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




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




     (3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




     (4) a statement as to whether, in the opinion of such Person, such condition or
covenant has been satisfied.









 



75


     SECTION 17.07. Table of Contents, Headings, etc..



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



     SECTION 17.08. Successors and Assigns.



     All covenants and agreements in this Indenture by the Company and the Securities shall bind
its successors and assigns, whether so expressed or not. All covenants and agreements in this
Indenture by the Trustee and the Securities shall bind its successors and assigns, whether so
expressed or not



     SECTION 17.09. Separability Clause.



     In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, then, to the extent permitted by applicable law, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.



     SECTION 17.10. Benefits of Indenture.



     Nothing in this Indenture or in the Securities, express or implied, shall give to any Person
(other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent,
and their successors hereunder, and the Holders of Securities) any benefit or any legal or
equitable right, remedy or claim under this Indenture.



     SECTION 17.11. Rules by Trustee and Agents.



     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Security
Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its
functions.



     SECTION 17.12. No Personal Liability of Directors, Officers, Employees and Stockholders.



     No past, present or future director, officer, employee, incorporator or stockholder of the
Company or any Guarantor or Person controlling such Persons, as such, shall have any liability for
any obligations of the Company or of the Guarantors or any Person controlling such Person under the
Securities, this Indenture, the Guarantees or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Securities by accepting a Security
waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver is against public
policy.



     SECTION 17.13. Governing Law.









 



76


     THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE
SECURITIES AND THE GUARANTEES.



     SECTION 17.14. Legal Holidays.



     In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture
or the Security) payment of interest or principal need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.



     SECTION 17.15. Indenture and Securities Solely Corporate Obligations.



     No recourse for the payment of principal of or interest on any Security or for any claim based
on any Security or this Indenture shall be had against any director or officer or stockholder,
past, present or future, of the Company or any other obligor with respect to the Securities. Any
such claim against any such Person is expressly waived as a condition of, and as consideration for,
the execution and delivery of this Indenture and the issue of the Securities.



     SECTION 17.16. No Security Interest Created.



     Nothing in this Indenture or in the Securities, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect, in any jurisdiction where property of the Company or its
Subsidiaries is located.



     SECTION 17.17. Counterpart Originals.



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



     SECTION 17.18. No Adverse Interpretation of Other Agreements.



     This Indenture may not be used to interpret any other Indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such Indenture, loan or debt agreement may
not be used to interpret this Indenture.



*      *      *      *      *      *





 









 









77




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



     In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.



	 	 	 	 	 
	 	peabody energy corporation

 	 
	 	By:  	
 	 
	 	 	Name 	 
	 	 	Title 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name 	 
	 	 	Title 	 
	 
	 	u.s. bank national association

 	 
	 	By:  	
 	 
	 	 	Name 	 
	 	 	Title 	 
	 










 






EXHIBIT A




(Face of Note)




___% Senior Subordinated Notes due 20___




	 	 	 
	 

	 	CUSIP ___
	 

	 	  ISIN ___
	No.

	 	     $






PEABODY ENERGY CORPORATION



promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of                     Dollars ($                    
) on                     , 20___.



Interest Payment Dates:                      and                     .



Record Dates:                      and                     .



Dated:                     , 20___.










 



A-2

IN WITNESS WHEREOF, the Company has caused this instrument to be signed manually or by facsimile by
its duly authorized officer.




	 	 	 	 	 
	 	PEABODY ENERGY CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title 	 
	 



This is one of the [Global]

Securities referred to in the

within-mentioned Indenture:




U.S. Bank National Association

as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






Dated                     , 20___










 



A-3


(Back of Note)




___% Senior Subordinated Notes due 20___



[Insert the Global Note Legend, if applicable, pursuant to the terms of the Indenture.]



Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.




