exv4w1






Exhibit 4.1




TD AMERITRADE HOLDING CORPORATION,

as Issuer,




TD AMERITRADE ONLINE HOLDINGS CORP.,

as Subsidiary Guarantor,




and




THE BANK OF NEW YORK MELLON TRUST COMPANY,

NATIONAL ASSOCIATION,

as Trustee




INDENTURE




Dated
as of November 19, 2009





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	8	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	9	 
	Section 1.04. Rules of Construction
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 2 THE SECURITIES
	 	 	9	 
	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	9	 
	Section 2.02. Execution and Authentication
	 	 	10	 
	Section 2.03. Amount Unlimited; Issuable in Series
	 	 	12	 
	Section 2.04. Denomination and Date of Securities; Payments of Interest
	 	 	15	 
	Section 2.05. Registrar and Paying Agent; Agents Generally
	 	 	16	 
	Section 2.06. Paying Agent to Hold Money in Trust
	 	 	17	 
	Section 2.07. Transfer and Exchange
	 	 	17	 
	Section 2.08. Replacement Securities
	 	 	20	 
	Section 2.09. Outstanding Securities
	 	 	21	 
	Section 2.10. Temporary Securities
	 	 	22	 
	Section 2.11. Cancellation
	 	 	22	 
	Section 2.12. CUSIP Numbers
	 	 	22	 
	Section 2.13. Defaulted Interest
	 	 	22	 
	Section 2.14. Series May Include Tranches
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 3 REDEMPTION
	 	 	23	 
	 
	 	 	 	 
	Section 3.01. Applicability of Article
	 	 	23	 
	Section 3.02. Notice of Redemption; Partial Redemptions
	 	 	23	 
	Section 3.03. Payment Of Securities Called For Redemption
	 	 	25	 
	Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption
	 	 	26	 
	Section 3.05. Mandatory and Optional Sinking Funds
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	28	 
	 
	 	 	 	 
	Section 4.01. Payment of Securities
	 	 	28	 
	Section 4.02. Maintenance of Office or Agency
	 	 	29	 
	Section 4.03. Compliance Certificate
	 	 	30	 
	Section 4.04. Taxes
	 	 	30	 
	Section 4.05. Stay, Extension and Usury Laws
	 	 	30	 
	Section 4.06. Securityholders’ Lists
	 	 	30	 
	Section 4.07. Reports by the Company
	 	 	31	 
	Section 4.08. Additional Amounts
	 	 	31	 
	Section 4.09. Legal Existence
	 	 	32	 
	Section 4.10. Future Subsidiary Guarantors
	 	 	32	 






i









 






	 	 	 	 	 
	Section 4.11. Waiver Of Certain Covenants
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 5 CONSOLIDATION, MERGER OR SALE OF ASSETS
	 	 	32	 
	 
	 	 	 	 
	Section 5.01. Consolidation, Merger or Sale of Assets by the Company
	 	 	32	 
	Section 5.02. Successor Corporation Substituted
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 6 DEFAULT AND REMEDIES
	 	 	34	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	34	 
	Section 6.02. Acceleration
	 	 	36	 
	Section 6.03. Other Remedies
	 	 	37	 
	Section 6.04. Waiver of Past Defaults
	 	 	37	 
	Section 6.05. Control by Majority
	 	 	37	 
	Section 6.06. Limitation on Suits
	 	 	37	 
	Section 6.07. Rights of Holders to Receive Payment
	 	 	38	 
	Section 6.08. Collection Suit by Trustee
	 	 	38	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	38	 
	Section 6.10. Application of Proceeds
	 	 	39	 
	Section 6.11. Restoration of Rights and Remedies
	 	 	39	 
	Section 6.12. Undertaking for Costs
	 	 	39	 
	Section 6.13. Rights and Remedies Cumulative
	 	 	40	 
	Section 6.14. Delay or Omission not Waiver
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 7 TRUSTEE
	 	 	40	 
	 
	 	 	 	 
	Section 7.01. General
	 	 	40	 
	Section 7.02. Certain Rights of Trustee
	 	 	40	 
	Section 7.03. Individual Rights of Trustee and Others
	 	 	42	 
	Section 7.04. Trustee’s Disclaimer
	 	 	42	 
	Section 7.05. Notice of Default
	 	 	43	 
	Section 7.06. Reports by Trustee to Holders
	 	 	43	 
	Section 7.07. Compensation and Indemnity
	 	 	43	 
	Section 7.08. Replacement of Trustee
	 	 	44	 
	Section 7.09. Acceptance of Appointment by Successor
	 	 	45	 
	Section 7.10. Successor Trustee By Merger, Etc.
	 	 	46	 
	Section 7.11. Eligibility
	 	 	46	 
	Section 7.12. Money Held in Trust
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
	 	 	46	 
	 
	 	 	 	 
	Section 8.01. Satisfaction and Discharge of Indenture
	 	 	46	 
	Section 8.02. Application by Trustee of Funds Deposited for Payment of Securities
	 	 	48	 
	Section 8.03. Repayment of Moneys Held by Paying Agent
	 	 	48	 
	Section 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years
	 	 	48	 
	Section 8.05. Defeasance and Discharge of Indenture
	 	 	48	 
	Section 8.06. Defeasance of Certain Obligations
	 	 	50	 
	Section 8.07. Reinstatement
	 	 	51	 






ii









 






	 	 	 	 	 
	Section 8.08. Indemnity
	 	 	51	 
	Section 8.09. Excess Funds
	 	 	51	 
	Section 8.10. Qualifying Trustee
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	51	 
	 
	 	 	 	 
	Section 9.01. Amendments Without Consent of Holders
	 	 	51	 
	Section 9.02. Amendments with Consent of Holders
	 	 	53	 
	Section 9.03. Revocation and Effect of Consent
	 	 	54	 
	Section 9.04. Notation on or Exchange of Securities
	 	 	54	 
	Section 9.05. Trustee to Sign Amendments, Etc.
	 	 	54	 
	Section 9.06. Conformity With Trust Indenture Act
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 10 SUBSIDIARY GUARANTORS
	 	 	55	 
	 
	 	 	 	 
	Section 10.01. Guarantees
	 	 	55	 
	Section 10.02. Limitation on Liability
	 	 	56	 
	Section 10.03. Successors and Assigns
	 	 	56	 
	Section 10.04. No Waiver
	 	 	56	 
	Section 10.05. Modification
	 	 	57	 
	Section 10.06. Execution and Delivery of Note Guarantee
	 	 	57	 
	Section 10.07. Subsidiary Guarantors May Consolidate, etc., on Certain Terms
	 	 	57	 
	Section 10.08. Release of Subsidiary Guarantor
	 	 	58	 
	Section 10.09. Contribution
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 11 MISCELLANEOUS
	 	 	59	 
	 
	 	 	 	 
	Section 11.01. Trust Indenture Act of 1939
	 	 	59	 
	Section 11.02. Notices
	 	 	59	 
	Section 11.03. Certificate and Opinion as to Conditions Precedent
	 	 	60	 
	Section 11.04. Statements Required in Certificate or Opinion
	 	 	60	 
	Section 11.05. Forms of Documents Delivered to Trustee
	 	 	61	 
	Section 11.06. Evidence of Ownership
	 	 	61	 
	Section 11.07. Rules by Trustee, Paying Agent or Registrar
	 	 	62	 
	Section 11.08. Payment Date Other Than a Business Day
	 	 	62	 
	Section 11.09. Governing Law
	 	 	62	 
	Section 11.10. No Adverse Interpretation of Other Agreements
	 	 	62	 
	Section 11.11. Successors
	 	 	62	 
	Section 11.12. Duplicate Originals
	 	 	62	 
	Section 11.13. Separability
	 	 	63	 
	Section 11.14. Table of Contents, Headings, Etc.
	 	 	63	 
	Section 11.15. Incorporators, Stockholders, Officers and Directors of Company 


                    Exempt from Individual Liability
	 	 	63	 
	Section 11.16. Force Majeure
	 	 	63	 
	Section 11.17. Communication by Holders of Securities with Other Holders of Securities
	 	 	63	 






iii









 






	 	 	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	 	7.11	 
	(a)(2)
	 	 	7.11	 
	(a)(3)
	 	 	N.A.	 
	(a)(4)
	 	 	N.A.	 
	(a)(5)
	 	 	7.11	 
	(b)
	 	 	7.03	 
	(c)
	 	 	N.A.	 
	311(a)
	 	 	7.03	 
	(b)
	 	 	7.03	 
	(c)
	 	 	N.A.	 
	312(a)
	 	 	4.06	 
	(b)
	 	 	11.17	 
	(c)
	 	 	11.17	 
	313(a)
	 	 	7.06	 
	(b)(1)
	 	 	N.A.	 
	(b)(2)
	 	 	7.06; 7.07	 
	(c)
	 	 	7.06; 12.02	 
	(d)
	 	 	7.06	 
	314(a)
	 	 	4.03; 4.07	 
	(b)
	 	 	N.A.	 
	(c)(1)
	 	 	11.03	 
	(c)(2)
	 	 	11.03	 
	(c)(3)
	 	 	N.A.	 
	(d)
	 	 	N.A.	 
	(e)
	 	 	11.04	 
	(f)
	 	 	N.A.	 
	315(a)
	 	 	7.01	 
	(b)
	 	 	7.05; 11.02	 
	(c)
	 	 	7.01	 
	(d)
	 	 	7.01	 
	(e)
	 	 	6.12	 
	316(a) (last sentence)
	 	 	2.09	 
	(a)(1)(A)
	 	 	6.05	 
	(a)(1)(B)
	 	 	6.04	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	6.07	 
	(c)
	 	 	2.13	 
	317(a)(1)
	 	 	6.08	 
	(a)(2)
	 	 	6.09	 
	(b)
	 	 	2.06	 
	318(a)
	 	 	11.01	 
	(b)
	 	 	N.A.	 
	(c)
	 	 	11.01	 










 




			
	N.A. means not applicable.
	 
	*	 	This Cross Reference Table is not part of the Indenture.





iv









 





          INDENTURE, dated as
of November 19, 2009, among TD AMERITRADE HOLDING CORPORATION, a Delaware
corporation (the “Company”), TD AMERITRADE ONLINE HOLDINGS CORP., a Delaware corporation and
wholly-owned subsidiary of the Company, as Subsidiary Guarantor, and THE BANK OF NEW YORK MELLON
TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association duly incorporated and existing
under the laws of the United States of America (the “Trustee”).



RECITALS OF THE COMPANY




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



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



          NOW, THEREFORE:



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



ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE




          The following terms (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms used in this
Indenture which are defined (either directly or by reference) in the Trust Indenture Act (except as
herein otherwise expressly provided or unless the context otherwise requires) shall have the
meanings so assigned to such terms.



          Section 1.01. Definitions.



          “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” and “under common control with”) when used with respect to any
specified Person means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control.



1









 





          “Agent” means any Registrar, co-registrar, Paying Agent, additional paying agent, Calculation
Agent, transfer agent or Authenticating Agent.



          “Authorized Newspaper” means a newspaper (in the City of New York, which, if practicable,
shall be The Wall Street Journal (U.S. Edition) or, with respect to any Security the interest on
which is based on the offered quotations in the interbank Eurodollar Market for debtor deposits, in
London, which, if practicable, shall be the Financial Times (U.K. Edition)) published at least once
a day for at least five days in each calendar week and of general circulation in the City of New
York or London, as applicable. If it shall be impractical in the opinion of the Trustee to make any
publication of any notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.



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



          “Board of Directors” means: 



          (1) with respect to a corporation, the board of directors of the corporation or any committee
thereof duly authorized to act for the corporation;



          (2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;



          (3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and



          (4) with respect to any other Person, the board or committee of such Person serving a similar
function.



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



          “Business Day” means, unless otherwise provided with respect to a series of Securities, any
day other than a Legal Holiday.



          “Calculation Agent” means a financial institution appointed by the Company to calculate the
interest rate payable in respect of each interest period on any floating rate notes issued pursuant
to this Indenture.



          “Capital Lease Obligation” means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet prepared in accordance with GAAP.



2









 





          “Capital Stock” means:



          (1) in the case of a corporation, corporate stock;



          (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;



          (3) in the case of a partnership or limited liability company, partnership interests (whether
general or limited) or membership interests; and



          (4) 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;


but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether
or not such debt securities include any right of participation with Capital Stock.




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



          “Company” means TD AMERITRADE Holding Corporation, a Delaware corporation, until a successor
replaces it pursuant to Article 5 of this Indenture and thereafter means the successor.



          “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee is principally administered, which at the date of this Indenture is located at the
offices of The Bank of New York Mellon Trust Company, National Association, 2 North LaSalle Street,
Suite 1020, Chicago, IL 60602, Attention: Corporate Trust, and for purposes of Section 2.05 and
Section 4.02, such office shall also mean the office or agency of the Trustee located at 101
Barclay Street, New York, NY 10286 Attention: Bond Operations-7E.



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



          “Depositary” means, with respect to the Securities of any series issuable or issued, in whole
or in part, in the form of one or more Registered Global Securities, the Person designated as
Depositary by the Company pursuant to Section 2.03 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall
mean or include each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, “Depositary” as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Registered Global Securities of that series.



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



3









 





          “GAAP” means, as to a particular Person, such accounting principles as, in the opinion of the
independent public accountants regularly retained by such Person, conform at the time to accounting
principles generally accepted in the United States.



          “Governmental Authority” means any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.



          “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner, including,
without limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or otherwise).



          “Guaranteed Obligations” means the principal, premium, if any, and interest on the Securities
when due, whether at stated maturity, by acceleration or otherwise, and all other obligations,
monetary or otherwise, of the Company under this Indenture and the Securities (including
compensation, expenses and indemnification).



          “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:



          (1) interest rate agreements, interest rate cap agreements and interest rate collar
agreements or other similar agreements or arrangements;



          (2) foreign exchange contracts and currency protection agreements or other similar agreements
or arrangements; and



          (3) any commodity futures contract, commodity option or other similar agreements or
arrangements.



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



          “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:



          (1) in respect of borrowed money;



          (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);



          (3) in respect of bankers’ acceptances;



          (4) representing Capital Lease Obligations;



4









 





          (5) representing the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable; or



          (6) representing any Hedging Obligations,



if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person.



          The amount of any Indebtedness outstanding as of any date will be:



          (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount; and;



          (2) the principal amount of the Indebtedness, together with any interest on the Indebtedness
that is more than 30 days past due, in the case of any other Indebtedness.



          “Indenture” means this Indenture as originally executed and delivered or as it may be amended
or supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to Sections 2.01 and 2.03.



          “Legal Holiday” means a Saturday, a Sunday or a day on which the Trustee or banking
institutions in the City of New York or at a place of payment are authorized by law, regulation or
executive order to remain closed.



          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction. 



          “Note Guarantee” means the Guarantee by each Subsidiary Guarantor of the Company’s obligations
under this Indenture and the Securities of any series, executed pursuant to the provisions of this
Indenture.



          “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.



          “Officer” means, with respect to the Company, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the



5









 







Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or
any Vice President of such Person. “Officer” of a Subsidiary Guarantor has a correlative meaning.



          “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, or by an Officer of the Company and either an Assistant Treasurer or an Assistant
Secretary of the Company that meets the requirements of Section 11.04 hereof.



          “Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee
of or counsel to the Company or a Subsidiary of the Company, and who is reasonably acceptable to
the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act, if
applicable, and include the statements provided in Section 11.04, if and to the extent required
thereby.



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



          “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 6.02.



          “Periodic Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities.



          “Person” means an individual, corporation, partnership, limited liability company, joint
venture, association, joint stock company, trust, unincorporated organization, Governmental
Authority or other entity of whatever nature.



          “Registered Global Security” means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.02,
and bearing the legend prescribed in Section 2.02.



          “Registered Security” means any Security registered on the Security Register (as defined in
Section 2.05).



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



          “Restated Credit Agreement” means the Amended and Restated Credit Agreement of the Company, to
be dated on or about November 25, 2009, among the Company, the lending institutions party thereto
and The Bank of New York Mellon, as administrative agent, and any



6









 







related notes, Guarantees, instruments and agreements executed in connection therewith, and in
each case, as amended, restated, modified, renewed, refunded, replaced (whether upon termination or
otherwise) or refinanced in whole or in part from time to time.



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



          “Significant Subsidiary” means, at any time, any Subsidiary that is a “significant subsidiary”
as defined in Rule 1-02(w) of Regulation S-X, promulgated by the Commission pursuant to the
Securities Act of 1933, as amended, as such regulation is in effect on the date of this Indenture,
determined based upon the Company’s most recent consolidated financial statements for the most
recently completed fiscal year as set forth in the Company’s Annual Report on Form 10-K (or 10-K/A)
filed with the Commission; provided that in the case of a Subsidiary formed or acquired after the
date of this Indenture, the determination of whether such Subsidiary is a Significant Subsidiary
shall be made on a pro forma basis based on the Company’s most recent consolidated financial
statements for the most recently completed fiscal quarter or fiscal year, as applicable, as set
forth in the Company’s Quarterly Report on Form 10-Q or Annual Report on Form 10-K (or 10-K/A), as
applicable, filed with the Commission.



          “Subsidiary” means, with respect to any specified Person:



          (1) any corporation, association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the occurrence of any
contingency and after giving effect to any voting agreement or stockholders’ agreement that
effectively transfers voting power) to vote in the election of directors, managers or trustees of
the corporation, association or other business entity is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and



          (2) 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 that
Person or one or more Subsidiaries of that Person (or any combination thereof).



          “Subsidiary Guarantors” means, as of the date hereof, TD AMERITRADE Online Holdings Corp., a
Delaware corporation and wholly-owned subsidiary of the Company, and, after the date hereof, each
of:



          (1) the Company’s current and future Subsidiaries that is a borrower or a guarantor
under the Restated Credit Agreement; and



          (2) any other Subsidiary of the Company that executes a Note Guarantee in accordance with the
provisions of this Indenture,



and their respective successors and assigns, in each case, until the Note Guarantee of such Person
has been released in accordance with the provisions of this Indenture.



7









 





          “Trust Indenture Act” means the United States Trust Indenture Act of 1939, as amended (15 U.S.
Code §§ 77aaa-77bbbb), as it may be amended from time to time.



          “Trustee” means The Bank of New York Mellon Trust Company, National Association until a
successor replaces it in accordance with the provisions of Article 7 and thereafter shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is more than one such
Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.



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



          “U.S. Government Obligations” means securities that are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of an agency or instrumentality of the United States of America the full and timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by the United States of
America, 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.



          “Voting Stock” of any specified Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the Board of Directors of such Person.



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



          Section 1.02. Other Definitions. Each of the following terms is defined in the section set
forth opposite such term:



	 	 	 	 	 
	Term	 	Section	 
	Authenticating Agent
	 	 	2.02	 
	cash transaction
	 	 	7.03	 
	Dollars
	 	 	4.02	 
	Event of Default
	 	 	6.01	 
	mandatory sinking fund payment
	 	 	3.05	 
	optional sinking fund payment
	 	 	3.05	 
	Paying Agent
	 	 	2.05	 
	Payment Default
	 	 	6.01	 






8









 






	 	 	 	 	 
	record date
	 	 	2.04	 
	Registrar
	 	 	2.05	 
	Security Register
	 	 	2.05	 
	self-liquidating paper
	 	 	7.03	 
	sinking fund payment date
	 	 	3.05	 
	tranche
	 	 	2.14	 






          Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and
made a part of this Indenture. The following terms used in this Indenture that are defined by the
Trust Indenture Act have the following meanings:



          “indenture securities” means the Securities and the Note Guarantees; and



          “obligor” on the indenture securities means the Company, each Subsidiary Guarantor and any
other obligor on the Securities.



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



          Section 1.04. Rules of Construction. Unless the context otherwise requires:



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



          (b) “or” is not exclusive;



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



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



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



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



ARTICLE 2

THE SECURITIES




          Section 2.01. Form and Dating. The Securities of each series shall be substantially in such
form or forms (not inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions or in one or more indentures supplemental hereto, in each case



9









 







with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law, or with any rules of any securities exchange or usage, all as
may be determined by the officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have coupons attached.



          Section 2.02. Execution and Authentication. An Officer shall execute the Securities and the
coupons appertaining thereto, if any, for the Company by facsimile or manual signature, which may
be imprinted or otherwise reproduced on the Securities, in the name and on behalf of the Company.
If an Officer whose signature is on a Security or coupon appertaining thereto no longer holds that
office at the time the Security is authenticated, the Security and such coupon shall nevertheless
be valid.



          The Trustee may appoint an authenticating agent (the “Authenticating Agent”) to authenticate
Securities. The Authenticating Agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all
times meet the qualifications of the Trustee required by Article 7 of this Indenture. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the previous sentence,
such Authenticating Agent shall resign immediately.



          If an Authenticating Agent consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national banking association
without any further act shall be an Authenticating Agent under this Indenture with the same effect
as if the successor Authenticating Agent had been appointed as an Authenticating Agent as provided
herein, provided such successor shall otherwise be eligible to be an Authenticating Agent under
this Indenture.



          A Security and the coupons appertaining thereto shall not be valid or obligatory for any
purpose or be entitled to the benefits of this Indenture until the Trustee or Authenticating Agent
executes the certificate of authentication on the Security or on the Security to which such coupon
appertains by an authorized officer. The signature shall be conclusive evidence that the Security
or the Security to which the coupon appertains has been duly authenticated and delivered under this
Indenture.



          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series having attached thereto appropriate coupons, if any,
executed by the Company and each Subsidiary Guarantor to the Trustee for authentication together
with the applicable documents referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the Company, signed by an
Officer, or pursuant to such procedures acceptable to the Trustee, without any further action by
the Company. In authenticating such Securities, the Trustee shall be entitled to receive prior to
the authentication of any Securities of such series each of the following, and



10









 




(subject to Article 7) shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked:




          (a) any Board Resolution and/or executed supplemental indenture referred to in Sections 2.01
and 2.03 by or pursuant to which the forms and terms of the Securities of that series were
established;



          (b) an Officers’ Certificate stating that all covenants and conditions precedent to the
execution, authentication and delivery of the Securities have been complied with, and no Default or
Event of Default has occurred and is continuing, and setting forth the form or forms and terms of
the Securities, stating that the form or forms and terms of the Securities of such series have
been, or, in the case of a Periodic Offering, will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with this Indenture; and



          (c) an Opinion of Counsel substantially to the following effect, which Opinion of Counsel may
contain such assumptions, qualifications and limitations as such counsel shall reasonably deem
appropriate: (i) the form or forms and terms of the Securities and Note Guarantees of such series
have been, or, in the case of a Periodic Offering, will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with this Indenture and the
supplemental indenture, to the extent applicable, and (ii) the Indenture and such Securities and
Note Guarantees have been duly authorized and, if executed and authenticated in accordance with the
provisions of the Indenture and delivered and duly paid for, will be entitled to the benefits of
the Indenture and will constitute valid and legally binding obligations of the Company and each
Subsidiary Guarantor, enforceable against the Company and each Subsidiary Guarantor in accordance
with their respective terms, subject to bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting creditors’ rights generally and general principles of
equity (regardless of whether enforceability is considered in a proceeding of equity or law).



          The Trustee shall not be required to authenticate such Securities if the Trustee reasonably
determines that the issue of such Securities pursuant to this Indenture will affect the Trustee’s
own rights, duties or immunities under the Securities and this Indenture in any material respect or
may not be lawfully taken.



          Notwithstanding the provisions of Sections 2.01 and this Section 2.02, if, in connection with
a Periodic Offering, all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01
or the written order, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to
this Section 2.02 at or prior to the authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.



          With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, the forms and terms thereof and
the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and
the other documents delivered pursuant to Section 2.01 and this Section 2.02, as applicable, in
connection with the first authentication of Securities of such series.



11









 





          If the Company shall establish pursuant to or as contemplated by Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of one or more Registered
Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver
one or more Registered Global Securities in temporary or permanent form that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of all of the
Securities of such series issued in such form and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary’s instructions and (iv) shall bear a legend substantially to the following effect: “THIS
SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”



          Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



          There shall be established in or pursuant to a Board Resolution and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series, subject to the last sentence of this Section 2.03:



          (a) the designation of the Securities of the series, which shall distinguish the Securities of
the series from the Securities of all other series, except to the extent that additional Securities
of an existing series are being, or will be, issued;



          (b) any limit upon the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, or upon redemption of, other
Securities of the series pursuant hereto); provided, however, that the authenticated aggregate
principal amount of such series may from time to time be increased above such amount by Board
Resolution to such effect;



          (c) the date or dates on which the principal of the Securities of the series is payable, or
the method of determination thereof (which date or dates may be fixed or extendible);



          (d) the rate or rates (which may be fixed or variable), or the method of determination
thereof, at which the Securities of the series shall bear interest, if any, the date or dates from
which such interest shall accrue, or the method of determination thereof, on which such interest
shall be payable and (in the case of Registered Securities) on which a record shall be taken for



12









 







the determination of Holders to whom interest is payable and/or the method by which such rate
or rates or date or dates shall be determined;



          (e) if other than as provided in Section 4.02, the place or places where the principal of,
premium, if any, and any interest, if any, on Securities of the series shall be payable, any
Registered Securities of the series may be presented for registration of transfer or for exchange,
notices, demands to or upon the Company in respect of the Securities of the series and this
Indenture may be served and notice to Holders may be published;



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



          (g) the obligation, if any, of the Company to redeem, purchase or repay Securities of the
series pursuant to any mandatory redemption, 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, the
currency or currencies in which and any of the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;



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



          (i) if other than the principal amount thereof, the portion of the principal amount of any of
the Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof;



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



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



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



13









 







Unregistered Securities of any series may be exchanged for Registered Securities of such
series and vice versa;



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



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



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



          (p) provisions, if any, for the legal defeasance or covenant defeasance of the Securities of
the series (including provisions permitting defeasance or covenant defeasance of less than all
Securities of the series), which provisions may be in addition to, in substitution for, or in
modification of (or any combination of the foregoing) the provisions of Article 8;



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



          (r) any deletions from or modifications of or additions to the Events of Default or covenants
with respect to the Securities of the series and any other change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount thereof due and payable
pursuant to this Indenture; and



          (s) any other terms of the Securities of the series and any other deletions from or
modifications of or additions to this Indenture in respect of such Securities.



          Each Depositary designated pursuant to this Section 2.03 must, at the time of its designation
and at all times while it serves as Depositary, be either a clearing agency registered under the
Exchange Act and any other applicable statute or regulation or a foreign clearing agency regulated
by a foreign financial regulatory authority as defined in Section 3(a)(52) of the Exchange Act,
including, without limitation, Euroclear Bank S.A./N.V. and Clearstream Banking, société anonyme.



          All Securities of any one series and coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to date and denomination,
except in the case of any Periodic Offering and except as may otherwise be provided by or pursuant
to the Board Resolution referred to above or as set forth in any such indenture supplemental
hereto; provided, however, that the issuance of Securities other than the initial Securities of any
series must be a “Qualified Reopening” under Treasury Regulation § 1.1275-2(k)(3) (the Trustee
being entitled to assume compliance with this clause unless notified to the



14









 







contrary in writing by the Company). All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms of this Indenture, if
so provided by or pursuant to such Board Resolution or in any such indenture supplemental hereto
and any forms and terms of Securities to be issued from time to time may be completed and
established from time to time prior to the issuance thereof by procedures described in such Board
Resolution or supplemental indenture.



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



          Section 2.04. Denomination and Date of Securities; Payments of Interest. The Securities of
each series shall be issuable as Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.03 or, if not so established with respect to Securities of
any series, in denominations of $1,000 and any integral multiple thereof. The Securities of each
series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with
such plan as the Officers of the Company executing the same may determine, as evidenced by their
execution thereof.



          Unless otherwise specified with respect to a series of Securities, each Security shall be
dated the date of its authentication. The Securities of each series shall bear interest, if any,
from the date, and such interest and shall be payable on the dates, established as contemplated by
Section 2.03.



          The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to the extent the Company shall
default in the payment of the interest due on such interest payment date for such series, in which
case the provisions of Section 2.13 shall apply. The term “record date” as used with respect to any
interest payment date (except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the Registered Securities of such
series established as contemplated by Section 2.03, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such record date is a
Business Day.



          Except as the Company and the Trustee may otherwise agree, the Company shall promptly deliver
to the Trustee following the end of each calendar year a written notice specifying the amount of
original issue discount accrued on any outstanding Securities that are Original Issue Discount
Securities or otherwise are issued with more than a de minimis amount of original issue discount
(as defined in Section 1273(a) of the Internal Revenue Code of 1986, as amended) for such calendar
year, including daily rates and accrual periods, and such other information relating to original
issue discount reasonably necessary in order to complete any required tax information reports for
such calendar year.



15









 





          Section 2.05. Registrar and Paying Agent; Agents Generally. The Company shall maintain an
office or agency where Securities may be presented for registration, registration of transfer or
for exchange (the “Registrar”) and an office or agency where Securities may be presented for
payment (the “Paying Agent”). The Company shall cause the Registrar to keep a register of the
Registered Securities and of their registration, transfer and exchange (the “Security Register”).
The Company may have one or more additional Paying Agents or transfer agents with respect to any
series.



          The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture and the Trust
Indenture Act that relate to such Agent. The Company shall give prompt written notice to the
Trustee of the name and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The
Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no
such removal shall become effective until (i) the acceptance of an appointment by a successor Agent
to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i)
of this proviso. The Company or any Affiliate of the Company may act as Paying Agent or Registrar;
provided that neither the Company nor an Affiliate of the Company shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of this Indenture under Article
8.



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



          Prior to due presentment of a Registered Security for registration of transfer, the Company,
the Trustee and any agent of the Company or of the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section 2.13) interest on
such Registered Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.



          The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of
any Unregistered Security and the bearer of any coupon as the absolute owner of such Unregistered
Security or coupon for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Unregistered Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.



          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 Registered Global Security or for maintaining,



16









 







supervising or reviewing any records relating to such beneficial ownership interests, or any
notice which is permitted or required to be given under the Indenture, any consent given or other
action taken by the Depositary as Registered Holder, or any selection by the Depositary of any
Person to receive payment of principal, premium, if any, interest or other amounts payable on the
Securities.



          Section 2.06. Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. New York City
time on each due date or, in the case of Unregistered Securities, 10:00 a.m. New York City time on
the Business Day prior to the due date, of any principal, interest or premium, if any, on any
Securities, the Company shall deposit with the Paying Agent money in immediately available funds
sufficient to pay such principal, interest or premium becoming due. The Company shall require each
Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust
for the benefit of the Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of principal of and interest or premium, if any, on such Securities and shall
promptly notify the Trustee of any Default by the Company in making any such payment. The Company
at any time may require a Paying Agent to pay all money held by it to the Trustee and account for
any funds disbursed, and the Trustee may at any time during the continuance of any Payment Default,
upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company or any Affiliate of the
Company acts as Paying Agent, it shall, on or before each due date of any principal, interest or
premium on any Securities, segregate and hold in a separate trust fund for the benefit of the
Holders thereof a sum of money sufficient to pay such principal, interest or premium so becoming
due until such sum of money shall be paid to such Holders or otherwise disposed of as provided in
this Indenture, and shall promptly notify the Trustee in writing of its action or failure to act as
required by this Section 2.06.



          Section 2.07. Transfer and Exchange. Unregistered Securities (except for any temporary global
Unregistered Securities) and coupons (except for coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.



          At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series and like tenor, of any authorized denominations and like
aggregate principal amount and maturity, upon surrender of such Registered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose in accordance with
Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and unregistered form,
except as otherwise established pursuant to Section 2.03, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered Securities of such series and
tenor having authorized denominations and an equal aggregate principal amount, upon surrender of
such Unregistered Securities to be exchanged at the agency of the Company that shall be maintained
for such purpose in accordance with Section 4.02, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities



17









 







of any series, maturity date, interest rate and Original Issue Date are issued in more than
one authorized denomination, except as otherwise established pursuant to Section 2.03, such
Unregistered Securities may be exchanged for Unregistered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall be maintained for
such purpose in accordance with Section 4.02, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so require, of the charges hereinafter
provided. Registered Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.



          Upon surrender for registration of transfer of any Registered Security of a series at the
agency of the Company that shall be maintained for that purpose in accordance with Section 2.05 and
upon payment, if the Company shall so require, of the charges hereinafter provided, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount and maturity.



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



          The Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such transaction.



          Notwithstanding any other provision of this Section 2.07, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such successor Depositary.



          If at any time the Depositary for any Registered Global Securities of any series notifies the
Company that it is unwilling or unable to continue as Depositary for such Registered Global
Securities or if at any time the Depositary for such Registered Global Securities shall no longer
be eligible under applicable law, the Company shall use its commercially reasonable efforts to
appoint a successor Depositary eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company shall execute, and the Trustee, upon receipt of
the Company’s order for the authentication and delivery of definitive Registered



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Securities of such series shall authenticate and deliver, as specified in such order,
Registered Securities of such series in definitive form, in an aggregate principal amount equal to
the principal amount of such Registered Global Securities, in exchange for such Registered Global
Securities.



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



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



          If established by the Company pursuant to Section 2.03 with respect to any Registered Global
Security, the Depositary for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Registered Securities of the same series in definitive
registered form on such terms as are acceptable to the Company and such Depositary. Thereupon, the
Company and each Subsidiary Guarantor shall execute, and the Trustee shall authenticate and
deliver, without service charge,



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



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



          Registered Securities issued in exchange for a Registered Global Security pursuant to this
Section 2.07 shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to or as directed by the Persons in whose names such Securities are so registered. The
Registered Global Security exchanged shall be cancelled by the Trustee.



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



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



          The Company shall not be required (i) to issue, register the transfer of, or exchange
Securities of any particular series during the period from the opening of business 15 days before
the day a notice of redemption relating to such Securities selected for redemption is sent to the
close of business on the day that notice is sent, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or part, except for the unredeemed portion of any
Security being redeemed in part.



          Section 2.08. Replacement Securities. If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver, in exchange for such mutilated Security or in exchange
for the Security to which a mutilated coupon appertains, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to the
Security to which such mutilated coupon appertains.



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



          In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security or coupon (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to hold each of them and any agent of any of
them harmless, and in the case of destruction, loss or theft, evidence satisfactory to the Company
and the Trustee and any agent of them of the destruction, loss or theft of such Security and the
ownership thereof; provided, however, that the principal of, premium, if any, and any interest on
Unregistered Securities shall, except as otherwise provided in Section 4.02, be payable only at an
office or agency located outside the United States.



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          Upon the issuance of any new Security under this Section, the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



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



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



          Section 2.09. Outstanding Securities. Securities outstanding at any time are all Securities
that have been authenticated by the Trustee except for those cancelled by it, those delivered to it
for cancellation, those described in this Section as not outstanding and those that have been
defeased pursuant to Section 8.05.



          If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a holder in due course.



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



          A Security does not cease to be outstanding because the Company or one of its Affiliates holds
such Security unless cancelled pursuant to Section 2.11, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by
the Company or any Affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Securities as to which a
Responsible Officer of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by any Affiliate of the
Company, as security for loans or other obligations, otherwise than to another such Affiliate of
the Company, shall be deemed to be outstanding, if the pledgee is entitled to act with respect to
such Securities.



          In determining whether the Holders of the requisite principal amount of the outstanding
Securities have given any request, demand, authorization, direction, notice, consent or waiver



21









 







hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the maturity thereof pursuant to Section 6.02.



          Section 2.10. Temporary Securities. Until definitive Securities of any series are ready for
delivery, the Company and each Subsidiary Guarantor may execute and the Trustee shall authenticate
and deliver temporary Securities of such series. Temporary Securities of any series shall be
substantially in the form of definitive Securities of such series but may have insertions,
substitutions, omissions and other variations determined to be appropriate by the Officers
executing the temporary Securities, as evidenced by their execution of such temporary Securities.
If temporary Securities of any series are issued, the Company shall cause definitive Securities of
such series to be prepared without unreasonable delay.



          After preparation of definitive Securities of any series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon surrender of such
temporary Securities at the office or agency of the Company designated for such purpose pursuant to
Section 4.02, without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of such series and
tenor and authorized denominations. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive Securities of such
series.



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



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



          Section 2.13. Defaulted Interest. If the Company defaults in a payment of interest on the
Securities of any series, it will pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Securities and in
Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted
interest proposed to



22









 







be paid on each Security of the applicable series and the date of the proposed payment. The
Company will fix or cause to be fixed each such special record date and payment date; provided that
no such special record date may be less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record date, the Company (or, upon the
written request of the Company, the Trustee in the name and at the expense of the Company) will
mail or cause to be mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.



          Section 2.14. Series May Include Tranches. A series of Securities may include one or more
tranches (each a “tranche”) of Securities, including Securities issued in a Periodic Offering. The
Securities of different tranches may have one or more different terms, including authentication
dates and public offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price. Notwithstanding any other
provision of this Indenture, with respect to Sections 2.02 (other than the fourth, sixth and
seventh paragraphs thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through
6.14, 8.01 through 8.06, 9.02 through 9.04 and 11.08, if any series of Securities includes more
than one tranche, all provisions of such sections applicable to any series of Securities shall be
deemed equally applicable to each tranche of any series of Securities in the same manner as though
originally designated a series unless otherwise provided with respect to such series or tranche
pursuant to Section 2.03. In particular, and without limiting the scope of the next preceding
sentence, any of the provisions of such sections which provide for or permit action to be taken
with respect to a series of Securities shall also be deemed to provide for and permit such action
to be taken instead only with respect to Securities of one or more tranches within that series (and
such provisions shall be deemed satisfied thereby), even if no comparable action is taken with
respect to Securities in the remaining tranches of that series.



ARTICLE 3

REDEMPTION




          Section 3.01. Applicability of Article. The provisions of this Article 3 shall be applicable
to the Securities of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as contemplated by
Section 2.03 for Securities of such series.



          Section 3.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders
of Registered Securities of any series to be redeemed as a whole or in part at the option of the
Company shall be given by mailing notice of such redemption by first class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of such series at their last addresses as they shall appear upon the
registry books. Notice of redemption to the Holders of Unregistered Securities of any series to be
redeemed as a whole or in part who have filed their names and addresses with the Trustee pursuant
to Section 313(c)(2) of the Trust Indenture Act shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more than 60 days prior
to the date fixed for redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Notice of redemption to all other Holders
of Unregistered Securities of any series to be redeemed as a whole or in part shall be



23









 







published in an Authorized Newspaper, once in each of three successive calendar weeks, the
first publication to be not less than 30 days nor more than 60 days prior to the date fixed for
redemption. Any notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.



          The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the CUSIP or CINS numbers of the
Securities to be redeemed, the date fixed for redemption, the redemption price, or if not then
ascertainable, the manner of calculation thereof, the place or places of payment, that payment will
be made upon presentation and surrender of such Securities and, in the case of Securities with
coupons attached thereto, of all coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to, but excluding, the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue and that such Securities subject to such
redemption shall cease to be outstanding and the Holders thereof shall have no rights with respect
thereto other than the right to receive the redemption price upon presentment and surrender. In
case any Security of a series is to be redeemed in part only, the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or Securities of such
series in principal amount equal to the unredeemed portion thereof will be issued. If the
redemption price is not known at the time such notice is to be given, the actual redemption price,
calculated as described in the terms of the Securities to be redeemed, will be set forth in an
Officers’ Certificate of the Company delivered to the Trustee no later than two Business Days prior
to the redemption date.



          The notice of redemption of Securities of any series to be redeemed at the option of the
Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and
at the expense of the Company.



          On or before 10:00 a.m. New York City time on the redemption date or, in the case of
Unregistered Securities, on or before 10:00 a.m. New York City time on the Business Day prior to
the redemption date specified in the notice of redemption given as provided in this Section, the
Company shall deposit with the Trustee or with one or more Paying Agents (or, if the Company is
acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.06)
an amount of money sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued interest to, but
excluding the date fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company shall deliver to the Trustee at least 10 days prior to the last date on which
notice of redemption may be given to Holders pursuant to the first paragraph of this Section 3.02
(or such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company shall deliver to the Trustee at least 10 days (or such
lesser number of days as the Trustee shall approve) prior to last date on which notice of



24









 







redemption may be given to Holders pursuant to the first paragraph of this Section 3.02 (or
such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating the
aggregate principal amount of such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall deliver to the Trustee, not later than the giving of any notice of
redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing compliance with
such restriction or condition.



          If less than all the Securities of a series are to be redeemed, and if the Securities are held
by a Depositary, the applicable operational procedures of the Depositary for selection of
Securities for redemption will apply. If the Securities are not held by a Depositary, the Trustee
shall select, pro rata, by lot or in such manner as it shall deem appropriate and fair, Securities
of such series or portions thereof to be redeemed in whole or in part. Securities may be redeemed
in part in principal amounts equal to authorized denominations for Securities of such series. The
Trustee shall promptly notify the Company and Paying Agent in writing of the Securities of such
series or portions thereof selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Security which has been or is to be
redeemed.



          Section 3.03. Payment Of Securities Called For Redemption. If notice of redemption has been
given as above provided, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to, but excluding, the date fixed for redemption,
and on and after such date (unless the Company shall default in the payment of such Securities or
portions thereof at the redemption price, together with interest accrued to, but excluding, such
date) any interest on the Securities or portions of Securities so called for redemption shall cease
to accrue, and the unmatured coupons, if any, appertaining thereto shall be void and, except as
provided in Sections 7.12 and 8.02, such Securities shall be deemed not to be outstanding and shall
cease from and after the date fixed for redemption to be entitled to any benefit under this
Indenture, and the Holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment specified in said notice,
together with all coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued thereon to, but
excluding, the date fixed for redemption; provided that payment of interest becoming due on or
prior to the date fixed for redemption shall be payable in the case of Securities with coupons
attached thereto to the Holders of the coupons for such interest upon surrender thereof, and in the
case of Registered Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.04 and 2.13 hereof.



          If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed



25









 







for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.



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



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



          Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption.
Securities shall be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a written statement signed by an Officer of the Company
and delivered to the Trustee at least 40 days prior to the last date on which notice of redemption
may be given as being owned of record and beneficially by, and not pledged or hypothecated by,
either (a) the Company or (b) an entity specifically identified in such written statement as being
an Affiliate of the Company.



          Section 3.05. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms
of the Securities of any series is herein referred to as an “optional sinking fund payment”. The
date on which a sinking fund payment is to be made is herein referred to as the “sinking fund
payment date”.



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



          On or before the sixtieth day next preceding each sinking fund payment date for any series, or
such shorter period as shall be acceptable to the Trustee, the Company shall deliver to the Trustee
an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of specified



26









 







Securities of such series and the basis for such credit and (b) stating whether or not the
Company intends to exercise its right to make an optional sinking fund payment with respect to such
series. Any Securities of such series to be credited and required to be delivered to the Trustee in
order for the Company to be entitled to credit therefor as aforesaid which have not theretofore
been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.11 to the
Trustee with such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the Trustee the
Company shall become obligated to make all the cash payments, delivery of Securities or crediting
therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of
the Company, on or before any such sixtieth day, to deliver such Officers’ Certificate and
Securities specified in this paragraph, if any, shall not constitute a Default but shall
constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Company shall make no optional sinking fund payment with respect to such
series as provided in this Section.



          If the sinking fund payment or payments (mandatory or optional) to be made in cash on the next
succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments
made in cash shall exceed $50,000 or the equivalent in foreign currency if to be paid out in such
currency (or a lesser sum if the Company shall so request with respect to the Securities of any
series), such cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price thereof together with
accrued interest thereon to, but excluding, the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request then it shall be carried
over until a sum in excess of $50,000 (or such lesser sum) is available. If the Securities are held
by a Depositary, the applicable operational procedures of the Depositary for selection of
Securities for redemption will apply. If the Securities are not held by a Depositary, the Trustee
shall select, in the manner provided in Section 3.02, for redemption on such sinking fund payment
date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Company) inform the Company of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities shall be excluded
from eligibility for redemption under this Section if they are identified by registration and
certificate number in an Officers’ Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Company or (b) an entity specifically identified in such Officers’
Certificate as being an Affiliate of the Company. The Trustee, in the name and at the expense of
the Company (or the Company, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the manner provided in
Section 3.02 (and with the effect provided in Section 3.03) for the redemption of Securities of
such series in part at the option of the Company. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular Securities of such
series shall be applied, together



27









 







with other moneys, if necessary, sufficient for the purpose, to the payment of the principal
of, premium, if any, and interest on, the Securities of such series at maturity.



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



          The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such Default or Event of Default, be deemed to have been collected under Article
6 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 6.04 or the Default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.



ARTICLE 4

COVENANTS




          Unless otherwise specified as contemplated by Section 2.03, the covenants contained in this
Article 4 shall be applicable to the Securities of any series.



          Section 4.01. Payment of Securities. The Company shall pay the principal of, premium, if any,
and interest, if any, on the Securities of a series on the dates and in the manner provided in the
Securities of that series and this Indenture. The interest on Securities with coupons attached
(together with any additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature. The interest on any temporary Unregistered
Securities (together with any additional amounts payable pursuant to the terms of such Securities)
shall be paid, as to the installments of interest evidenced by coupons attached thereto, if any,
only upon presentation and surrender thereof, and, as to the other installments of interest, if
any, only upon presentation of such Unregistered Securities for notation thereon of the payment of
such interest. The interest on Registered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to the Holders thereof (subject to
Section 2.04) and at the option of the Company may be paid by mailing checks for such interest
payable to or upon the written order of such Holders at their last addresses as they appear on the
Security Register of the Company.



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          Notwithstanding any provisions of this Indenture and the Securities of any series to the
contrary, if the Company and a Holder of any Registered Security so agree, payments of interest on,
premium, if any, and any portion of the principal of, such Holder’s Registered Security shall be
made by the Paying Agent, upon receipt from the Company of immediately available funds by 11:00
A.M., New York City time (or such other time as may be agreed to between the Company and the Paying
Agent), directly to the Holder of such Security (by Federal funds wire transfer or otherwise) if
the Holder has delivered written instructions to the Trustee 15 days prior to such payment date
requesting that such payment will be so made and designating the bank account to which such
payments shall be so made and in the case of payments of principal, surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same principal amount as the
unredeemed principal amount of the Securities surrendered. The Trustee shall be entitled to rely on
the last instruction delivered by the Holder pursuant to this Section 4.01 unless a new instruction
is delivered 15 days prior to a payment date. The Company shall indemnify and hold each of the
Trustee and any Paying Agent harmless against any loss, liability or expense reasonably incurred
without negligence or bad faith on their part resulting from any act or omission to act on the part
of the Company or any such Holder in connection with any such agreement or from making any payment
in accordance with any such agreement.



          Section 4.02. Maintenance of Office or Agency. The Company shall maintain an office or agency
where Securities of any series may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served. The Company hereby initially designates
the Corporate Trust Office of the Trustee as such office or agency of the Company. The Company
shall give prompt written notice to the Trustee of any change in such office or agency. If at any
time the Company fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.



          The Company may maintain one or more agencies in a city or cities located outside the United
States (including any city in which such an agency is required to be maintained under the rules of
any stock exchange on which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon shall be made upon presentation of such
Unregistered Security or coupon at an agency of the Company within the United States nor shall any
payment be made by transfer to an account in, or by mail to an address in, the United States
unless, pursuant to applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the foregoing, if full
payment in United States Dollars (“Dollars”) at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons appertaining thereto is
illegal or effectively precluded by exchange controls or other similar restrictions, payments in
Dollars of Unregistered Securities of any series and coupons appertaining thereto which are payable
in Dollars may be made at an agency of the Company.



          The Company may also from time to time designate one or more other offices or agencies where
the Securities of any series may be presented or surrendered for any or all such purposes



29









 







and may from time to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency for such purposes. The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.



          Section 4.03. Compliance Certificate. (a) The Company and each Subsidiary Guarantor (to the
extent that such Subsidiary Guarantor is so required under the Trust Indenture Act) shall deliver
to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate (that
need not comply with Section 11.04) stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept, observed, performed and
fulfilled in all material respects each and every covenant contained in this Indenture and is not
in default in the performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the principal of,
premium or interest, if any, on the Securities is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to take with respect
thereto.



          (b) So long as any of the Securities of any series are outstanding, the Company will deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default, what action the Company is
taking or proposes to take with respect thereto and whether the Securities are listed on any
exchange.



          Section 4.04. Taxes. The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the failure to effect such payment
is not adverse in any material respect to the Holders of the Securities.



          Section 4.05. Stay, Extension and Usury Laws. The Company and each Subsidiary Guarantor
covenants (to the extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Company and each Subsidiary Guarantor (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of every such power
as though no such law has been enacted.



          Section 4.06.
Securityholders’ Lists. The Company shall furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the names and



30









 







addresses of the holders of the Securities pursuant to Section 312 of the Trust Indenture Act
(a) not more than 15 days after each record date for the payment of interest on the Securities, as
hereinabove specified, as of such record date, and (b) at such other times as the Trustee may
request in writing, within thirty days after receipt by the Company of any such request as of a
date not more than 15 days prior to the time such information is furnished; provided, however, in
each case that so long as the Trustee shall be the Registrar, such lists shall not be required to
be furnished.



          Section 4.07. Reports by the Company. The Company and each Subsidiary Guarantor covenants to
file with the Trustee, within 15 days after the Company and each Subsidiary Guarantor is required
to file with the Commission, copies of the annual reports and of the information, documents, and
other reports which the Company and each Subsidiary Guarantor is required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. Filing of any such annual
report, information, documents and such other reports on the Commission’s EDGAR system (or any
successor thereto) or any other publicly available database maintained by the Commission shall be
deemed to satisfy the requirements of this Section 4.07, provided that the Trustee shall have no
duty to determine whether any such filing shall have occurred. 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 notice or constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s or any
Subsidiary Guarantor’s compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates or certificates delivered to the Trustee
pursuant to Section 4.03).



          Section 4.08. Additional Amounts. If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first interest payment date with respect to that
series of Securities and at least 10 days prior to each date of payment of principal of, premium,
if any, or interest on the Securities of that series if there has been a change with respect to the
matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish to the
Trustee and the Paying Agent, if other than the Trustee, an Officers’ Certificate instructing the
Trustee and such Paying Agent whether such payment of principal of, premium, if any, or interest on
the Securities of that series shall be made to Holders of the Securities of that series without
withholding or deduction for or on account of any tax, assessment or other governmental charge
described in the Securities of that series. If any such withholding or deduction shall be required,
then such Officers’ Certificate shall specify by country the amount, if any, required to be
withheld or deducted on such payments to such Holders and shall certify the fact that additional
amounts will be payable and the amounts so payable to each Holder, and the Company shall pay to the
Trustee or such Paying Agent the additional amounts required to be paid by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any of them in reliance
on any Officers’ Certificate furnished pursuant to this Section.



          Whenever in this Indenture there is mentioned, in any context, the payment of the principal
of, premium, if any, or interest or any other amounts on, or in respect of, any Security of any
series, such mention shall be deemed to include mention of the payment of additional amounts
provided by the terms of such series established hereby or pursuant hereto to the extent



31









 







that, in such context, additional amounts are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in
any provision hereof shall not be construed as excluding the payment of additional amounts in those
provisions hereof where such express mention is not made.



          Section 4.09. Legal Existence. Subject to Article 5 hereof, the Company shall preserve and
maintain:



          (a) the legal existence and legal structure of the Company and its Subsidiaries; and



          (b) to the extent material to the conduct of the business of the Company and its Subsidiaries,
taken as a whole, the rights (charter and statutory), licenses and franchises of the Company and
its Subsidiaries;



provided, however, that the Company shall not be required to preserve any such right, license or
franchise, or the legal existence or structure of any of its Subsidiaries, if the Company shall
determine, and set forth in an Officers’ Certificate such determination, that the preservation
thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders
of the Securities.



          Section 4.10. Future Subsidiary Guarantors. The Company shall not permit any of its
Subsidiaries to, directly or indirectly, guarantee any Person’s Obligations under the Restated
Credit Agreement unless such Subsidiary is a Subsidiary Guarantor or concurrently executes a
supplemental indenture and a Note Guarantee.



          Section 4.11. Waiver Of Certain Covenants. The Company may omit in any particular instance to
comply with any term, provision or condition set forth in Section 4.10 and clause (d) of Section
5.01, except as otherwise specifically provided therein (and, if so specified pursuant to Section
2.03, any other covenant not set forth herein and specified pursuant to Section 2.03 to be
applicable to the Securities of any series, except as otherwise provided pursuant to Section 2.03),
with respect to the Securities of any series if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the outstanding Securities of such series
shall, by act of such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent expressly so waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and effect.



ARTICLE 5

CONSOLIDATION, MERGER OR SALE OF ASSETS




          Section 5.01. Consolidation, Merger or Sale of Assets by the Company. Except as otherwise
specified as contemplated by Section 2.03, the Company shall not, directly or indirectly:
(i) consolidate or merge with or into another Person (whether or not the Company is the surviving
corporation) or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially
all of the properties or assets of the Company and its Subsidiaries taken as a whole, in one or
more related transactions, to another Person, unless:



32









 





          (a) either:




          (i) the Company is the surviving corporation; or




          (ii) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance or other disposition
has been made is a corporation or limited liability company organized or existing under the
laws of the United States, any state of the United States or the District of Columbia;



          (b) the Person formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition
has been made expressly assumes all the obligations of the Company under the Securities and this
Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee;



          (c) immediately after such transaction, no Default or Event of Default exists; and



          (d) the Company or the Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, assignment, transfer, conveyance or other
disposition has been made, shall have delivered to the Trustee an Opinion of Counsel stating that
such transaction and any supplemental indenture entered into in connection therewith comply with
all of the terms of this covenant and that all conditions precedent provided for in this covenant
relating to such transaction or series of transactions have been complied with.



In addition, the Company will not, directly or indirectly, lease all or substantially all of its
properties or assets of the Company and its Subsidiaries, taken as a whole, in one or more related
transactions, to any other Person. This Section 5.01 will not apply to:



          (a) a merger of the Company with an Affiliate solely for the purpose of reincorporating the
Company in another jurisdiction; or



          (b) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other
disposition of assets between or among the Company and its Subsidiaries.



          Section 5.02. Successor Corporation Substituted. Upon any consolidation or merger, or any
sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of
the properties or assets of the Company in a transaction that is subject to, and that complies with
the provisions of, Section 5.01 hereof, the successor Person formed by such consolidation or into
or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made shall succeed to, and be substituted for (so that from and after the
date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the
successor Person and not to the Company), and may exercise every right and power of the Company
under this Indenture with the same effect as if such successor Person had been named as the Company
herein.



33









 





          Such successor Person may cause to be signed, and may issue either in its own name or in the
name of the Company prior to such succession, 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 Person 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 pursuant to such provisions and any Securities which such successor
Person thereafter shall cause to be signed and delivered to the Trustee on its behalf for that
purpose pursuant to such provisions. All of 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, lease or conveyance, such changes in
phraseology and form may be made in the Securities thereafter to be issued as may be appropriate.



          In the event of any such sale or conveyance (other than a conveyance by way of lease) the
Company or any successor Person which shall theretofore have become such in the manner described in
this Article shall be discharged from all obligations and covenants under this Indenture and the
Securities, and may be liquidated and dissolved.



ARTICLE 6

DEFAULT AND REMEDIES




          Section 6.01. Events of Default. Each of the following is an “Event of Default” with respect
to the Securities of any series (whatever the reason 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 for 30 days in the payment when due of interest on the Securities of such series;
or



          (b) Default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Securities of such series; or



          (c) failure by the Company or any of its Subsidiaries that continues uncured for 60 days after
written notice specifying such failure to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the Securities of such
series then outstanding voting as a single class to comply with any of the other agreements in this
Indenture; or



          (d) Default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Subsidiaries (or the payment of which is Guaranteed by the Company or any of its
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the date of
this Indenture, if that Default:



34









 






          (i) is caused by a failure to pay principal of, or interest or premium, if any, on,
such Indebtedness prior to the expiration of the grace period provided in such Indebtedness
on the date of such Default (a “Payment Default”), or




          (ii) results in the acceleration of such Indebtedness prior to its express maturity,  


and, in each case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $75.0 million or more; or




          (e) the Company or any of its Subsidiaries that is a Significant
Subsidiary or any group of its Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or
within the meaning of Bankruptcy Law:




          (i) commences a voluntary case,




          (ii) consents to the entry of an order for relief against it in an involuntary case,




          (iii) consents to the appointment of a custodian of it or for all or substantially all
of its property,




          (iv) makes a general assignment for the benefit of its creditors, or




          (v) generally is not paying its debts as they become due; or



          (f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:




          (i) is for relief against the Company or any of its Subsidiaries that is a Significant
Subsidiary or any group of its Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case;




          (ii) appoints a custodian of the Company or any of its Subsidiaries that is a
Significant Subsidiary or any group of its Subsidiaries that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any
of its Subsidiaries that is a Significant Subsidiary;




          (iii) orders the liquidation of the Company or any of its Subsidiaries that is a
Significant Subsidiary; or




          (iv) and the order or decree remains unstayed and in effect for 60 consecutive days; or



          (g) except as permitted by this Indenture, any Note Guarantee of the Securities of such series
is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in
full force and effect, or any Subsidiary Guarantor, or any Person acting on behalf of any
Subsidiary Guarantor, denies or disaffirms its obligations under its Note Guarantee of the
Securities of such series; or



          (h) any other Event of Default established pursuant to Section 2.03 with respect to the
Securities of such series occurs.



35









 





          Section 6.02. Acceleration. In the case of an Event of Default specified in clause (e) or (f)
of Section 6.01 hereof, with respect to the Company or any Subsidiary of the Company that is a
Significant Subsidiary or any group of Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary, all outstanding Securities of any series will become due and payable
immediately without further action or notice. If any other Event of Default with respect to the
Securities of any series then outstanding occurs and is continuing, then, and in each and every
such case, except for any series of Securities the principal of which shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Securities of any such series then outstanding hereunder (each such series treated as a
separate class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any such series are
Original Issue Discount Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.03) of all Securities of such series, and
the interest accrued thereon, if any, and premium, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.



          The foregoing provision, however, is subject to the condition that if, at any time after the
principal (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to Section 2.03) of the
Securities of any series (or of all the Securities, as the case may be) shall have been so declared
or become due and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained by the Trustee as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all overdue installments of interest or other
payments with respect to coupons on all the Securities of each such series (or of all the
Securities, as the case may be) and the principal of, premium, if any, and interest on any and all
Securities of each such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by such declaration and acceleration (with interest upon such overdue
installments of interest or other payments with respect to principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue installments of interest
or other payments with respect to coupons on all Securities of each series, at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of each such series to the date of such payment or deposit) and such amount as
shall be sufficient to cover all amounts owing the Trustee under Section 7.07, and if any and all
Events of Default under the Indenture, other than the non-payment of the principal of Securities
which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then and in every such case the Holders of a majority in aggregate principal
amount of all the then outstanding Securities of all such series that have been accelerated (voting
as a single class), by written notice to the Company and to the Trustee, may waive all Defaults
with respect to all such series (or with respect to all the 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.



          For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared or become due and payable pursuant to
the provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be



36









 







due and payable as a result of such acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration, together with interest or
premium, if any, thereon and all other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.



          Section 6.03. Other Remedies. If an Event of Default with respect to the Securities of any
series occurs and is continuing, the Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.



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



          Section 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and Section 9.02, the
Holders of a majority in aggregate principal amount of the outstanding Securities of any series
affected (voting as a single class), by notice to the Trustee, may, on behalf of the Holders of all
of the Securities of such series, waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default or Event of Default in the payment
of principal of, premium or interest, if any, on any Security as specified in clause (a) or (b) of
Section 6.01 or in respect of a covenant or provision of this Indenture which cannot be modified or
amended without the consent of the Holder of each outstanding Security of such series affected.
Upon any such waiver, such Default shall cease to exist, and any Event of Default with respect to
the Securities of such series arising therefrom shall be deemed to have been cured for every
purpose of this Indenture and the Company, the Subsidiary Guarantors, the Trustee and the Holders
restored to their former position and rights hereunder; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent thereto.



          Section 6.05. Control by Majority. Subject to Sections 7.01 and 7.02(e), the Holders of a
majority in aggregate principal amount of the outstanding Securities of any series affected (voting
as a single class) may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in
personal liability or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders not joining in the giving of such direction; and provided further, that the
Trustee may take any other action it deems proper that is not inconsistent with any directions
received from Holders of Securities pursuant to this Section 6.05.



          Section 6.06. Limitation on Suits. No Holder of any Security of any series may institute any
proceeding, judicial or otherwise, in equity or at law, with respect to this Indenture or the
Securities of such series, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:



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



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          (b) the Holders of at least 25% in aggregate principal amount of outstanding Securities of
such series affected shall have made written request to the Trustee to institute such proceedings
in respect of such Event of Default in its own name as Trustee hereunder;



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



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



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



          A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder. The Trustee shall mail to all Holders any notice it
receives from Holders under this Section.



          Section 6.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder of a Security to receive payment of principal of or
interest or premium, if any, on such Holder’s Security on or after the respective due dates
expressed on such Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of such Holder.



          Section 6.08. Collection Suit by Trustee. If an Event of Default with respect to the
Securities of any series in payment of principal, premium or interest specified in clause 6.01(a)
or (b) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount (or such portion thereof as specified in
the terms established pursuant to Section 2.03 of Original Issue Discount Securities) of principal
of, premium, if any, and accrued interest remaining unpaid on, together with interest on overdue
principal specified in such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.07, except for such amounts arising out of the Trustee’s
negligence or bad faith.



          Section 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts due the Trustee under Section 7.07) and the Holders
allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered to collect and
receive any moneys, securities or other property payable or deliverable upon conversion or exchange
of the Securities or upon any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it under Section 7.07, except for such amounts arising out of the
Trustee’s negligence or bad faith. To the extent that the payment of any such



38









 







compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such
proceeding, 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, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding. The Trustee may, on behalf of the Holders, vote for the election of
a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.



        Section 6.10. Application of Proceeds. If the Trustee collects any money pursuant to this
Article 6 in respect of the Securities of any series, it shall
pay out the money in the following order:




          FIRST: to the Trustee, its agents and attorneys for amounts due under Section 7.07
with respect to such series of Securities, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the costs and expenses
of collection;




          SECOND: to Holders of Securities of the applicable series for amounts due and unpaid
on such Securities for principal, premium and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities of such
series for principal, premium and interest, respectively; and




          THIRD: to the Company or to such party as a court of competent jurisdiction shall
direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Securities
pursuant to this Section 6.10.



        Section 6.11. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored to their former positions hereunder and
thereafter all rights and remedies of the Company, Trustee and the Holders shall continue as though
no such proceeding had been instituted.



        Section 6.12. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, in either case in respect to the Securities of any series, a court may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and the court may assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit



39









 







having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by a Holder pursuant to Section 6.06, a suit
instituted by the Trustee or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.



          Section 6.13. Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities in Section
2.08, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.



          Section 6.14. Delay or Omission not Waiver. No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.
Subject to Section 6.06, every right and remedy given by this Article 6 or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.



ARTICLE 7

TRUSTEE




          Section 7.01. General. Except during the continuance of an Event of Default, the Trustee’s
duties and responsibilities under this Indenture shall be only those duties and responsibilities
specifically set forth in this Indenture and no implied duties or responsibilities shall be read
into this Indenture against the Trustee. In case an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture, and
shall use the same degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured. Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Article 7.



          Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a)
through (d):



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



40









 





          (b) before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
and/or an Opinion of Counsel, which shall conform to Section 11.04 and shall cover such other
matters as the Trustee may reasonably request. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion. Subject to Section
7.01 and this Section 7.02, whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith thereof;



          (c) the Trustee may act through its attorneys and agents not regularly in its employ and shall
not be responsible for the misconduct or negligence of any agent or attorney appointed with due
care, and the rights, privileges, protections, immunities and benefits given to the Trustee,
including without limitation its right to be compensated, reimbursed, and indemnified, are extended
to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each
agent, custodian and other Person employed to act hereunder;



          (d) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed);



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



          (f) the Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within its rights or powers or for any action it takes or
omits to take in accordance with the direction of the Holders in accordance with Section 6.05 or in
accordance with the request or direction of the Holders of a majority in principal amount of the
outstanding Securities of any series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture;



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



          (h) prior to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel, Board
Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or document with



41









 







respect to such series of Securities, unless requested in writing so to do by the Holders of
not less than a majority in aggregate principal amount of the Securities of any series affected
then outstanding; provided that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses
or liabilities as a condition to proceeding.



          Section 7.03. Individual Rights of Trustee and Others. The Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise deal with the
Company, any Subsidiary Guarantor or any of their respective Affiliates with the same rights it
would have if it were not the Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Trust Indenture Act Sections 310(b) and 311. To the extent permitted by the
Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under this Indenture, in its capacity as trustee in respect of the Securities of
any series or tranche, in its capacity as trustee in respect of the Securities of any other series
or any other indenture or indentures under which other securities, or certificates of interest or
participation in other securities, of the Company or any Subsidiary Guarantor are outstanding.
Nothing herein shall prevent the Trustee from filing with the Commission the application referred
to in the second to last paragraph of Section 310(b) of the Trust Indenture Act. The rights,
privileges, protections, immunities and benefits given to the Trustee, including without limitation
its right to be compensated, reimbursed, and indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the
following terms shall have the following meanings:



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



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



          Section 7.04. Trustee’s Disclaimer. The recitals contained herein and in the Securities and
the Note Guarantees (except the Trustee’s certificate of authentication) shall be taken as
statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the
correctness of the same. Neither the Trustee nor any of its agents (a) makes any representation as
to the validity or adequacy of this Indenture or the Securities or the Note Guarantees or (b) shall
be accountable for the Company’s use or application of the proceeds from the Securities.



42









 





          Section 7.05. Notice of Default. If any Default with respect to the Securities of any series
occurs and is continuing and if such Default is known to the actual knowledge of a Responsible
Officer of the Trustee, the Trustee shall give to each Holder of Securities of such series notice
of such Default within 90 days after it occurs (a) if any Unregistered Securities of such series
are then outstanding, to the Holders thereof, by publication at least once in an Authorized
Newspaper and (b) to all Holders of Securities of such series in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, unless such Default shall have been cured or
waived before the mailing or publication of such notice; provided, however, that, except in the
case of a Default or Event of Default in the payment of the principal of, premium, if any, or
interest on any Security of such series, the Trustee shall be protected in withholding such notice
if the Trustee in good faith determines that the withholding of such notice is in the interests of
the Holders.



          Section 7.06. Reports by Trustee to Holders. The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15
following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).



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



          Section 7.07. Compensation and Indemnity. The Company shall pay to the Trustee such
reasonable compensation as shall be agreed upon in writing from time to time for its services. The
compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an
express trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Trustee or in accordance
with the provisions of this Indenture, except for any such expense, disbursement or advance as may
arise from its negligence or bad faith. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s counsel and other persons not regularly in their employ.



          The Company shall indemnify the Trustee and any predecessor Trustee for, and hold them
harmless against, any loss or liability or expense incurred by them without negligence, bad faith
or willful misconduct on their part arising out of or in connection with the acceptance or
administration of this Indenture and the Securities of any series or the issuance of the Securities
or of series thereof or the trusts hereunder and the performance of duties under this Indenture and
the Securities, including the costs and expenses of defending themselves against or investigating
any claim or liability and of complying with any process served upon them or any of their officers
in connection with the exercise or performance of any of their powers or duties under this
Indenture and the Securities; provided that the Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld. The Trustee may have
separate counsel and the Company will pay the reasonable fees and expenses of such counsel. The
Trustee shall notify the Company promptly of any claim for which it may seek



43









 







indemnification; provided, however, the failure to give such notice shall not affect the right
to indemnification hereunder except to the extent of actual prejudice.



          To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, in its
capacity as Trustee, except money or property held in trust for the benefit of the Holders of
particular Securities.



          The obligations of the Company under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the defeasance or satisfaction and discharge of this Indenture, the registration or removal
of the Trustee, or the rejection or termination of this Indenture under Bankruptcy Law. Such
additional indebtedness shall be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities or coupons, and the Securities are hereby subordinated to such
senior claim. Without prejudice to any other rights available to the Trustee under applicable law,
if the Trustee renders services and incurs expenses following an Event of Default under Section
6.01(e) or Section 6.01(f) hereof, the parties hereto and the holders by their acceptance of the
Securities hereby agree that such expenses are intended to constitute expenses of administration
under any Bankruptcy Law.



          Section 7.08. Replacement of Trustee. A resignation or removal of the Trustee as Trustee with
respect to the Securities of any series and appointment of a successor Trustee as Trustee with
respect to the Securities of any series shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.



          The Trustee may resign as Trustee with respect to the Securities of any series at any time by
so notifying the Company and the Holders as specified in this Indenture in writing. The Holders of
a majority in aggregate principal amount of the outstanding Securities of any series may at any
time remove the Trustee as Trustee with respect to the Securities of such series by so notifying
the Trustee in writing and may appoint a successor Trustee with respect thereto with the consent of
the Company. The Company may remove the Trustee as Trustee with respect to the Securities of any
series if: (i) the Trustee is no longer eligible under Section 7.11; (ii) the Trustee is adjudged a
bankrupt or insolvent; (iii) a receiver or other public officer takes charge of the Trustee or its
property; or (iv) the Trustee becomes incapable of acting.



          If the Trustee resigns or is removed as Trustee with respect to the Securities of any series,
or if a vacancy exists in the office of Trustee with respect to the Securities of any series for
any reason, the Company shall use its commercially reasonable efforts to promptly appoint a
successor Trustee with respect thereto. If the successor Trustee with respect to the Securities of
any series does not deliver its written acceptance required by Section 7.09 within 30 days after
the retiring Trustee mails the notice of resignation or is removed, the retiring Trustee, the
Company or the Holders of a majority in aggregate principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect thereto.



44









 





          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in aggregate
principal amount of the then outstanding Securities of any series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.



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



          Notwithstanding replacement of the Trustee with respect to the Securities of any series
pursuant to this Section 7.08 and Section 7.09, the Company’s obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.



          Section 7.09. Acceptance of Appointment by Successor. In case of the appointment hereunder of
a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee with respect to any and
all applicable series 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
with respect to any and all applicable series of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and
subject to the lien provided for in Section 7.07, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts with respect to any and all applicable
series of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.



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



45









 







become vested with all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.



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



          No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be eligible under this Article 7 and have no conflict of interest under
Section 310(b) of the Trust Indenture Act.



          Section 7.10. Successor Trustee By Merger, Etc. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor Trustee hereunder with
the same effect as if the successor Trustee had been named as the Trustee herein; provided that
such successor shall be otherwise eligible under this Article 7. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any successor 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 7.11. Eligibility. This Indenture shall always have a Trustee who satisfies the
requirements of Trust Indenture Act Section 310(a). The Trustee shall have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published annual report of
condition.



          Section 7.12. Money Held in Trust. The Trustee shall not be liable for interest on any money
received by it hereunder except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the extent required by law
and except for money held in trust under Article 8 of this Indenture.



ARTICLE 8

SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS




          Section 8.01. Satisfaction and Discharge of Indenture. If at any time:



          (a) (i) the Company shall have paid or caused to be paid the principal of, premium, if any,
and interest on all the Securities of any series outstanding hereunder (other than Securities of
such series which have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.08) as and when the same shall have become due and payable,




     (ii) the Company shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series



46









 







which shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.08), or




         (iii) all the Securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and
payable within one year (or, in the case of securities that pay interest at a floating rate,
within the remaining term of the then current interest period) or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption,


and, in the case of clause (iii), the Company shall have irrevocably deposited or caused to be
deposited with the Trustee as trust funds the entire amount in U.S. dollars (other than moneys
repaid by the Trustee or any paying agent to the Company in accordance with Section 8.04) or U.S.
Government Obligations, maturing as to principal, premium, if any, and interest in such amounts and
at such times as will insure (without consideration of the reinvestment of such interest) the
availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption
all Securities of such series (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08 or
delivered to the Trustee for cancellation), including principal, premium, if any, and interest due
or to become due on or prior to such date of maturity or redemption as the case may be; provided,
however, in the event a petition for relief under any applicable federal or state bankruptcy,
insolvency or other similar law is filed with respect to the Company within 91 days after the
deposit and the Trustee is required to return the deposited money to the Company, the Company’s
obligations under the Indenture with respect to the Securities of such series shall not be deemed
terminated or discharged;




          (b) the Company shall have paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Securities of such series;



          (c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the satisfaction, defeasance and
discharge of the Indenture with respect to the Securities of such series have been complied with;
and



          (d) the Company has delivered to the Trustee (x) an Opinion of Counsel, by counsel of
recognized standing in respect of U.S. federal income tax matters, to the effect that Holders of
Securities of such series will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of the Company’s deposit of funds under this Section 8.01 and will be subject
to federal income tax on the same amount and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not occurred or (y) a ruling received
from the Internal Revenue Service to the same effect as the aforementioned Opinion of Counsel,


then this Indenture shall cease to be of further effect with respect to any Securities of such
series (except as to (i) rights of registration of transfer and exchange, and the Company’s right
of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of holders to receive payments of principal thereof, premium, if any, and
interest thereon, upon the original stated due dates therefor (but not upon acceleration) and


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remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the rights of the
Securityholders of such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them), and the Trustee, on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series; provided, that the rights of Holders of the Securities
to receive amounts in respect of principal of, premium, if any, and interest on the Securities held
by them shall not be delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. The Company agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection
with this Indenture or the Securities of such series.




          Section 8.02. Application by Trustee of Funds Deposited for Payment of Securities. Subject to
Section 8.04, all moneys (including U.S. Government Obligations and the proceeds thereof) deposited
with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06 shall be held in trust and
applied by the Trustee in accordance with the provisions of such Securities and the Indenture to
the payment, either directly or through any Paying Agent (other than the Company acting as its own
Paying Agent) to the Holders of the particular Securities of such series for the payment or
redemption of which such moneys have been deposited with the Trustee, of all sums due and to become
due thereon for principal, 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 8.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction
and discharge of this Indenture with respect to Securities of any series, all moneys then held by
any Paying Agent, other than the Trustee, under the provisions of this Indenture with respect to
such series of Securities shall, upon and in accordance with the demand of the Company, be repaid
to it or paid to the Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.



          Section 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any
moneys deposited with or paid to the Trustee or any Paying Agent for the payment of the principal
of or interest or premium, if any, on any Security of any series and not applied but remaining
unclaimed for two years after the date upon which such principal, interest or premium, if any,
shall have become due and payable, shall, upon the written request of the Company and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Company by the Trustee for such series or such Paying Agent, and the Holder
of the Security of such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect, and all liability of the Trustee or any
Paying Agent with respect to such moneys shall thereupon cease.



          Section 8.05. Defeasance and Discharge of Indenture. The Company and each Subsidiary
Guarantor shall be deemed to have paid and shall be discharged from any and all



48









 







obligations in respect of the Securities of any series, on the 123rd day after the deposit
referred to in clause (a) hereof has been made, and the provisions of this Indenture shall no
longer be in effect with respect to the Securities of such series (and the Trustee, upon request
and at the expense of the Company, shall execute proper instruments acknowledging the same), except
as to: (1) rights of registration of transfer and exchange, and the Company’s right of optional
redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities,
(3) rights of holders to receive payments of principal thereof, premium, if any, and interest
thereon, upon the original stated due dates therefor (but not upon acceleration) and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (4) the rights,
obligations and immunities of the Trustee hereunder and (5) the rights of the Securityholders of
such series as beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them; provided that the following conditions shall have been satisfied:



          (a) with reference to this provision, the Company has deposited or caused to be irrevocably
deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series, money or the equivalent in U.S.
Government Obligations, or any combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification delivered to
the Trustee, for payment of all (x) the principal of, premium, if any, and each installment of
interest on the outstanding Securities of such series on the due dates thereof and (y) any
mandatory sinking fund payments or analogous payments applicable to the Securities of such series
on the day on which such payments are due and payable in accordance with the terms of Securities of
such series and the Indenture with respect to the Securities of such series;



          (b) the deposit does not cause the Trustee with respect to the Securities to have a
conflicting interest (within the meaning of Section 310(b) of the Trust Indenture Act) with respect
to the Securities of such series;



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



          (d) on the date of such deposit, (i) there is no continuing 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, and (ii) no Event of Default under the
provisions of Section 6.01(e) or Section 6.01(f) or event which, with notice or lapse of time or
both, would become an Event of Default under such bankruptcy or insolvency provisions shall have
occurred and be continuing on the 91st day after such date; and



          (e) the Company has delivered to the Trustee (x) an Opinion of Counsel, by counsel of
recognized standing in respect of U.S. federal income tax matters, to the effect that Holders of
Securities of such series will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of the Company’s exercise of its option under this Section 8.05 and will be
subject to federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not occurred or (y) a ruling
received from the Internal Revenue Service to the same effect as the aforementioned Opinion of
Counsel.



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          Section 8.06. Defeasance of Certain Obligations. Section 6.01(c) and Section 6.01(d) shall no
longer constitute an Event of Default; provided the following conditions have been satisfied:



          (a) with reference to this provision the Company has deposited or caused to be irrevocably
deposited with the Trustee (or another qualifying trustee satisfying the requirements of Section
7.11) 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 which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day before the due date of any payment
referred to in subclause (x) or (y) of this clause (i) money in an amount, or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and
discharge without consideration of the reinvestment of such interest and after payment of all
federal, state and local taxes or other charges and assessments in respect thereof payable by the
Trustee (x) the principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the due dates thereof and (y) any mandatory sinking fund payments or
analogous payments applicable to the Securities of such series on the day on which such payments
are due and payable in accordance with the terms of Securities of such series and the Indenture
with respect to the Securities of such series;



          (b) on the date of such deposit, no Event of Default, or event (including such deposit) that,
after the giving of notice or lapse of time or both, would become an Event of Default, shall have
occurred and be continuing;



          (c) the deposit does not cause the Trustee with respect to the Securities to have a
conflicting interest (within the meaning of Section 310(b) of the Trust Indenture Act) with respect
to the Securities of such series;



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



          (e) the Company has delivered to the Trustee (x) an Opinion of Counsel, by counsel of
recognized standing in respect of U.S. federal income tax matters, to the effect that Holders of
Securities of such series will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of the Company’s exercise of its option under this Section 8.06 and will be
subject to federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not occurred or (y) a ruling
received from the Internal Revenue Service to the same effect as the aforementioned Opinion of
Counsel.



          Notwithstanding the foregoing, if the Company exercises its option with respect to the
Securities of a series under this Section 8.06 and an Event of Default under the provisions of
Section 6.01(e) or Section 6.01(f) or event which, with notice or lapse of time or both, would
become an Event of Default under such bankruptcy or insolvency provisions shall have occurred and
be continuing on the 91st day after the date of such deposit referred to in clause (a) above,



50









 







the obligation of the Company and each Subsidiary Guarantor to comply with Section 6.01(c)
with respect to the Securities of such series shall be reinstated.



          Section 8.07. Reinstatement. If the Trustee or Paying Agent is unable to apply any monies or
U.S. Government Obligations in accordance with this Article 8 to pay any principal, premium, if
any, or interest, if any, with respect to the Securities of any series by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s and each Subsidiary
Guarantor’s obligations under this Indenture and the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until such time as the
Trustee or Paying Agent is permitted to apply all such monies or U.S. Government Obligations in
accordance with this Article 8; provided, however, that if the Company has made any payment of
principal of, premium, if any, or interest, if any, on any Securities of such series because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the monies or U.S. Government Obligations held by the
Trustee or Paying Agent.



          Section 8.08. Indemnity. The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.08 and Section 8.02, the “Trustee”) against
any tax, fee or other charge, imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.01, 8.05 or 8.06 or the principal or interest received in respect
thereof other than any such tax, fee or other charge which by law is for the account of the Holders
of the Securities and any coupons appertaining thereto.



          Section 8.09. Excess Funds. Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon request of the Company any money
or U.S. Government Obligations (or other property and any proceeds therefrom) held by it as
provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be deposited to effect
a discharge or defeasance, as applicable, in accordance with this Article 8.



          Section 8.10. Qualifying Trustee. Any trustee appointed pursuant to Section 8.05 or 8.06 for
the purpose of holding money or U.S. Government Obligations deposited pursuant to such Sections
shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the
Trustee a certificate, upon which certificate the Trustee shall be entitled to conclusively rely,
that all conditions precedent provided for herein to the related defeasance have been complied
with. In no event shall the Trustee be liable for any acts or omissions of said trustee.



ARTICLE 9

AMENDMENTS, SUPPLEMENTS AND WAIVERS




          Section 9.01. Amendments Without Consent of Holders. The Company, each Subsidiary Guarantor
and the Trustee may, at any time and from time to time, amend the Indenture or the Securities of
any series without notice to or the consent of any Holder for any of the following purposes:



51









 






          (i) to effect the assumption of the Company’s or any Subsidiary Guarantor’s obligations
under this Indenture by a successor Person;




          (ii)
to impose additional covenants and Events of Default or to add Note Guarantees of other
Persons for the benefit of the Holders;




          (iii) to add or change any of the provisions of this Indenture relating to the issuance
or exchange of the Securities of such series in registered form, but only if such action
does not adversely affect the interests of the Holders of the outstanding Securities of such
series or related coupons in any material respect;




          (iv) to change or eliminate any of the provisions of this Indenture, but only if the
change or elimination becomes effective when there are no outstanding Securities of any
series, or related coupon, which are entitled to the benefit of such provision and as to
which such modification would apply;




          (v) to secure the Securities of any series;




          (vi) to supplement any of the provisions of this Indenture to permit or facilitate the
defeasance and discharge of the Securities of any series, but only if such action does not
adversely affect the interests of the Holders of outstanding Securities of any series or
related coupons in any material respect;




          (vii) to establish the form or terms of the Securities of any series and coupons, if
any, of any Securities of such series as permitted by this Indenture;




          (viii) to evidence and provide for the acceptance of appointment by a successor Trustee
and to add to or change any of the provisions of this Indenture to facilitate the
administration of the trusts by more than one Trustee;




          (ix) to correct any mistakes or defects in this Indenture, but only if such action does
not adversely affect the interests of the Holders of outstanding Securities or related
coupons in any material respect or otherwise amend this Indenture in any respect that does
not adversely affect the interests of the Holders of outstanding Securities or related
coupons;




          (x) to conform the text of this Indenture, the Securities or the Note Guarantees to any
provision of a description of such Securities appearing in a prospectus or prospectus
supplement or an offering memorandum or offering circular pursuant to which such Securities
were offered to the extent that such provision was intended to be a verbatim recitation of a
provision of this Indenture, the Securities or the Note Guarantees;




          (xi) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee
with respect to the Securities of a particular series; and




          (xii) to comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act.



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         Section 9.02. Amendments with Consent of Holders. (a) Subject to Section 9.02(b), the
Company, each Subsidiary Guarantor and the Trustee may amend the Indenture and the Securities of
any series, with the consent of the Holders of not less than a majority in principal amount of the
Securities affected by such modification, to add, change or eliminate any provision of, or to
modify the rights of such Holders under, the Indenture.



         (b) Notwithstanding the provisions of Section 9.02(a), without the consent of each Holder of
outstanding Securities of any series affected, an amendment or waiver may not




          (i) change the stated maturity of the principal of, or any installment of interest on,
the Securities of any series (or related coupon), reduce the principal amount thereof, the
interest thereon or any premium payable upon redemption thereof or change the currency or
currencies in which the principal, premium or interest is denominated or payable;




          (ii) reduce the amount of, or impair the right to institute suit for the enforcement
of, any payment on the Securities of any series following maturity thereof;




          (iii) reduce the percentage in principal amount of the outstanding Securities of any
series required for consent to any waiver of Defaults or compliance with the provisions of
this Indenture with respect to such series;




          (iv) release any Subsidiary Guarantor from any of its obligations under its Note
Guarantee or this Indenture, except in accordance with the terms of this Indenture; or




          (v) modify any provision of this Indenture relating to modifications and waivers of
Defaults and covenants, except to increase any such percentage or to provide that certain
other provisions cannot be modified or waived without the consent of each Holder of
outstanding Securities affected thereby.



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



         It shall not be necessary for the consent of any Holder under this Section 9.02 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.



         An amendment, supplement or waiver under this Section shall become effective on receipt by the
Trustee of written consents from the Holders of the requisite percentage in principal amount of the
outstanding Securities affected thereby. After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall give to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company shall mail supplemental
indentures to Holders upon written request. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or



53









 







affect the validity of any such supplemental indenture or waiver or constitute a Default or
Event of Default hereunder.



          Section 9.03. Revocation and Effect of Consent. Until an amendment or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to its Security or portion of its Security.
Such revocation shall be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective.



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



          After an amendment, supplement or waiver becomes effective with respect to the Securities of
any series affected thereby, it shall bind every Holder of such Securities unless it is of the type
described in Section 9.02, in which case the amendment or waiver shall bind each such Holder who
has consented to it and every subsequent Holder of a Security that evidences the same indebtedness
as the Security of the consenting Holder.



          Section 9.04. Notation on or Exchange of Securities. If an amendment, supplement or waiver
changes the terms of any Security, the Trustee may require the Holder thereof to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on any Security of such
series thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security
of the same series and tenor that reflects the changed terms.



          Section 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, stating that all requisite consents have been obtained or that no consents are
required and stating that such supplemental indenture constitutes the legal, valid and binding
obligation of the Company and each Subsidiary Guarantor, enforceable against the Company and each
Subsidiary Guarantor in accordance with its terms, subject to customary exceptions. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or waiver that affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise.



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          Section 9.06. Conformity With Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article 9 shall conform to the requirements of the Trust Indenture Act.



ARTICLE 10

SUBSIDIARY GUARANTORS




          Section 10.01. Guarantees.



          (a) Each Subsidiary Guarantor hereby irrevocably and unconditionally guarantees, as a primary
obligor and not merely as a surety, the due and punctual payment and performance of all of the
Guaranteed Obligations of such Subsidiary Guarantor, jointly with any other Subsidiary Guarantors
and severally. Each Subsidiary Guarantor further agrees that its Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice to or further assent from it, and that it
will remain bound upon its guarantee notwithstanding any extension or renewal of any such
Guaranteed Obligation. Each Subsidiary Guarantor waives presentment to, demand of payment from and
protest to the Company or any Subsidiary Guarantor of any of its Guaranteed Obligations, and also
waives notice of acceptance of its guarantee, notice of protest for nonpayment and all similar
formalities.



          (b) Each Subsidiary Guarantor further agrees that its guarantee hereunder constitutes a
guarantee of payment when due and not of collection, and waives any right to require that any
resort be had by the Trustee or any Holder to any security held for the payment of its Guaranteed
Obligations or to any balance of any deposit account or credit on the books of the Trustee or any
Holder in favor of the Company.



          (c) Except for termination of a Subsidiary Guarantor’s obligations hereunder or a release of
such Subsidiary Guarantor pursuant to Section 10.08, the obligations of each Subsidiary Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Guaranteed Obligations of such Subsidiary
Guarantor or otherwise. Without limiting the generality of the foregoing, the obligations of each
Subsidiary Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the
failure of the Trustee or any Holder to assert any claim or demand or to enforce any right or
remedy under the provisions of this Indenture or otherwise; (ii) any rescission, waiver, amendment
or modification of, or any release from any of the terms or provisions of, this Indenture or any
other agreement, including with respect to any other Subsidiary Guarantor under this Agreement;
(iii) any Default, failure or delay, willful or otherwise, in the performance of the Guaranteed
Obligations of such Subsidiary Guarantor; or (iv) any other act or omission that may or might in
any manner or to any extent vary the risk of such Subsidiary Guarantor or otherwise operate as a
discharge of such Subsidiary Guarantor as a matter of law or equity (other than the indefeasible
payment in full in cash of all the Guaranteed Obligations of such Subsidiary Guarantor).



          (d) To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any
defense based on or arising out of any defense of the Company or any other Subsidiary Guarantor or
the unenforceability of the Guaranteed Obligations of such Subsidiary



55









 







Guarantor or any part thereof from any cause, or the cessation from any cause of the liability
of the Company or any other Subsidiary Guarantor, other than the indefeasible payment in full in
cash of all the Guaranteed Obligations of such Subsidiary Guarantor. The Trustee may, at its
election, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation
with the Company or any Subsidiary Guarantor or exercise any other right or remedy available to
them against the Company or any Subsidiary Guarantor, in each case without affecting or impairing
in any way the liability of any Subsidiary Guarantor hereunder except to the extent the Guaranteed
Obligations of such Subsidiary Guarantor have been fully and indefeasibly paid in full in cash. To
the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any defense
arising out of any such election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such
Subsidiary Guarantor against the Company or any other Subsidiary Guarantor, as the case may be.



          (e) Each Subsidiary Guarantor agrees that its guarantee hereunder shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any
Guaranteed Obligation of such Subsidiary Guarantor is rescinded or must otherwise be restored by
the Trustee upon the bankruptcy or reorganization of the Company, any other Subsidiary Guarantor or
otherwise.



          (f) Each Subsidiary Guarantor agrees that it will not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the
maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event
of any declaration of acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and payable by the
Subsidiary Guarantors for the purpose of this Note Guarantee.



          Section 10.02. Limitation on Liability. Any term or provision of this Indenture to the
contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed
hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.



          Section 10.03. Successors and Assigns. This Article 10 shall be binding upon each Subsidiary
Guarantor and its successors and assigns and shall inure to the benefit of the successors,
transferees and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that
party in this Indenture and in the Securities shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions of this Indenture.



          Section 10.04. No Waiver. Neither a failure nor a delay on the part of either the Trustee or
the Holders in exercising any right, power or privilege under this Article 10 shall operate as a



56









 







waiver thereof, nor shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies
or benefits which either may have under this Article 10 at law, in equity, by statute or otherwise.



          Section 10.05. Modification. No modification, amendment or waiver of any provision of this
Article 10, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Trustee, and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such Subsidiary
Guarantor to any other or further notice or demand in the same, similar or other circumstances.



          Section 10.06. Execution and Delivery of Note Guarantee. To evidence its Note Guarantee set
forth in Section 10.01 hereof, each Subsidiary Guarantor hereby agrees that a notation of such Note
Guarantee shall be substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one or more indentures
supplemental hereto, and shall be endorsed by an Officer of such Subsidiary Guarantor on each
Security authenticated and delivered by the Trustee and that this Indenture will be executed on
behalf of such Subsidiary Guarantor by one of its Officers.



          Each Subsidiary Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01
hereof will remain in full force and effect notwithstanding any failure to endorse on each Security
a notation of such Note Guarantee.



          If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Security on which a Note Guarantee is
endorsed, the Note Guarantee will be valid nevertheless.



          The delivery of any Security by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of each
Subsidiary Guarantor.



          In the event that the Company or any of its Subsidiaries creates or
acquires any Subsidiary after the date of this Indenture, if required by Section 4.10 hereof, the Company will
cause such Subsidiary to comply with the provisions of Section 4.10 hereof and this
Article 10, to the extent applicable.



          Section 10.07. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.



          (a) Except as otherwise provided in Section 10.08 hereof, no Subsidiary Guarantor may sell or
otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with
or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, other
than the Company or another Subsidiary Guarantor, unless immediately after giving effect to such
transaction, no Default or Event of Default exists.



          (b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by
the successor Person, by supplemental indenture, executed and delivered to the



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Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the
Securities and the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Subsidiary Guarantor, such successor Person will succeed to and be
substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued
will in all respects have the same legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as
though all of such Note Guarantees had been issued at the date of the execution hereof.



          (c) Except as set forth in Articles 4 and 5 hereof, and notwithstanding Section 10.07(a) and
(b), nothing contained in this Indenture or in any of the Securities will prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or another Subsidiary
Guarantor, or will prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary Guarantor.



          Section 10.08. Release of Subsidiary Guarantor. A Subsidiary Guarantor shall cease to
constitute a Subsidiary Guarantor, and its Note Guarantee shall be deemed cancelled, cease to be of
further force and effect, and is hereby released from its obligations under this Article 10 (other
than any obligation that may have arisen under this Section 10.08):



          (a) upon the sale (including any sale pursuant to any exercise of remedies by a holder of
Indebtedness of the Company or of such Subsidiary Guarantor) or other disposition (including by way
of consolidation or merger) of a Subsidiary Guarantor;



          (b) upon the sale or disposition of all or substantially all the assets of such Subsidiary
Guarantor;



          (c) upon such Subsidiary Guarantor’s being released as a borrower or guarantor under the
Restated Credit Agreement;



          (d) unless there is then existing an Event of Default, at such time and for so long as any
such Subsidiary Guarantor that became a Subsidiary Guarantor pursuant to Section 4.10 does not
Guarantee any Indebtedness that would have required such Subsidiary Guarantor to enter into a
supplemental indenture pursuant to Section 4.10 and the Company provides an Officers’ Certificate
to the Trustee certifying that no such Guarantee is outstanding and the Company elects to have such
Subsidiary Guarantor released from this Article 10; or



          (e) upon the exercise by the Company of its legal defeasance option or its covenant defeasance
option or if the Obligations of the Company under the Indenture and the Securities are discharged
pursuant to Article 8;


provided, however, that in the case of clauses (a) and (b) above, (i) such sale or other
disposition is made to a Person other than the Company or a Subsidiary of the Company, (ii) such
sale or


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disposition is otherwise permitted by this Indenture and (iii) the Company complies with its
obligations under Section 5.01.



At the request of the Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.




          Section 10.09. Contribution. Each Subsidiary Guarantor that makes a payment under its Note
Guarantee shall be entitled upon payment in full of all Guaranteed Obligations under this Indenture
to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary
Guarantor’s pro rata portion of such payment based on the respective net assets of all the
Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.



ARTICLE 11

MISCELLANEOUS




          Section 11.01. Trust Indenture Act of 1939. This Indenture shall incorporate and be governed
by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.



          Section 11.02. Notices. Any notice or communication shall be sufficiently given if written
and (a) if delivered in person when received or (b) if mailed by first class mail 5 days after
mailing or (c) as between the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:



          if to the Company and/or any Subsidiary Guarantor:


TD AMERITRADE Holding Corporation

6940 Columbia Gateway Drive

Columbia, Maryland 21046

Facsimile No.: (443) 539-2209

Attention: General Counsel




          with a copy to:


Sidley Austin LLP

One South Dearborn Street

Chicago, Illinois 60603

Facsimile No.: (312) 853-7036

Attention: Lisa J. Reategui, Esq.




          if to the Trustee:


The Bank of New York Mellon Trust Company, National Association

2 North LaSalle Street, Suite 1020

Chicago, Illinois 60602

Facsimile No.: (312) 827-8542

Attention: Corporate Trust




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



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



          Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this Section 11.02, it is duly given,
whether or not the addressee receives it.



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



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



          Section 11.03. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:



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



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



          Section 11.04. Statements Required in Certificate or Opinion. Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than
the certificate required by Section 4.03) shall include:



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



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



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



          (d) a statement as to whether or not, in the opinion of each such person, such condition or
covenant has been complied with.



          Section 11.05. Forms of Documents Delivered to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.



          Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer or counsel knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any 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 rendering such Opinion of 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 11.06. Evidence of Ownership. The Company, the Trustee and any agent of the Company
or the Trustee may deem and treat the Holder of any Unregistered Security and the Holder of any
coupon as the absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving payment thereof or
on account thereof and for all other purposes, and neither the Company, the Trustee, nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary. The fact of the
holding by any Holder of an Unregistered Security, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on the date thereof a
Security bearing a specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named in such certificate. Any
such certificate may be issued in respect of one or more Unregistered Securities specified therein.
The holding by the person named in any such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one year from the date of such certificate
unless at the time of any determination of such holding (1) another certificate



61









 







bearing a later date issued in respect of the same Securities shall be produced or (2) the
Security specified in such certificate shall be produced by some other Person or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject to Article 7, the fact
and date of the execution of any such instrument and the amount and numbers of Securities held by
the Person so executing such instrument may also be proven in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in any other manner which the Trustee may
deem sufficient.



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



          Section 11.07. Rules by Trustee, Paying Agent or Registrar. The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable
rules for its functions.



          Section 11.08. Payment Date Other Than a Business Day. Except as otherwise provided with
respect to a series of Securities, if any date for payment of principal, premium, if any, or
interest on any Security shall not be a Business Day at any place of payment, then payment of
principal of, premium, if any, or interest on such Security, as the case may be, need not be made
on such date, but may be made on the next succeeding Business Day at any place of payment with the
same force and effect as if made on such date and no interest shall accrue in respect of such
payment for the period from and after such date.



          Section 11.09. Governing Law. The laws of the State of New York shall govern this Indenture
and the Securities, without regard to conflicts of law principles thereof.



          Section 11.10. No Adverse Interpretation of Other Agreements. This Indenture may not be used
to interpret another indenture or loan or debt agreement of the Company or any Subsidiary of the
Company. Any such indenture or agreement may not be used to interpret this Indenture.



          Section 11.11. Successors. All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of each Subsidiary Guarantor shall bind its successors,
except as otherwise provided by Section 10.08 hereof. All agreements of the Trustee in this
Indenture shall bind its successors.



          Section 11.12. Duplicate Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



62









 





          Section 11.13. Separability. In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



          Section 11.14. Table of Contents, Headings, Etc. The Table of Contents and headings of the
Articles and Sections of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.



          Section 11.15. Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in
this Indenture or any indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against any incorporator,
as such or against any past, present or future stockholder, officer, director or employee, as such,
of the Company, any Subsidiary Guarantor or of any successor of the foregoing, either directly or
through the Company or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities and the coupons
appertaining thereto by the holders thereof and as part of the consideration for the issue of the
Securities and the coupons appertaining thereto.



          Section 11.16. Force Majeure. In no event shall the Trustee be responsible or liable, nor
shall the Company or any Subsidiary Guarantor be responsible or liable to the Trustee, for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee or the Company
or the Subsidiary Guarantors, as the case may be, shall use reasonable efforts which are consistent
with accepted practices to resume performance as soon as practicable under the circumstances.



          Section 11.17. Communication by Holders of Securities with Other Holders of Securities.
Holders of Securities of any series may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders of that series with respect to their rights under this Indenture or the
applicable Securities. The Company, the Trustee, the Registrar and anyone else shall have the
protection of Trust Indenture Act Section 312(c).



[Signatures follow on next page]




63









 








SIGNATURES




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



TD AMERITRADE HOLDING CORPORATION,

as Issuer




By:
     /s/
Fredric J. Tomczyk
                           
                           
        

Name: Fredric J. Tomczyk

Title:   President and Chief Executive Officer




TD AMERITRADE ONLINE HOLDINGS CORP.,

as Subsidiary Guarantor




By:
     /s/
Fredric J. Tomczyk
                            
                           
       

Name: Fredric J. Tomczyk

Title:   President




THE BANK OF NEW YORK MELLON TRUST COMPANY,

NATIONAL ASSOCIATION,

as Trustee




By:
     /s/
Sharon K. McGrath
                           
                           
           

Name: Sharon K. McGrath

Title:   Vice President