     1. Interest. Peabody Energy Corporation, a Delaware corporation (the “Company”), promises to
pay interest on the principal amount of this Security at ___% per annum from                     , 20___until
maturity. The Company will pay interest semi-annually on                      and                      of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each an “Interest
Payment Date”). Interest on the Securities will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from                     , 20___; provided that if there is no
existing Default in the payment of interest, and if this Security is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be                     , 20___. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from
time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace periods) from time to time
on demand at the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.



     2. Method of Payment. The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered Holders of Securities at the close of business on the
                     or                      next preceding the Interest Payment Date (except as provided in Section
3.08 of the Base Indenture (as defined below) with respect to defaulted interest), even if such
Securities are canceled after such record date and on or before such Interest Payment Date. The
Securities will be payable as to principal, premium, if any, and interest at the office or agency
of the Company maintained for such purpose within or without the City and State of New York, or, at
the option of the Company, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and interest, premium on
all Global Securities and all other Securities the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts.



     3. Paying
Agent and Registrar. Initially, U.S. Bank National Association, the Trustee under
the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.









 



A-4


     4. Indenture. The Company issued the Securities under the ___Supplemental Indenture dated
as of                     
, 20___to a Base Indenture dated as of                     , 20___(the “Base Indenture” and,
collectively, the “Indenture”) between the Company and the Trustee. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Securities are subject
to all such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Security conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The Securities are
obligations of the Company.



     5. The principal on the Securities shall be due and payable on                     , 20___.



     6. [Optional Redemption.] [Insert applicable language, if any.]



     7. [Mandatory Redemption.] The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Securities.



     8. [Repurchase at Option of Holder.] [Insert applicable language, if any.]



     9. Notice of Redemption. If applicable, notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each Holder whose Securities are to be
redeemed at its registered address. Securities in denominations larger than $1,000 may be redeemed
in part but only in whole multiples of $1,000, unless all of the Securities held by a Holder are to
be redeemed. On and after the redemption date interest ceases to accrue on Securities or portions
thereof called for redemption.



     10. Denominations, Transfer, Exchange. The Securities are in registered form without coupons
in denominations of $1,000 and integral multiples of $1,000. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture.



     11. Subordination. The Securities and the Guarantees are subordinated to Senior Indebtedness
of the Company and the Guarantors on the terms and subject to the conditions set forth in the
Indenture. To the extent provided in the Indenture, Senior Indebtedness must be paid before the
Securities and Guarantees may be paid. The Company agrees, and each Holder by accepting a Security
agrees, to the subordination provisions contained in the Indenture and authorizes the Trustee to
give it effect and appoints the Trustee as attorney-in-fact for such purpose.



     12. Persons Deemed Owners. The registered Holder of a Security may be treated as its owner for
all purposes.



     13. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture, the
Guarantees or the Securities may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the then outstanding Securities, voting as a single class,
and any existing default or compliance with any provision of the Indenture, the









 



A-5

Guarantees or the Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities, voting as a single class. Without the consent
of any Holder of a Security, the Indenture, the Guarantees or the Securities may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Securities in addition to or in place of certificated Securities, to provide for the assumption of
the Company’s or Guarantor’s obligations to Holders of the Securities in case of a merger or
consolidation, to make any change that would provide any additional rights or benefits to the
Holders of the Securities or that does not adversely affect the legal rights under the Indenture of
any such Holder, to comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act, to provide for the issuance of
additional Securities in accordance with the limitations set forth in the Indenture, or to allow
any Guarantor to execute a supplemental indenture to the Indenture and/or a Guarantee with respect
to the Securities.




     14. Defaults and Remedies. An “Event of Default” occurs if: (i) the Company defaults in the
payment when due of interest on, with respect to, the Securities and such default continues for a
period of 30 days (whether or not prohibited by the subordination provisions of the Indenture);
(ii) the Company defaults in the payment when due of principal of or premium, if any, on the
Securities when the same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise (whether or not prohibited by the subordination
provisions of the Indenture); (iii) the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in the Indenture or the Securities for 60 days after
written notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding voting as a single class; (iv) certain events of
bankruptcy or insolvency occur with respect to the Company or any of its Significant Subsidiaries;
or (v) except as permitted by the Indenture, any Guarantee is held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations
under such Guarantor’s Guarantee. [Insert additional Events of Default, if any.]



     If any Event of Default (other than an Event of Default specified in Section 5.01(e) of the
Base Indenture with respect to the Company [insert additional carveouts, if any]) occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding
Securities may declare all the Securities to be due and payable immediately. Upon any such
declaration, the Securities shall become due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (e) of Section 5.01 of the Base Indenture
[insert additional provisions, if any] occurs with respect to the Company, all outstanding
Securities shall be due and payable without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Securities by written notice to the Trustee may
on behalf of all of the Holders rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of Default (except
nonpayment of principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived



     15. Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its









 



A-6



Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.



     16. No Recourse Against Others. A director, officer, employee, incorporator or stockholder, of
the Company, as such, shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the Securities.



     17. Authentication. This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.



     18. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).



     19. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the
Securities and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Securities or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:




Peabody Energy Corporation

701 Market Street

St. Louis, Missouri 63101-1826

Attention: Chief Legal Officer










 



A-7


Assignment Form



To assign this Security, fill in the form below:



(I) or (we) assign and transfer this Security to




 




(Insert assignee’s soc. sec. or other tax I.D. no.)




      




      




      




 




(Print or type assignee’s name, address and zip code)



and irrevocably appoint                                         as agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.




      




	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Your Signature:	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	(Sign exactly as your name appears on the face of
this Security)
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guarantee:	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the Registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended












 



A-8


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY




     The following exchanges of a part of this Global Security for an interest in another Global
Security [or for a Definitive Note], or exchanges of a part of another Global Security [or
Definitive Note] for an interest in this Global Security, have been made:



	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Principal Amount of	 	 	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	this Global Security	 	 	Signature of
	 	 	in Principal amount	 	 	in Principal Amount	 	 	following such	 	 	authorized signatory
	 	 	of this Global	 	 	of this Global	 	 	decrease (or	 	 	of Trustee [or Note
	Date of Exchange	 	Security	 	 	Security	 	 	increase)	 	 	Custodian]













 



 


EXHIBIT B




[FORM OF NOTATION OF SECURITY




RELATING TO GUARANTEE]




GUARANTEE




     [Name of Guarantor] (hereinafter referred to as the “Guarantor”, which term includes any
successor person under the Indenture (the “Indenture”) referred to in the Security upon which this
notation is endorsed) (the “Endorsed Security”), has unconditionally guaranteed (i) the due and
punctual payment of the principal of, premium, if any, and interest on the Endorsed Security and
all other Securities of the same series as the Endorsed Security (the “Guaranteed Securities”),
whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of, premium, if any, and interest, if any, on the Guaranteed Securities, to the
extent lawful, and the due and punctual performance of all other obligations of the Company to the
Holders of Guaranteed Securities or the Trustee all in accordance with the terms set forth in
Article Fifteen of the Indenture and (ii) in case of any extension of time of payment or renewal of
any Guaranteed Securities or any of such other obligations, that the 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. Capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Indenture.



     The obligations of the Guarantor to the Holders of Guaranteed Securities and to the Trustee
pursuant to the Guarantee evidenced hereby and the Indenture are expressly set forth in Article
Fifteen of the Indenture and reference is hereby made to such Indenture for the terms of such
Guarantee.



     No stockholder, officer, director or incorporator, as such, past, present or future, of the
Guarantor shall have any personal liability under the Guarantee evidenced hereby by reason of his
or its status as such stockholder, officer, director or incorporator.



     The Guarantee evidenced hereby shall not be valid or obligatory for any purpose until the
certificate of authentication of the Guaranteed Securities shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized officers.



	 	 	 	 	 	 	 
	 

	 	Guarantor
	 	 
	 
	 	 	 	 	 	 
	 

	 	[SEAL]	 	 
	 
	 	 	 	 	 	 
	 

	 	[NAME OF GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	By: