Exhibit
4.1


 


EXECUTION
COPY


 


UNITED RENTALS, INC.


 


as the Company


 


to


 


THE BANK OF NEW YORK MELLON


 


as Trustee


 






 


Indenture


 


Dated as of November 17,
2009


 






 


$172,500,000


 


4.00% Convertible Senior
Notes due 2015


 

















 


CROSS REFERENCE TABLE(1)


 


	
  Trust

  Selection

  	
   

  	
  Indenture

  	
   

  	
  Act Indenture

  Section

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
   

  	
   

  	
   

  	
  6.09

  
	
  310(a)(2)

  	
   

  	
   

  	
   

  	
   

  	
  6.09

  
	
  310(a)(3)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.(2)

  
	
  310(a)(4)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  310(a)(5)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  310(b)

  	
   

  	
   

  	
   

  	
   

  	
  6.08; 6.10

  
	
  310(c)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
   

  	
   

  	
   

  	
  6.13

  
	
  311(b)

  	
   

  	
   

  	
   

  	
   

  	
  6.13

  
	
  311(c)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
   

  	
   

  	
   

  	
  7.01; 7.02

  
	
  312(b)

  	
   

  	
   

  	
   

  	
   

  	
  7.02

  
	
  312(c)

  	
   

  	
   

  	
   

  	
   

  	
  7.02

  
	
  313(a)

  	
   

  	
   

  	
   

  	
   

  	
  7.03

  
	
  313(b)

  	
   

  	
   

  	
   

  	
   

  	
  7.03

  
	
  313(c)

  	
   

  	
   

  	
   

  	
   

  	
  1.06; 7.03

  
	
  313(d)

  	
   

  	
   

  	
   

  	
   

  	
  7.03

  
	
  314(a)

  	
   

  	
   

  	
   

  	
   

  	
  7.04

  
	
  314(a)(4)

  	
   

  	
   

  	
   

  	
   

  	
  1.03; 10.05

  
	
  314(b)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  314(c)(1)

  	
   

  	
   

  	
   

  	
   

  	
  1.03

  
	
  314(c)(2)

  	
   

  	
   

  	
   

  	
   

  	
  1.03

  
	
  314(c)(3)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  314(d)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  314(e)

  	
   

  	
   

  	
   

  	
   

  	
  1.03

  
	
  314(f)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
   

  	
   

  	
   

  	
  6.01

  
	
  315(b)

  	
   

  	
   

  	
   

  	
   

  	
  6.02

  
	
  315(c)

  	
   

  	
   

  	
   

  	
   

  	
  6.01

  
	
  315(d)

  	
   

  	
   

  	
   

  	
   

  	
  6.01

  
	
  315(e)

  	
   

  	
   

  	
   

  	
   

  	
  5.14

  
	
  316(a)(1)(A)

  	
   

  	
   

  	
   

  	
   

  	
  5.12

  
	
  316(a)(1)(B)

  	
   

  	
   

  	
   

  	
   

  	
  5.13

  
	
  316(a)(2)

  	
   

  	
   

  	
   

  	
   

  	
  N.A.

  
	
  316(a)(last sentence)

  	
   

  	
   

  	
   

  	
   

  	
  1.01(3)

  



 






(1)       Note: This Cross Reference Table shall
not, for any purpose, be deemed part of this Indenture.  


 


(2)       Not Applicable.


 


(3)       Definition of “Outstanding.”


 

















 


	
  Trust

  Selection

  	
   

  	
  Indenture

  	
   

  	
  Act Indenture

  Section

  
	
  316(b)

  	
   

  	
   

  	
   

  	
   

  	
  5.07; 5.08

  
	
  316(c)

  	
   

  	
   

  	
   

  	
   

  	
  1.04

  
	
  317(a)(1)

  	
   

  	
   

  	
   

  	
   

  	
  5.03

  
	
  317(a)(2)

  	
   

  	
   

  	
   

  	
   

  	
  5.03; 5.04

  
	
  317(b)

  	
   

  	
   

  	
   

  	
   

  	
  10.03

  
	
  318(a)

  	
   

  	
   

  	
   

  	
   

  	
  1.07

  



 


ii

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Definitions
  and Other Provisions of General Application

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.02.

  	
  Compliance Certificates and Opinions

  	
   

  	
  12

  
	
  SECTION 1.03.

  	
  Form of Documents Delivered to Trustee

  	
   

  	
  13

  
	
  SECTION 1.04.

  	
  Acts of Holders; Record Dates

  	
   

  	
  13

  
	
  SECTION 1.05.

  	
  Notices to Trustee or the Company

  	
   

  	
  15

  
	
  SECTION 1.06.

  	
  Notice to Holders; Waiver

  	
   

  	
  16

  
	
  SECTION 1.07.

  	
  Conflict with Trust Indenture Act

  	
   

  	
  16

  
	
  SECTION 1.08.

  	
  Effect of Headings and Table of Contents

  	
   

  	
  16

  
	
  SECTION 1.09.

  	
  Successors and Assigns

  	
   

  	
  16

  
	
  SECTION 1.10.

  	
  Separability Clause

  	
   

  	
  16

  
	
  SECTION 1.11.

  	
  Benefits of Indenture

  	
   

  	
  17

  
	
  SECTION 1.12.

  	
  Governing Law

  	
   

  	
  17

  
	
  SECTION 1.13.

  	
  Legal Holidays

  	
   

  	
  17

  
	
  SECTION 1.14.

  	
  Waiver of Jury Trial

  	
   

  	
  17

  
	
  SECTION 1.15.

  	
  Force Majeure

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Security
  Forms

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Form and Dating

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The
  Securities

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Title and Terms

  	
   

  	
  18

  
	
  SECTION 3.02.

  	
  Denominations

  	
   

  	
  18

  
	
  SECTION 3.03.

  	
  Execution and Authentication

  	
   

  	
  18

  
	
  SECTION 3.04.

  	
  Temporary Securities

  	
   

  	
  19

  
	
  SECTION 3.05.

  	
  Registration, Registration of Transfer and Exchange

  	
   

  	
  20

  
	
  SECTION 3.06.

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
   

  	
  21

  
	
  SECTION 3.07.

  	
  Payment of Interest; Rights Preserved

  	
   

  	
  21

  
	
  SECTION 3.08.

  	
  Persons Deemed Owners

  	
   

  	
  22

  
	
  SECTION 3.09.

  	
  Cancellation

  	
   

  	
  22

  
	
  SECTION 3.10.

  	
  Computation of Interest

  	
   

  	
  23

  
	
  SECTION 3.11.

  	
  CUSIP and CINS Numbers

  	
   

  	
  23

  
	
  SECTION 3.12.

  	
  Deposits of Monies

  	
   

  	
  23

  
	
  SECTION 3.13.

  	
  Issuance of Additional Securities

  	
   

  	
  23

  



 

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Satisfaction
  and Discharge

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Satisfaction and Discharge of Indenture

  	
   

  	
  24

  
	
  SECTION 4.02.

  	
  Application of Trust Money

  	
   

  	
  25

  
	
  SECTION 4.03.

  	
  Paying Agent to Repay Monies Held

  	
   

  	
  25

  
	
  SECTION 4.04.

  	
  Reinstatement

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Remedies

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Events of Default

  	
   

  	
  25

  
	
  SECTION 5.02.

  	
  Acceleration of Maturity; Rescission and Annulment

  	
   

  	
  27

  
	
  SECTION 5.03.

  	
  Collection of Indebtedness and Suits for Enforcement
  by Trustee

  	
   

  	
  28

  
	
  SECTION 5.04.

  	
  Trustee May File Proofs of Claim

  	
   

  	
  29

  
	
  SECTION 5.05.

  	
  Trustee May Enforce Claims Without Possession
  of Securities

  	
   

  	
  29

  
	
  SECTION 5.06.

  	
  Application of Money Collected

  	
   

  	
  30

  
	
  SECTION 5.07.

  	
  Limitation
  on Suits

  	
   

  	
  30

  
	
  SECTION 5.08.

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest

  	
   

  	
  31

  
	
  SECTION 5.09.

  	
  Restoration of Rights and Remedies

  	
   

  	
  31

  
	
  SECTION 5.10.

  	
  Rights and Remedies Cumulative

  	
   

  	
  31

  
	
  SECTION 5.11.

  	
  Delay or Omission Not Waiver

  	
   

  	
  31

  
	
  SECTION 5.12.

  	
  Control by Holders

  	
   

  	
  31

  
	
  SECTION 5.13.

  	
  Waiver of Past Defaults

  	
   

  	
  32

  
	
  SECTION 5.14.

  	
  Undertaking for Costs

  	
   

  	
  32

  
	
  SECTION 5.15.

  	
  Waiver of Stay or Extension Laws

  	
   

  	
  32

  
	
  SECTION 5.16.

  	
  Additional Interest

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The
  Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Certain Duties and Responsibilities

  	
   

  	
  33

  
	
  SECTION 6.02.

  	
  Notice of Defaults

  	
   

  	
  34

  
	
  SECTION 6.03.

  	
  Certain Rights of Trustee

  	
   

  	
  34

  
	
  SECTION 6.04.

  	
  Not Responsible for Recitals or Issuance of
  Securities

  	
   

  	
  36

  
	
  SECTION 6.05.

  	
  May Hold Securities

  	
   

  	
  36

  
	
  SECTION 6.06.

  	
  Money Held in Trust

  	
   

  	
  36

  
	
  SECTION 6.07.

  	
  Compensation and Reimbursement

  	
   

  	
  36

  
	
  SECTION 6.08.

  	
  Conflicting Interests

  	
   

  	
  37

  
	
  SECTION 6.09.

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  37

  
	
  SECTION 6.10.

  	
  Resignation and Removal;
  Appointment of Successor

  	
   

  	
  37

  



 






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


 


ii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 6.11.

  	
  Acceptance of Appointment by Successor

  	
   

  	
  38

  
	
  SECTION 6.12.

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
   

  	
  39

  
	
  SECTION 6.13.

  	
  Preferential Collection of Claims Against the
  Company

  	
   

  	
  39

  
	
  SECTION 6.14.

  	
  Appointment of Authenticating Agent

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Holders’
  Lists and Reports by Trustee and Company

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Company to Furnish Trustee Names and Addresses of
  Holders

  	
   

  	
  41

  
	
  SECTION 7.02.

  	
  Preservation of Information; Communications to
  Holders

  	
   

  	
  41

  
	
  SECTION 7.03.

  	
  Reports by Trustee

  	
   

  	
  41

  
	
  SECTION 7.04.

  	
  Reports by Company

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Consolidation,
  Merger, Conveyance, Transfer or Lease

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Company May Consolidate, Etc. Only on Certain
  Terms

  	
   

  	
  42

  
	
  SECTION 8.02.

  	
  Successor Substituted

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Amendments;
  Waivers; Supplemental Indentures

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Amendments, Waivers and Supplemental Indentures
  Without Consent of Holders

  	
   

  	
  43

  
	
  SECTION 9.02.

  	
  Modifications, Amendments and Supplemental
  Indentures with Consent of Holders

  	
   

  	
  43

  
	
  SECTION 9.03.

  	
  Execution of Supplemental Indentures

  	
   

  	
  44

  
	
  SECTION 9.04.

  	
  Effect of Supplemental Indentures

  	
   

  	
  44

  
	
  SECTION 9.05.

  	
  Conformity with Trust Indenture Act

  	
   

  	
  45

  
	
  SECTION 9.06.

  	
  Reference in Securities to Supplemental Indentures

  	
   

  	
  45

  
	
  SECTION 9.07.

  	
  Waiver of Certain Covenants

  	
   

  	
  45

  
	
  SECTION 9.08.

  	
  No Liability for Certain Persons

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Covenants

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Payment of Principal, Premium and Interest

  	
   

  	
  45

  
	
  SECTION 10.02.

  	
  Maintenance of Office or Agency

  	
   

  	
  46

  
	
  SECTION 10.03.

  	
  Money for Security Payments to be Held in Trust

  	
   

  	
  46

  
	
  SECTION 10.04.

  	
  Existence; Activities

  	
   

  	
  47

  
	
  SECTION 10.05.

  	
  Statement by Officers as to Default; Compliance
  Certificates

  	
   

  	
  47

  
	
  SECTION 10.06.

  	
  Provision of Financial Information

  	
   

  	
  48

  



 






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


 


iii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Redemption
  of Securities; Fundamental Changes and Purchases Thereupon

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Right of Redemption

  	
   

  	
  48

  
	
  SECTION 11.02.

  	
  Purchase at Option of Holders Upon a Fundamental
  Change:

  	
   

  	
  48

  
	
  SECTION 11.03.

  	
  Effect of Fundamental Change Purchase Notice

  	
   

  	
  50

  
	
  SECTION 11.04.

  	
  Withdrawal of Fundamental Change Purchase Notice

  	
   

  	
  51

  
	
  SECTION 11.05.

  	
  Deposit of Fundamental Change Purchase Price

  	
   

  	
  51

  
	
  SECTION 11.06.

  	
  Securities Purchased in Whole or in Part

  	
   

  	
  52

  
	
  SECTION 11.07.

  	
  Covenant to Comply With Applicable Laws Upon
  Purchase of Securities

  	
   

  	
  52

  
	
  SECTION 11.08.

  	
  Repayment to the Company

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Conversion

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Right to Convert

  	
   

  	
  52

  
	
  SECTION 12.02.

  	
  Conversion Procedures

  	
   

  	
  55

  
	
  SECTION 12.03.

  	
  Payments Upon Conversion

  	
   

  	
  56

  
	
  SECTION 12.04.

  	
  Adjustment of Conversion Rate

  	
   

  	
  58

  
	
  SECTION 12.05.

  	
  Certain Other Adjustments

  	
   

  	
  64

  
	
  SECTION 12.06.

  	
  Adjustments Upon Certain Fundamental Changes

  	
   

  	
  64

  
	
  SECTION 12.07.

  	
  Effect of Recapitalization, Reclassification,
  Consolidation, Merger or Sale

  	
   

  	
  66

  
	
  SECTION 12.08.

  	
  Taxes on Shares Issued

  	
   

  	
  68

  
	
  SECTION 12.09.

  	
  Reservation of Shares; Shares to be Fully Paid;
  Compliance With Governmental Requirements; Listing of Common Stock

  	
   

  	
  68

  
	
  SECTION 12.10.

  	
  Responsibility of Trustee

  	
   

  	
  68

  
	
  SECTION 12.11.

  	
  Notice to Holders Prior to Certain Actions

  	
   

  	
  69

  
	
  SECTION 12.12.

  	
  Stockholder Rights Plan

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  Appendix

  	
  Provisions Relating to Securities

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Security

  	
   

  	
   

  
	
  Exhibit B

  	
  Form of Notice of Conversion

  	
   

  	
   

  
	
  Exhibit C

  	
  Form of Fundamental Changes Purchase Notice

  	
   

  	
   

  



 






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


 


iv
















 


INDENTURE, dated as of November 17,
2009, between UNITED RENTALS, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the “Company”), having its principal office at Five Greenwich Office Park,
Greenwich, Connecticut 06830 and THE BANK OF NEW YORK
MELLON, a New York banking corporation, having its principal corporate trust
office at 101 Barclay Street, New York, New York 10286, as trustee (herein
called the “Trustee”).


 


RECITALS OF THE COMPANY


 


The
Company has duly authorized the creation of an issue of 4.00% Convertible
Senior Notes due 2015 of substantially the tenor and amount hereinafter set
forth, and to provide therefor, the Company has duly authorized the execution
and delivery of this Indenture.


 


All
things necessary to make the Securities, when executed by the Company,
authenticated and delivered hereunder and duly issued by the Company, the valid
and legally binding obligations of the Company, and to make this Indenture a
valid and legally binding agreement of the Company, in accordance with its
terms, have been done.


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE I


 


Definitions
and Other Provisions of General Application


 


SECTION 1.01. 
Definitions.   For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:


 


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


 


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


 


(c)  all accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP (whether or not such is indicated herein);


 


(d)  unless the context
otherwise requires, any reference to an “Article” or a “Section” refers to an Article or
Section, as the case may be, of this Indenture;


 


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


 

















 


(f)  each reference
herein to a rule or form of the Commission shall mean such rule or
form and any rule or form successor thereto, in each case as amended from
time to time;


 


(g)  “or” is not
exclusive;


 


(h)  “including” means
including without limitation;


 


(i)  unsecured
indebtedness shall not be deemed to be subordinate or junior to secured
indebtedness merely by virtue of its nature as unsecured indebtedness;


 


(j)  the principal
amount of any non-interest bearing or other discount security at any date shall
be the principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP; and


 


(k)  all references to
the date the Securities were originally issued shall refer to the Issue Date,
except as otherwise specified.


 


Whenever
this Indenture requires that a particular ratio or amount be calculated with
respect to a specified period after giving effect to certain transactions or
events on a pro forma basis, such calculation shall be made as if the
transactions or events occurred on the first day of such period, unless otherwise
specified.


 


“61/2% Notes” means the 61/2% Senior Notes due 2012 issued by United Rentals (North America) Inc,
under an indenture, dated as of February 17, 2004, among United Rentals
(North America) Inc., as issuer, the Company and certain of United Rentals
(North America) Inc.’s United States subsidiaries, as guarantors, and The Bank
of New York Mellon, as trustee.


 


“7%
Notes” means the 7% Senior Subordinated Notes due 2014 issued by United Rentals
(North America) Inc., under an indenture, dated as of January 25, 2004,
among United Rentals (North America) Inc., as issuer, the Company and certain
of United Rentals (North America) Inc.’s United States subsidiaries, as
guarantors, and The Bank of New York Mellon, as trustee.


 


“73/4% Notes” means the 73/4% Senior Subordinated Notes due 2013 issued by United Rentals (North
America) Inc, under an indenture, dated as of November 12, 2003 among
United Rentals (North America) Inc., as issuer, the Company and certain of
United Rentals (North America) Inc.’s United States subsidiaries, as
guarantors, and The Bank of New York Mellon, as trustee.


 


“17/8% Notes” means the 17/8% Convertible Senior Subordinated Notes due October 15,
2023 issued by United Rentals (North America) Inc., under an indenture, dated
as of October 31, 2003, among United Rentals (North America) Inc., as
issuer, the Company, as guarantor, and The Bank of New York Mellon, as trustee.


 


“10.875%
Notes” means the 10.875% Senior Notes due 2016 issued by United Rentals (North
America) Inc, under an indenture, dated as of June 9, 2009 among United
Rentals 


 


2

















 


(North America) Inc., as issuer, the Company and certain of United
Rentals (North America) Inc.’s United States subsidiaries, as guarantors, and
The Bank of New York Mellon, as trustee.


 


“Act,” when used with respect to any
Holder, has the meaning specified in Section 1.04.


 


“Additional Interest” has the meaning
specified in Section 5.16.


 


“Additional Securities”  means 4.00% Convertible Senior
Notes due 2015 issued from time to time after the Issue Date under the terms of
this Indenture (other than pursuant to Section 3.04, 3.05, 3.06, 11.06 or
12.02(d) of this Indenture).


 


“Additional Shares” has the meaning
specified in Section 12.06(a).


 


“Affiliate”
means, with respect to any specified Person, (i) any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person, (ii) any
other Person that owns, directly or indirectly, 10% or more of such specified
Person’s Capital Stock or (iii) any officer or  director of (A) any
such specified Person, (B) any Subsidiary of such specified Person or (C) any
Person described in clauses (i) or (ii) above.


 


“Authenticating Agent”  means any Person authorized by the
Trustee pursuant to Section 6.14 hereof to act on behalf of the Trustee to
authenticate Securities.


 


“Bid Solicitation Agent” means the
Company or such other Person (including the Trustee) as may be appointed, from
time to time, by the Company to solicit market bid quotations for the
Securities in accordance with Section 12.01(a)(ii).


 


“Board of Directors”  means the board of directors of a
company or its equivalent, including managers of a limited liability company,
general partners of a partnership or trustees of a business trust, or any duly
authorized committee thereof.


 


“Board Resolution”  means a copy of a resolution certified by the
Secretary or an Assistant Secretary of a company to have been duly adopted by
the Board of Directors of such company and to be in full force and effect on
the date of such certification, and delivered to the Trustee.


 


“Business Day”  means any day other than a Saturday, a Sunday or a
day on the Federal Reserve Bank of New York is authorized or required by law or
executive order to close or be closed.


 


“Capital Stock”  means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated) of such Person’s capital stock or equity participations, and any
rights (other than debt securities convertible into capital stock), warrants or
options exchangeable for or convertible into such capital stock and, including,
without limitation, with respect to partnerships, limited liability companies
or business trusts, ownership interests (whether general or limited) and any
other interest or participation that 


 


3

















 


confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, such partnerships, limited liability
companies or business trusts.


 


“Cash Percentage”  has the meaning specified in Section 12.03(c).


 


“Cash Percentage Notice”  has the meaning specified in Section 12.03(c).


 


“close of business” means 5:00 p.m.
(New York City time).


 


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


 


“Common
Stock” means the shares of common stock, par value $0.01 per share, of the
Company authorized at the date of this instrument as originally executed or as
such stock may be constituted from time to time.  Subject to the provisions of Section 12.07,
shares issuable on conversion of Securities shall include only shares of Common
Stock or shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at
any time there shall be more than one such resulting class, the shares so
issuable on conversion of Securities shall include shares of all such classes,
and the shares of each such class then so issuable shall be substantially in
the proportion which the total number of shares of such class resulting from
all such reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.


 


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


 


“Company Order”  or “Company
Request”  means a written
order or request signed in the name of the Company by its Chairman of the Board
of Directors, its Chief Executive Officer, its Chief Financial Officer, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee or Paying
Agent, as applicable.


 


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


 


“Conversion Agent” means the Trustee or
such other office or agency designated by the Company where Securities may be
presented for conversion. The Conversion Agent shall initially be the Trustee.


 


“Conversion
Date” has the meaning specified in Section 12.02(b).


 


“Conversion
Notice” has the meaning specified in Section 12.02(b).


 


4

















 


“Conversion
Price” means, in respect of each Security, as of any date, $1,000, divided by
the Conversion Rate as of such date.


 


“Conversion
Rate” means, initially, 89.9888 shares of Common Stock per $1,000 principal
amount of Securities, subject to adjustment as set forth herein.


 


“Corporate Trust Office”  means the office of the Trustee at
which at any particular time its principal corporate trust business shall be
administered, which address as of the date of this Indenture is located at 101
Barclay Street, Floor 8 West, New York, New York 10286, Attention:  Corporate Trust Administration or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as a successor Trustee may designate from time
to time by notice to the Holders and the Company).


 


“corporation”
means (except in the definition of “Subsidiary”) a
corporation, association, company, joint stock company or business trust.


 


“Daily Conversion Value” means, for
each of the 40 consecutive Trading Days during the Observation Period, one
fortieth (1/40th) of the product of (i) the applicable Conversion Rate and
(ii) the Daily VWAP of the Common Stock on such Trading Day.


 


“Daily Settlement Amount” has the
meaning specified in Section 12.03(b).


 


“Daily Share Amount” has the meaning specified in
Section 12.03(b)(ii).


 


“Daily VWAP” means, for each of the 40
consecutive Trading Days during the Observation Period, the per share volume-weighted
average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “URI.N
<equity> AQR” (or any successor thereto) in respect of the period from
the scheduled open of trading until the scheduled close of trading of the
primary trading session on such Trading Day (or if such volume-weighted average
price is unavailable, the market value of one share of Common Stock on such
Trading Day determined, using a volume-weighted average method, by a nationally
recognized independent investment banking firm retained for such purpose by the
Company).  Daily VWAP will be determined
without regard to after-hours trading or any other trading outside of the
regular trading session trading hours.


 


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


 


“Defaulted
Interest” has the meaning specified in Section 3.07.


 


“Definitive
Security” has the meaning specified in Appendix.


 


“Depositary” means The Depository
Trust Company, a New York corporation, or its successor.


 


“Effective
Date” has the meaning specified in Section 12.06(c)


 


5

















 


“Event
of Default” has the meaning specified in Section 5.01.


 


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


 


“Ex-Dividend
Date” means, in respect of any dividend or distribution, the first date upon
which the shares of Common Stock trade on the applicable exchange or in the
applicable market (used to determine the Last Reported Sale Price), regular way,
without the right to receive such dividend or distribution.


 


“Existing
Notes” means the 61/2% Notes, the 7% Notes, the 73/4% Notes, the 17/8% Notes and the 10.875% Notes and any additional notes issued under the
indentures governing the Existing Notes.


 


“FASB”
means the Financial Accounting Standards Board.


 


“Federal Bankruptcy Code”  means Title 11, U.S. Code.


 


A “Fundamental Change” will be deemed to have occurred at
the time after the Issue Date if any of the following occurs:


 


(1)           a “person” or “group” within the
meaning of Section 13(d) of the Exchange Act other than the Company,
its Subsidiaries and its and their employee benefit plans, has become the
direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the
Exchange Act, of the Company’s common equity representing more than 50% of the
voting power of the Company’s common equity;


 


(2)           consummation
of any share exchange, consolidation or merger of the Company or any other
transaction or series of transactions pursuant to which the Common Stock will
be converted into cash, securities or other property or any sale, lease
or other transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of its
Subsidiaries; provided, however, that a transaction where the holders of all classes of the
Company’s common equity immediately prior to such transaction that is a share
exchange, consolidation or merger own,
directly or indirectly, more than 50% of all classes of common equity of the
continuing or surviving corporation or transferee or the parent thereof
immediately after such event shall not be a Fundamental Change;


 


(3)           during any consecutive two-year
period, individuals who at the beginning of such period constituted the Company’s
Board of Directors (together with any new directors whose election by the
Company’s Board of Directors or whose nomination for election by its
stockholders was approved by a vote of the majority of the directors then still
in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Company’s Board of Directors then in
office;


 


(4) the Company’s stockholders approve any plan or
proposal for the liquidation or dissolution of the Company; or


 


6

















 


(5) the Common Stock (or other common stock into
which the Securities are then convertible) ceases to be listed or quoted on a
national securities exchange in the United States.


 


A Fundamental Change as a result of clause (2) above
will not be deemed to have occurred, however, if 100% of the consideration
received or to be received by the holders of the Common Stock, excluding cash
payments for fractional shares, in connection with the transaction or
transactions constituting the Fundamental Change consists of shares of common
stock traded on the New York Stock Exchange, the NASDAQ Global Market or the
NASDAQ Global Select Market (or any of their respective successors) or which
will be so traded or quoted when issued or exchanged in connection with a
Fundamental Change and as a result of this transaction or transactions the Securities
become convertible into such publicly traded securities, excluding cash
payments for fractional shares, subject to the provisions regarding payment
upon conversion set forth in Section 12.03 of this Indenture.


 


“Fundamental
Change Company Notice” has the meaning specified in Section 11.02(b).


 


“Fundamental
Change Purchase Date” has the meaning specified in Section 11.02(a).


 


“Fundamental
Change Purchase Notice” has the meaning specified in Section 11.02(a)(ii).


 


“Fundamental
Change Purchase Price” has the meaning specified in Section 11.02(a).


 


“GAAP”  means
generally accepted accounting principles set forth in the FASB codification,
which represents the source of authoritative U.S. GAAP recognized by the FASB
to be applied by non-governmental entities. Rules and interpretive
releases of the Commission under authority of federal securities laws are also
sources of authoritative GAAP for Commission registrants. The codification
supersedes all non-Commission accounting and reporting standards which existed
prior to the codification. All other nongrandfathered, non-Commission
accounting literature not included in the codification is non-authoritative.
GAAP is determined as of the date of any calculation or determination required
hereunder; provided that the Company, on any date, may elect to
establish that GAAP shall mean GAAP as in effect on such date; provided,
further, that any such election, once made, shall be irrevocable. The
Company shall give notice of any such election to the Trustee and the Holders
of the Securities.


 


“Global
Security” has the meaning specified in the Appendix.


 


“guarantee”
means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way
the payment or performance (or payment of damages in the event of
nonperformance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts 


 


7

















 


available to be drawn down under letters of credit of another
Person.  The term “guarantee” used as a
verb has a corresponding meaning.  The
term “guarantor” shall mean any Person providing a guarantee of any obligation.


 


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


 


“Indenture”
means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture, respectively.


 


“Interest Payment Date”  means the Stated Maturity of an
installment of interest on the Securities.


 


“Issue Date”
means November 17, 2009.


 


“Last
Reported Sale Price” of the Common Stock on any date means the closing sale
price per share of Common Stock (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on that date as reported
in composite transactions for the principal U.S. securities exchange on which
the Common Stock is traded. If the Common Stock is not listed for trading on a
U.S. national or regional securities exchange on the relevant date, the “Last
Reported Sale Price” shall be the last quoted bid price for the Common Stock in
the over-the-counter market on the relevant date as reported by Pink Sheets LLC
or a similar organization. If the Common Stock is not so quoted, the “Last
Reported Sale Price” shall be the average of the mid-point of the last bid and
ask prices for the Common Stock on the relevant date from each of at least
three nationally recognized independent investment banking firms selected by
the Company for this purpose.


 


“Make-Whole
Fundamental Change” means any transaction or event that constitutes a
Fundamental Change (determined after giving effect to any exceptions or
exclusions to such definition, but without regard to the proviso in clause (2) of
the definition thereof).


 


“Market
Disruption Event” means (i) a failure by the principal United States
national securities or regional securities exchange or market on which the
Common Stock is listed or admitted to trading to open for trading during its
regular trading session or (ii) the occurrence or existence for more than
a one half-hour period in the aggregate on any Scheduled Trading Day for the
Common Stock of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the stock exchange or
otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock, and such suspension or limitation occurs or
exists at any time before 1:00 p.m., New York City time.


 


“Measurement
Period” has the meaning specified in Section 12.01(a)(ii).


 


8

















 


“Merger
Event” has the meaning specified in Section 12.07(a).


 


“Notice of Default”  means a written notice of the kind specified in Section 5.02.


 


“Observation
Period” with respect to any Security means (i) if the relevant Conversion
Date occurs prior to May 15, 2015, the 40 consecutive Trading Day period
beginning on and including the second Scheduled Trading Day after such
Conversion Date, and (ii) if the relevant Conversion Date occurs on or
after May 15, 2015, the 40 consecutive Trading Days beginning on and
including the 42nd Scheduled Trading Day immediately preceding November 15,
2015.


 


“Officer’s Certificate”  means a certificate signed by the
Chairman of the Board of Directors, the Chief Executive Officer, the President
or a Vice President, the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.  One of the
officers signing an Officer’s Certificate given pursuant to Section 10.05
shall be the principal executive, financial or accounting officer of the
Company.


 


“open
of business” means 9:00 a.m. (New York City time).


 


“Opinion of Counsel”  means a written opinion of counsel
reasonably acceptable to the Trustee, who may be counsel for the Company.


 


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


 


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


 


(ii)           Securities for whose payment or
purchase money or securities in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Securities; and


 


(iii)          Securities which have been paid
pursuant to Section 3.06 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;


 


provided,  however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding (it being
understood that Securities to be acquired by the Company pursuant to an offer
to purchase shall not be deemed to be owned by the Company until legal title to
such Securities passes to the Company), except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand, 


 


9

















 


authorization,
direction, notice, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded.  Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.


 


“Paying Agent”  means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.  The Company has
initially appointed the Trustee as its Paying Agent pursuant to Section 10.02
hereof.


 


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


 


“principal” of a Security means the
principal of the Security plus the premium, if any, payable on that Security
which is due or overdue or is to become due at the relevant time.


 


“Record Expiration Date”  has the meaning specified in Section 1.04.


 


“Regular Record Date”  for the interest payable on any
Interest Payment Date means May 1 or November 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.


 


“Reference
Property” has the meaning specified in Section 12.07(a).


 


“Required
Filing Dates” has the meaning specified in Section 10.06.


 


“Responsible Officer,” when used with
respect to the Trustee, means any officer within the Corporate Trust Office,
including, any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.


 


“Scheduled
Trading Day” means a day that is scheduled to be a Trading Day on the principal
United States national or regional securities exchange or market on which the
Common Stock is listed or admitted for trading. If the Common Stock is not so
listed or admitted for trading, “Scheduled Trading Day” means a Business Day.


 


“Securities”
means the 4.00% Convertible Senior Notes due 2015 issued on the Issue Date and
any Additional Securities.


 


“Securities Act”  means the Securities Act of 1933 and any statute
successor thereto, in each case, as amended from time to time.


 


10
















 


“Securities
Custodian” has the meaning specified in the Appendix.


 


“Security
Register” or “Security Registrar” has the meaning specified in  Section 3.05.


 


“Settlement
Amount” has the meaning specified in Section 12.03(a).


 


“Significant
Subsidiary” means any Subsidiary of the Company that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.


 


“Special Record Date”  for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.


 


“Spin-Off”
has the meaning specified in Section 12.04(c).


 


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


 


“Stock
Price” has the meaning specified in Section 12.06(c).


 


“Subsidiary”
means, with respect to any Person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof and (ii) any other Person (other than a
corporation), including, without limitation, a partnership, limited liability
company, business trust or joint venture, in which such Person, one or more
Subsidiaries thereof or such Person and one or more Subsidiaries thereof,
directly or indirectly, at the date of determination thereof, has at least
majority ownership interest entitled to vote in the election of directors,
managers or trustees thereof (or other Person performing similar
functions).  For purposes of this
definition, any directors’ qualifying shares or investments by foreign
nationals mandated by applicable law shall be disregarded in determining the
ownership of a Subsidiary.


 


“Surviving
Entity” has the meaning specified in Section 8.01.


 


“Trading
Day” means, except as otherwise provided in Section 12.03(g), a day on
which (i) trading in the Common Stock generally occurs on the New York
Stock Exchange or, if the Common Stock is not then listed on the New York Stock
Exchange, on the principal other United States national or regional securities
exchange on which the Common Stock is then listed or, if the Common Stock is
not then listed on a United States national or regional securities exchange, in
the principal other market on which the Common Stock is then traded, and (ii) a
Last Reported Sale Price for the Common Stock is available on such securities
exchange or market. If the Common Stock (or other security for which a closing
sale price must be determined) is not so listed or traded, “Trading Day” means
a Business Day.


 


11

















 


“Trading
Price” of the Securities on any date of determination means the average of the
secondary market bid quotations obtained by the Bid Solicitation Agent for
$5.0 million principal amount of the Securities at approximately 3:30 p.m.,
New York City time, on such determination date from three independent
nationally recognized securities dealers selected by the Company; provided
that, if three bids cannot reasonably be obtained by the Bid Solicitation Agent
but only two such bids are obtained, then the average of the two bids shall be
used, and if only one such bid can reasonably be obtained by the Bid
Solicitation Agent, that one bid shall be used. 
If the Bid Solicitation Agent cannot reasonably obtain at least one bid
for $5.0 million principal amount of the Securities from a nationally
recognized securities dealer, then the Trading Price per $1,000 principal
amount of Securities will be deemed to be less than 98% of the product of the
Last Reported Sale Price of the Common Stock and the applicable Conversion  Rate.  If the Company does not instruct the Bid
Solicitation Agent to obtain bids when required, the Trading Price per $1,000
principal amount of the Securities will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate on each day the Company fails to do so.


 


“Trading
Price Condition” has the meaning specified in Section 12.01(a)(ii).


 


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


 


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


 


“Underwriters”
has the meaning specified in the Appendix.


 


“Underwriting
Agreement” has the meaning specified in the Appendix.


 


“Valuation
Period” has the meaning specified in Section 12.04(c).


 


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


 


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


 


SECTION 1.02.  Compliance Certificates and Opinions.  Upon any application or request by the
Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act.  Each such certificate or opinion shall be
given in the form of an 


 


12

















 


Officer’s Certificate, if to
be given by an officer of the Company, or an Opinion of Counsel, if to be given
by counsel, and shall comply with the requirements of the Trust Indenture Act
and any other requirement set forth in this Indenture.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


 


(a) 
a statement that each individual 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 statements or
opinions contained in such certificate or opinion are based;


 


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


 


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


 


SECTION 1.03.  Form of Documents
Delivered to Trustee.  In any case where several matters
are required to be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.


 


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


 


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


 


SECTION 1.04. 
Acts of Holders; Record Dates.  Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more 


 


13

















 


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


 


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


 


The
ownership of Securities shall be proved exclusively by the Security Register
for all purposes.


 


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


 


The
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders of Securities, provided, however,  that
the Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph.  If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; provided, however,,  that no such action shall be
effective hereunder unless taken on or prior to the applicable Record
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date.  Nothing
in this paragraph shall prevent the Company from setting a new record date for
any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), nor shall anything
in this paragraph be construed to render ineffective any action taken pursuant
to or in accordance with any other provision of this Indenture by Holders of
the requisite principal amount of Outstanding Securities on the date such
action is taken.  Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall 


 


14

















 


cause notice of such record date, the proposed action by Holders and
the applicable Record Expiration Date to be given to the Trustee in writing and
to each Holder of Securities in the manner set forth in Section 1.06.


 


The
Trustee may but need not set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(ii) or (iv) any
direction referred to in Section 5.12. 
If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided, however,  that
no such action shall be effective hereunder unless taken on or prior to the
applicable Record Expiration Date by Holders of the requisite principal amount
of Outstanding Securities on such record date. 
Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action (whereupon the record date previously
set shall automatically and without any action by any Person be cancelled and
of no effect), nor shall anything in this paragraph be construed to render
ineffective any action taken pursuant to or in accordance with any other
provision of this Indenture by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken.  Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the matter(s) to be submitted for potential
action by Holders and the applicable Record Expiration Date to be given to the
Company in writing and to each Holder of Securities in the manner set forth in Section 1.06.


 


With
respect to any record date set pursuant to this Section, the party hereto that
sets such record date may designate any day as the “Record Expiration Date” and from time to time may change the
Record Expiration Date to any earlier or later day, provided, however,  that no such change shall be
effective unless notice of the proposed new Record Expiration Date is given to
the other party hereto in writing, and to each Holder of Securities in the
manner set forth in Section 1.06, on or before the existing Record
Expiration Date.  If a Record Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto that set such record date shall be deemed to have
initially designated the 180th day after such record date as the Record
Expiration Date with respect thereto, subject to its right to change the Record
Expiration Date as provided in this paragraph. 
Notwithstanding the foregoing, no Record Expiration Date shall be later
than the 180th day after the applicable record date.


 


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


 


SECTION 1.05. 
Notices to Trustee or the Company.  Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,


 


15

















 


(a) 
the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing and mailed,
first-class postage prepaid, to or with the Trustee at its Corporate Trust
Office, Attention:  Corporate Trust
Administration,


 


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


 


SECTION 1.06. 
Notice to Holders; Waiver.  Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice.  In any case where notice to
Holders is given by mail, neither the failure to mail or receive such notice,
nor any defect in any such notice, to any particular Holder shall affect the
sufficiency or validity of such notice. 
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice.  Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.


 


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


 


SECTION 1.07. 
Conflict with Trust Indenture Act.  If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under the Trust Indenture Act to be part of and govern this Indenture,
such provision of the Trust Indenture Act shall control.  If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, such provision shall be deemed to be so modified or excluded, as the
case may be.


 


SECTION 1.08. 
Effect of Headings and Table of Contents.  The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


SECTION 1.09. 
Successors and Assigns.  Without limiting Article VIII
hereof, all covenants and agreements in this Indenture by the Company shall
bind its respective successors and assigns, whether so expressed or not.


 


SECTION 1.10. 
Separability Clause.  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.


 


16

















 


SECTION 1.11. 
Benefits of Indenture.  Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.


 


SECTION 1.12. 
Governing Law.  This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to conflicts of law principles thereof.


 


SECTION 1.13. 
Legal Holidays.  In any case where any Interest
Payment Date, required repurchase date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect (including with respect to the
accrual of interest) as if made on the Interest Payment Date, required
repurchase date or at the Stated Maturity.


 


SECTION 1.14.  Waiver of Jury Trial.  EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE OR THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


SECTION 1.15.  Force Majeure.  In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond
its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


ARTICLE II


 


Security
Forms


 


SECTION 2.01. 
Form and Dating.  Provisions relating to the
Securities are set forth in the Appendix, which is hereby incorporated in and
expressly made a part of this Indenture. 
The Securities and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto, the Form of Notice of
Conversion shall be substantially in the form of Exhibit B hereto and the Form of
Fundamental Change Purchase Notice shall be substantially in the form of Exhibit C
hereto, each of which are hereby incorporated in and expressly made a part of
this Indenture.  The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the
Company).  Each Security shall be dated
the date of its authentication.


 


17

















 


ARTICLE III


 


The
Securities


 


SECTION 3.01. 
Title and Terms.  The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture on the
Issue Date is limited to $172,500,000 principal amount.  Additional Securities may be issued,
authenticated and delivered pursuant to Section 3.13, and Securities may
be authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Sections 3.04, 3.05, 3.06, 9.06, 11.06 or 12.02(d).


 


The
Securities shall be known and designated as the “4.00% Convertible Senior Notes
due 2015” of the Company.  Their Stated
Maturity for payment of principal shall be November 15, 2015.  Interest on the Securities shall accrue at
the rate of 4.00% per annum and shall be payable semiannually in arrears on
each May 15 and November 15, commencing May 15, 2010 to the Holders
of record of Securities at the close of business on May 1 and November 1,
respectively, immediately preceding such Interest Payment Date.  Subject to Section 3.13(c), interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from November 17, 2009.  Interest on the Securities will be computed
on the basis of a 360-day year comprised of twelve 30-day months.


 


The
Company shall pay the principal of and interest on any Global Security in
immediately available funds to the Depositary or its nominee, as the case may
be, as the registered Holder of such Global Security.  The Company shall pay the principal of any
Definitive Security at the office or agency designated by the Company for that
purpose.  The Company has initially
designated the Trustee as its Paying Agent and Security Registrar in respect of
the Securities and its agency in New York, New York as a place where Securities
may be presented for payment or for registration of transfer.  The Company may, however, change the Paying
Agent or Security Registrar for the Securities without prior notice to the
Holders thereof and the Company may act as Paying Agent or Security Registrar
for the Securities.  Interest on any
Definitive Securities will be payable (i) to Holders of Definitive
Securities having an aggregate principal amount of Securities of $5,000,000 or
less, by check mailed to the Holders of such Securities as their address in the
Security Register and (ii) to Holders having an aggregate principal amount
of Definitive Securities in excess of $5,000,000, by either check mailed to
each Holder at its address in the Security Registrar or, upon application by a
Holder to the Security Register not later than the relevant Regular Record
Date, by wire transfer in immediately available funds to that Holder’s account
within the United States, which application shall remain in effect until that
Holder notifies, in writing, the Security Registrar to the contrary.


 


SECTION 3.02. 
Denominations.  The Securities shall be issuable
only in registered form without coupons and only in denominations of $1,000
principal amount and any integral multiple of $1,000 thereof.


 


SECTION 3.03.  Execution and Authentication.  The terms and provisions contained in the Form of
Securities annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company and the 


 


18

















 


Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby. 
The Securities shall be executed on behalf of the Company by its Chief
Executive Officer, Chief Financial Officer, General Counsel, Treasurer or any
Executive or Senior Vice President.  The
signature of any of these officers on the Securities may be manual or
facsimile.


 


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


 


At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, which shall specify the amount
of the Securities to be authenticated and the date on which the original issue
of Securities is to be authenticated and, in the case of an issuance of
Additional Securities pursuant to Section 3.13 after the Issue Date, shall
certify that such issuance is in compliance with this Indenture; and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities as provided in this Indenture and not otherwise.


 


Each
Security shall be dated the date of its authentication.


 


No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.


 


Authentication
by counterpart shall satisfy the requirements of this Section 3.03 and the
requirements of the Securities.


 


SECTION 3.04. 
Temporary Securities.  Pending the preparation of
Definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.


 


If
temporary Securities are issued, the Company will cause Definitive Securities
to be prepared without unreasonable delay. 
After the preparation of Definitive Securities, the temporary Securities
shall be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section 10.02,
without charge to the Holder.  Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Securities of authorized denominations



 


19

















 


and of a like tenor.  Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities.


 


SECTION 3.05. 
Registration, Registration of Transfer and Exchange.  The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section 10.02
being herein sometimes collectively referred to as the “Security Register”) in
which, subject to such reasonable regulations as the Company may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities.  The Trustee is hereby
appointed (a) the initial “Security Registrar” for
the purpose of registering Securities and transfers of Securities as herein
provided and (b) the Securities Custodian with respect to the Global
Securities.


 


The
Securities shall be issued in registered form and shall be transferable only
upon the surrender of a Security for registration of transfer and in compliance
with the Appendix.  When a Security is
presented to the Security Registrar with a request to register a transfer, the
Security Registrar shall register the transfer as requested if its requirements
therefor are met.  When Securities are
presented to the Security Registrar with a request to exchange them for an
equal principal amount of Securities of other denominations, the Security
Registrar shall make the exchange as requested if the same requirements are
met.  To permit registration of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Security Registrar’s request.


 


All
Securities issued upon any registration of transfer or exchange pursuant to the
terms of this Indenture shall be the 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.


 


No
service charge shall be made for any registration of transfer or exchange of
Securities except as provided in Section 3.06, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 3.04, 9.06, 11.06 or
12.02(d), and in any such case not involving any transfer.


 


Prior
to the due presentation for registration of transfer of any Security, the
Company, the Trustee, the Paying Agent, and the Security Registrar may deem and
treat the Person in whose name a Security is registered as the absolute owner
of such Security for the purpose of receiving payment of principal of and
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the Trustee,
the Paying Agent, or the Security Registrar shall be affected by notice to the
contrary.


 


Any
Holder of a Global Security shall, by acceptance of such Global Security, agree
that transfers of beneficial interest in such Global Security may be effected
only through a book-entry system maintained by (a) the Holder of such
Global Security (or its agent) or (b) any Holder of a beneficial interest
in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.


 


20
















 


SECTION 3.06. 
Mutilated, Destroyed, Lost and Stolen Securities.  If any mutilated Security is surrendered to
the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of like tenor and principal amount
and bearing a number not contemporaneously
outstanding.


 


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 and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of each of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute, and upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


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


 


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


 


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


 


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


 


SECTION 3.07. 
Payment of Interest; Rights Preserved.  Interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more predecessor
securities) is registered at the close of business on the Regular Record Date
for such interest payment.


 


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


 


(a) 
the Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the Securities (or their respective predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner:  the Company shall 


 


21

















 


notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided.  Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 15 days after the receipt by the Trustee
of the notice of the proposed payment. 
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder in the manner specified in Section 1.06,
not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).


 


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


 


Subject
to the foregoing provisions of this Section and Section 3.05, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


SECTION 3.08. 
Persons Deemed Owners.  Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee shall treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section 3.07)
interest on such Security and for all other purposes whatsoever, whether or not
such 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.


 


SECTION 3.09. 
Cancellation.  All Securities surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it.  The Company
shall promptly deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee.  No
Securities shall be 


 


22

















 


authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture.  All cancelled Securities held by the Trustee
shall be disposed of by the Trustee in its customary manner.


 


SECTION 3.10. 
Computation of Interest.  Interest on the Securities shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.


 


SECTION 3.11. 
CUSIP and CINS Numbers.  The Company in issuing the
Securities may use “CUSIP” and “CINS” numbers (if then generally in use), and,
if so, the Trustee shall use the CUSIP or CINS numbers in notices of redemption
or repurchase as a convenience to Holders; provided, however, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption or repurchase and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption or repurchase shall not be affected by any defect in or omission of
such numbers.  The Company shall promptly
notify the Trustee of any change in the CUSIP or CINS numbers.


 


SECTION 3.12. 
Deposits of Monies.  Except to the extent payment of
interest is made by the Company’s check pursuant to Section 3.01, prior to
11:00 a.m., New York City time, on each Interest Payment Date and Stated
Maturity, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to make cash payments, if any, due on such
Interest Payment Date or Stated Maturity in a timely manner which permits the
Paying Agent to remit payment to the Holders on such Interest Payment Date or
Stated Maturity.


 


SECTION 3.13. 
Issuance of Additional Securities.  The Company shall be entitled,
subject to its compliance with this Indenture, to issue Additional Securities
under this Indenture which shall have identical terms as the Securities issued
on the Issue Date, other than with respect to the date of issuance and issue
price provided,  however, that no Additional Securities shall be issued that are not fungible for U.S.
Federal income tax purposes, with any other securities issued under this
Indenture.  The Securities issued on the
Issue Date and any Additional Securities shall be treated as a single class for
all purposes under this Indenture.


 


With
respect to any Additional Securities, the Company shall set forth in a
resolution of its Board of Directors and an Officer’s Certificate, a copy of
each which shall be delivered to the Trustee, the following information:


 


(a) 
whether such Additional Securities shall be issued as part of a new or existing
series of Securities and the title of such Additional Securities (which shall
distinguish the Additional Securities of the series from Securities of any
other series);


 


(b) 
the aggregate principal amount of such Additional Securities which may be
authenticated and delivered under this Indenture, which may be in an unlimited
aggregate principal amount;


 


(c) 
the issue price and issuance date of such Additional Securities, including the
date from which interest on such Additional Securities shall accrue; and


 


23

















 


(d) 
if applicable, that such Additional Securities shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective depositaries for such Global Securities, the form of any
legend or legends which shall be borne by such Global Securities in addition to
or in lieu of those set forth in Exhibit A hereto and any circumstances in
addition to or in lieu of those set forth in Section 2.4 of the Appendix
in which any such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than
the depositary for such Global Security or a nominee thereof.


 


ARTICLE IV


 


Satisfaction
and Discharge


 


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


 


(i) the Company shall
deliver to the Registrar for cancellation all Securities theretofore
authenticated (other than any Securities that have been destroyed, lost or
stolen and in lieu of or in substitution for which other Securities shall have
been authenticated and delivered) and not theretofore canceled; or


 


(ii) all Securities not
theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable (whether at Stated Maturity for the payment of the
principal amount thereof, on any Fundamental Change Purchase Date or following
the last day of the applicable Observation Period upon conversion or
otherwise),


 


and the Company shall deposit with the Trustee, in trust, or deliver to
the Holders, as applicable, cash funds and shares of Common Stock, as
applicable, sufficient to pay all amounts due (and shares of Common Stock
deliverable following conversion, if applicable) on all of such Securities
(other than any Securities that shall have been mutilated, destroyed, lost or stolen
and in lieu of or in substitution for which other Securities shall have been
authenticated and delivered) not theretofore canceled or delivered to the
Trustee for cancellation, including principal and interest due, accompanied,
except in the event the Securities are due and payable solely in cash at the
Stated Maturity of the Securities or upon an earlier Fundamental Change
Purchase Date, by a verification report as to the sufficiency of the deposited
amount from an independent certified accountant or other financial professional
reasonably satisfactory to the Trustee (which may include any of the
Underwriters), and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (A) rights hereunder of Holders of the
Securities to receive all amounts owing upon the Securities and the other
rights, duties and obligations of Holders of the Securities, as beneficiaries
hereof with respect to the amounts, if any, so deposited with the 


 


24

















 


Trustee and (B) the rights, obligations
and immunities of the Trustee hereunder), and the Trustee, on written 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 satisfaction and discharge of this Indenture.


 


Notwithstanding the satisfaction and discharge of this Indenture
pursuant to this Article IV, the obligations of the Company to the Trustee
under Section 6.07, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to the preceding paragraph of this Section 4.01,
the obligations of the Trustee under Section 4.02 and the last paragraph
of Section 10.03 shall survive such satisfaction and discharge.


 


SECTION 4.02. 
Application of Trust Money.  Subject to the provisions of the
last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee


 


SECTION 4.03. 
Paying Agent to Repay Monies Held.  Upon the satisfaction and discharge of this
Indenture, all monies then held by any Paying Agent (if other than the Trustee)
shall, upon written request 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 monies.


 


SECTION 4.04. 
Reinstatement.  If
the Trustee or the Paying Agent is unable to apply any money in accordance with
Section 4.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under the Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.01
until such time as the Trustee or the Paying Agent is permitted to apply all
such money in accordance with Section 4.02; provided, however,
that if the Company makes any payment of interest on or principal of any
Security following 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 money held by the Trustee or Paying Agent.


 


ARTICLE V


 


Remedies


 


SECTION 5.01. 
Events of Default.  “Event of Default,” wherever
used herein, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):


 


25

















 


(a) 
default in the payment of the principal of or premium, if any, when due and
payable, on any of the Securities (at Stated Maturity, upon required repurchase
or otherwise); or


 


(b) 
default in the payment of an installment of interest on any of the Securities,
when due and payable, for 30 days; or


 


(c) 
failure by the Company to comply with its obligation to convert any Security in
accordance with this Indenture upon exercise of a Holder’s conversion right in
accordance with Article XII hereof; or


 


(d) 
failure by the Company to provide a Fundamental Change Company Notice pursuant
to Section 11.02(b) or notice of a specified corporate transaction
required by Section 12.01(a)(iii) or Section 12.01(a)(iv) in
accordance with the relevant Section, in each case when due; or


 


(e) 
default in the performance or breach of the provisions of Article VIII; or


 


(f) 
default in the performance, or breach, of any covenant or agreement of
the Company under this Indenture (other than a default in the performance or
breach of a covenant or agreement which is specifically dealt with in clauses (a) through
(e) above) and such default or breach shall continue for a period of 30
days after written notice has been given, by certified mail:


 


(x) to
the Company by the Trustee; or


 


(y) to
the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities;


 


(g) 
default or defaults under one or more agreements, instruments, mortgages,
bonds, debentures or other evidences of indebtedness under which the Company or
any Subsidiary of the Company then has outstanding indebtedness (i) in
excess of $25,000,000, if any Existing Notes are outstanding, or (ii) in
excess of $50,000,000, when no Existing Notes remain outstanding, in each case,
individually or in the aggregate, and either:


 


(a)     such
indebtedness is already due and payable in full; or


 


(b)     such
default or defaults have resulted in the acceleration of the maturity of such
indebtedness; or


 


(h) 
one or more judgments, orders or decrees of any court or regulatory or
administrative agency of competent jurisdiction for the payment of money (i) in
excess of $25,000,000, if any Existing Notes are outstanding, or (ii) in
excess of $50,000,000, when no Existing Notes remain outstanding, in each case,
either individually or in the aggregate, shall be entered against the Company
or any Subsidiary of the Company or any of their respective properties and
shall not be discharged and there shall have been a 


 


26

















 


period of 60 days after the date on
which any period for appeal has expired and during which a stay of enforcement
of such judgment, order or decree, shall not be in effect; or


 


(i) 
the entry of a decree or order by a court having jurisdiction in the premises (A) for
relief in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under the Federal Bankruptcy Code or any other
federal, state or foreign bankruptcy, insolvency, reorganization or similar law
or (B) adjudging the Company or any Significant Subsidiary bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Significant Subsidiary under the Federal
Bankruptcy Code or any other similar federal, state or foreign law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or any Significant Subsidiary or of
any substantial part of any of their properties, or ordering the winding up or
liquidation of any of their affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or


 


(j) 
the institution by the Company or any Significant Subsidiary of a voluntary
case or proceeding under the Federal Bankruptcy Code or any other similar
federal, state or foreign law or any other case or proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the Company or any
Significant Subsidiary to the entry of a decree or order for relief in respect
of the Company or any Significant Subsidiary in any involuntary case or
proceeding under the Federal Bankruptcy Code or any other similar federal,
state or foreign law or to the institution of bankruptcy or insolvency
proceedings against the Company or any Significant Subsidiary, or the filing by
the Company or any Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Code or any other
similar federal, state or foreign law, or the consent by it to the filing of
any such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or other similar
official) of any of the Company or any Significant Subsidiary or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action


 


SECTION 5.02. 
Acceleration of Maturity; Rescission and Annulment.  If an Event of Default (other than those
covered by clause (i) or (j) of Section 5.01 with respect to the
Company) shall occur and be continuing, the Trustee, by notice to the Company,
or the Holders of at least 25% in aggregate principal amount of the Securities
then Outstanding, by notice to the Trustee and the Company, may declare the
principal of, premium, if any, and accrued and unpaid interest, if any, on all
of the Outstanding Securities due and payable immediately, upon which
declaration, all amounts payable in respect of the Securities shall be due and
payable as of the date which is five Business Days after the giving of such
notice.  If an Event of Default specified
in clause (i) or (j) of Section 5.01 with respect to the Company
occurs and is continuing, then the principal of, premium, if any, and accrued
and unpaid interest, if any, on all the Outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of Securities.


 


27

















 


After
a declaration of acceleration under this Indenture, but before a judgment or
decree for payment of the money due has been obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind such
declaration if:


 


(a) 
the Company has paid or deposited with the Trustee a sum sufficient to pay:


 


(i) all
sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel;


 


(ii) all
overdue interest on all Securities;


 


(iii) the
principal of and premium, if any, on any Securities which have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Securities; and


 


(iv) to
the extent that payment of such interest is lawful, interest upon overdue
interest and overdue principal at the rate set forth in the Securities which
has become due otherwise than by such declaration of acceleration;


 


(b) 
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and


 


(c) 
all Events of Default, other than the non-payment of principal of, premium, if
any, and interest on the Securities that have become due solely by such
declaration of acceleration, have been cured or waived.


 


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


 


SECTION 5.03. 
Collection of Indebtedness and Suits for Enforcement by Trustee.  The Company covenants that if:


 


(a) 
default is made in the payment of any interest on any Security when such
interest becomes due and payable and such default continues for a period of 30
days, or


 


(b) 
default is made in the payment of the principal of (or premium, if any, on) any
Security on the due date for payment thereof, including, with respect to any
Security required to have been purchased pursuant to a Fundamental Change offer
on the Fundamental Change Purchase Date,


 


the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate provided by the Securities, and, in addition thereto, such further amount
as shall be 


 


28

















 


sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


In
addition to the rights and powers set forth in Section 317(a) of the
Trust Indenture Act, the Trustee shall be entitled to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Securities allowed in any judicial proceeding
relative to the Company or any other obligor upon the Securities, its
creditors, or its property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute the same
after the deduction of its charges and expenses; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
Holders to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for compensation and expenses,
including counsel fees incurred by it up to the date of such distribution.


 


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


 


SECTION 5.04. 
Trustee May File Proofs of Claim.  In case of any judicial proceeding relative
to the Company (or any other obligor upon the Securities), any of its property
or any of its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. 
In particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.


 


No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, 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; provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors’ or other similar committee.


 


SECTION 5.05. 
Trustee May Enforce Claims Without Possession of Securities.  All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof 


 


29

















 


in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, distributions and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.


 


SECTION 5.06. 
Application of Money Collected.  Any money collected by the
Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


FIRST:  To the payment of all amounts due the Trustee
under Section 6.07;


 


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


 


THIRD:  To the payment of any and all other amounts
due under this Indenture or the Securities; and


 


FOURTH:  To the Company (or such other Person as a
court of competent jurisdiction may direct).


 


SECTION 5.07. 
Limitation on Suits.  Subject to Section 5.08, no
Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless


 


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


 


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


 


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


 


(d) 
the Trustee for 45 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and


 


(e) 
no direction inconsistent with such written
request has been given to the Trustee during such 45-day period by the Holders
of a majority in principal amount of the 


 


30

















 


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


 


SECTION 5.08. 
Unconditional Right of Holders to Receive Principal, Premium and
Interest.  Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Section 3.07) interest on such
Security on the respective Stated Maturities expressed in such Security or, in
the case of a Fundamental Change Offer, on the Fundamental Change Purchase Date
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such
Holder.


 


SECTION 5.09. 
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 severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted, subject to the determination in such proceeding.


 


SECTION 5.10. 
Rights and Remedies Cumulative.  Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


SECTION 5.11. 
Delay or Omission Not Waiver.  No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein.  Every right and remedy given by
this Article 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.


 


SECTION 5.12. 
Control by Holders.  The Holders of a majority in
principal amount of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, provided that:


 


(a) 
such direction shall not be in conflict with any rule of law or with this
Indenture, and


 


31
















 


(b) 
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


 


SECTION 5.13. 
Waiver of Past Defaults.  The Holders of not less than a
majority in principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past default hereunder and its
consequences, except a default


 


(a) 
in the payment of the principal of (or premium, if any) or interest on any
Security (including any Security which is required to have been purchased
pursuant to a Fundamental Change offer) or


 


(b) 
in respect of a covenant or provision hereof which under Article IX cannot
be modified or amended without the consent of the Holder of each Outstanding
Security affected.


 


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


 


SECTION 5.14. 
Undertaking for Costs.  In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit (including reasonable counsel fees and expenses), and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company, in any suit instituted by the Trustee, in any suit instituted by any
Holder or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or in any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the Stated Maturity expressed in such
Security (or, in the case of a Fundamental Change offer, on or after the
Fundamental Change Purchase Date).


 


SECTION 5.15. 
Waiver of Stay or Extension Laws.  The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any usury, stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted


 


SECTION 5.16. 
Additional Interest.  Notwithstanding any provisions of this
Indenture to the contrary, if the Company so elects, the sole remedy for an
Event of Default relating to any obligation to file documents and reports with
the Trustee as required by Section 314(a)(1) of the Trust Indenture
Act, Section 7.04 of this Indenture or Section 10.06 of 


 


32

















 


this Indenture shall for the
first 180 days following the occurrence of such Event of Default consist
exclusively of the right to receive additional interest on the Securities equal
to 0.50% per annum of the principal amount of the Securities (“Additional
Interest”). In order to elect to pay Additional Interest as the sole remedy
during the first 180 days after the occurrence of an Event of Default described
in the preceding sentence, the Company must (i) give notice to Holders of
the Securities, the Trustee and the Paying Agent of such election on or before
the close of business on the 5th Business Day after the date on which such
Event of Default occurs and (ii) pay such Additional Interest on or before
the date on which such Event of Default first occurs. Upon the failure to
timely give all Holders, the Trustee and the Paying Agent such notice or to pay
such Additional Interest, the Securities will be subject to immediate
acceleration as provided in this Indenture. On the 180th day after such Event
of Default occurs (if such Event of Default is not cured or waived prior to
such 180th day), the Securities shall be subject to acceleration as provided in
this Indenture. This Section 5.16 shall not affect the rights of Holders of
Securities in the event of the occurrence of any other Event of Default.
Whenever in the Indenture there is mentioned, in any context, the payment of
interest on, or in respect of, any Security, such mention shall be deemed to
include mention of the payment of Additional Interest provided for in this Section 5.16
to the extent that, in such context, Additional Interest is, was or would be
payable in respect thereof pursuant to the provisions of this Section 5.16,
and express mention of the payment of Additional Interest (if applicable) in
any provision shall not be construed as excluding Additional Interest in those
provisions where such express mention is not made.


 


ARTICLE VI


 


The
Trustee


 


SECTION 6.01. 
Certain Duties and Responsibilities.  (a)    Except during the continuance of an Event of
Default,


 


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


 


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


 


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


 


33

















 


(c)  No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent
misconduct, except that 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 under this Indenture, unless the Trustee has
received security and indemnity satisfactory to it against any loss, liability
or expense.  The Trustee shall not be
liable for any error of judgment unless it is proved that the Trustee was
negligent in the performance of its duties hereunder.


 


(d)  Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.01.


 


SECTION 6.02. 
Notice of Defaults.  If a Default or an Event of
Default occurs and is known to the Trustee, the Trustee shall transmit by mail
to all Holders, as their names and addresses appear in the Security Register,
notice of such Default or Event of Default hereunder known to the Trustee
within 90 days after obtaining such knowledge, unless such Default shall have
been cured or waived; provided, however, that, except
in the case of a Default or an Event of Default in the payment of the principal
of, premium, if any, or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.


 


SECTION 6.03. 
Certain Rights of Trustee.  Subject to the provisions of Section 6.01:


 


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


 


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


 


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


 


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


 


34

















 


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


 


(f) 
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled (subject to reasonable
confidentiality arrangements as may be proposed by the Company) to make
reasonable examination (upon prior notice and during regular business hours) of
the books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;


 


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


 


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


 


(i) 
in the event that the Trustee is also acting as Authenticating Agent, Paying
Agent, Security Registrar or Securities Custodian hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI, including
its right to be indemnified, shall also be afforded to such Authenticating
Agent, Paying Agent, Security Registrar and Securities Custodian;


 


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


 


(k)  in no event shall
the Trustee be responsible or liable for special, indirect, or consequential
loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action; and


 


35

















 


(l)  the Trustee may
request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.


 


SECTION 6.04. 
Not Responsible for Recitals or Issuance of Securities.  The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken
as the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.


 


SECTION 6.05. 
May Hold Securities.  The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar, any Securities Custodian or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 6.08 and
6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar,
Securities Custodian or such other agent.


 


SECTION 6.06. 
Money Held in Trust.  Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law.  The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.


 


SECTION 6.07. 
Compensation and Reimbursement.  The Company agrees (1) to
pay to the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for all services rendered by
it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust); (2) except
as otherwise expressly provided herein, to promptly reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance as
may have been caused by its negligence or willful misconduct; and (3) to
indemnify the Trustee, its directors, officers, agents and employees for, and
to hold them harmless against, any and all loss, damage, claim, liability or
expense incurred without negligence or bad faith on its part, including taxes
(other than taxes based upon, measured by or determined by the revenue or
income of the Trustee), arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim (whether asserted by the Company, a Holder or any
other Person) or liability in connection with the exercise or performance of
any of its powers or duties hereunder.


 


The
Trustee shall have a lien prior to the Securities as to all property and funds
held by it hereunder for any amount owing to it pursuant to this Section 6.07,
except with respect to funds held in trust for the benefit of the Holders of
particular Securities.


 


When
the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.01(i) or Section 5.01(j), the
expenses (including the reasonable 


 


36

















 


charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.


 


Notwithstanding
any provisions of this Indenture, the provisions of this Section shall
survive the resignation or removal of the Trustee and any satisfaction and
discharge of this Indenture.


 


SECTION 6.08. 
Conflicting Interests.  If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.


 


SECTION 6.09. 
Corporate Trustee Required; Eligibility.  There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has, or is a wholly owned subsidiary of a bank
holding company that has, a combined capital and surplus of at least
$50,000,000 and a Corporate Trust Office in the Borough of Manhattan, The City
of New York.  If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a Federal or State supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


SECTION 6.10. 
Resignation and Removal; Appointment of Successor.  (a)  
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.


 


(b)  The Trustee may resign at any time by giving
written notice thereof to the Company. 
If an instrument of acceptance by a successor Trustee in accordance with
the applicable requirements of Section 6.11 shall not have been delivered
to the Company and the resigning Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a successor Trustee.


 


(c)  The Trustee may be removed at any time by Act
of the Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company. 
If an instrument of acceptance by a successor Trustee in accordance with
the applicable requirements of Section 6.11 shall not have been delivered
to the Company and the Trustee being removed within 30 days after the giving of
such notice of removal, the Trustee being removed may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Trustee.


 


(d)  If at any time:


 


37

















 


(ii) the
Trustee shall fail to comply with Section 6.08 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or


 


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


 


(iv) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,


 


then,
in any such case, (A) the Company, by a Board Resolution, may remove the
Trustee, or (B) subject to Section 5.14, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


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


 


(f)  The Company shall give notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee to all Holders in the manner provided in Section 1.06.  Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


(g)  The resignation or removal of the Trustee
pursuant to this Section 6.10 shall not affect the obligation of the Company
to indemnify the Trustee pursuant to Section 6.07(3) in connection
with the exercise or performance by the Trustee prior to its resignation or
removal of any of its powers or duties hereunder.


 


(h)  No Trustee under this Indenture shall be
liable for any action or omission of any successor Trustee.


 


SECTION 6.11. 
Acceptance of Appointment by Successor.  Every successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or 


 


38

















 


removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.  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.


 


No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this Article.


 


SECTION 6.12. 
Merger, Conversion, Consolidation or Succession to Business.  Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided, however, that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.  In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.


 


SECTION 6.13. 
Preferential Collection of Claims Against the Company.  If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).


 


SECTION 6.14. 
Appointment of Authenticating Agent.  The Trustee may appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon original issue and upon
exchange or registration of transfer or partial purchase or pursuant to Section 3.06,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. 
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.  Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority.  If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital 


 


39

















 


and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.  If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


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


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company.  The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such appointment in the
manner provided in Section 1.06, to all Holders as their names and
addresses appear in the Security Register. 
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.  No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.


 


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


 


If
an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee’s certificate of authentication,
an alternative certificate of authentication in the following form:


 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  The Bank of New York Mellon, as Trustee

  
	
   

  	
   

  	
   

  	
  By

  
	
   

  	
   

  	
   

  	
  As Authentication Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By

  
	
   

  	
   

  	
   

  	
  Authorized Signatory

  



 


40
















 


ARTICLE VII


 


Holders’
Lists and Reports by Trustee and Company


 


SECTION 7.01. 
Company to Furnish Trustee Names and Addresses of Holders.  The Company will furnish or cause to be
furnished to the Trustee a list of the names and addresses of the Holders in
such form as the Trustee may reasonably request in writing, within 30 days
after the receipt by the Company of any such request, as of a date not more
than 15 days prior to the time such list is furnished; excluding from any such
list names and addresses received by the Trustee in its capacity as Security
Registrar.


 


SECTION 7.02. 
Preservation of Information; Communications to Holders.  (a)  The Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in Section 7.01
and the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar, if so acting.


 


(b)  The rights of Holders to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.


 


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


 


SECTION 7.03. 
Reports by Trustee.  (a)  Within 60 days after June 15
of each year commencing June 15, 2010, the Trustee shall transmit to
Holders such reports concerning
the Trustee and its actions under this Indenture to the extent required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto.


 


(b)  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 the Securities are listed (if any), with the Commission and
with the Company.  The Company will
promptly notify the Trustee when the Securities are listed on any stock
exchange and of any delisting thereof.


 


SECTION 7.04. 
Reports by Company.  The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to the Trust Indenture Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the Commission.


 


Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, 


 


41

















 


including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates).


 


ARTICLE VIII


 


Consolidation, Merger,
Conveyance, Transfer or Lease


 


SECTION 8.01. 
Company May Consolidate, Etc. Only on Certain Terms.  The Company will not, in any transaction or
series of transactions, merge or consolidate with or into, or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons unless at the
time and after giving effect thereto:


 


(a) 
either:


 


(i) if the transaction
or transactions is a merger or consolidation, the Company shall be the
surviving Person of such merger or consolidation, or


 


(ii) the Person formed
by such consolidation or into which the Company is merged or to which the
properties and assets of the Company, substantially as an entirety, are
transferred (any such surviving Person or transferee Person being the “Surviving Entity”) shall be a corporation organized
and existing under the laws of the United States of America, any state thereof
or the District of Columbia and shall expressly assume by a supplemental
indenture executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Securities and this
Indenture, and this Indenture and the Securities shall remain in full force and
effect; and


 


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


 


In
connection with any consolidation, merger, transfer, lease, assignment or other
disposition contemplated by the foregoing provisions of this Section 8.01, the
Company shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officer’s Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, transfer,
lease, assignment, or other disposition and the supplemental indenture in
respect thereof (required under clause (a)(ii) of this Section 8.01)
comply with the requirements of this Indenture.


 


SECTION 8.02. 
Successor Substituted.  Upon any consolidation or merger,
or any sale, assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company in accordance
with Section 8.01, the successor Person formed by such consolidation or
into which the Company  is merged or the
successor Person to which such sale, assignment, conveyance, transfer, lease or
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of the Company under the Securities and this Indenture,
as applicable, with the same effect as if such successor had been named as the
Company in the Securities and this Indenture, as the case may be, and, except
in 


 


42

















 


the
case of a lease, the Company shall be released and discharged from its
obligations thereunder.


 


ARTICLE IX


 


Amendments;
Waivers; Supplemental Indentures


 


SECTION 9.01. 
Amendments, Waivers and Supplemental Indentures Without Consent of
Holders.  Without the consent of any
Holders, when authorized by a Board Resolution, the Company and the Trustee, at
any time and from time to time, may together amend, waive or supplement this
Indenture or the Securities, for any of the following purposes:


 


(a) 
to evidence the succession of another Person to the Company and the assumption
by any such successor of the covenants of the Company herein and in the
Securities and to evidence the assumption of obligations under this Indenture;


 


(b) 
to add to the covenants of the Company for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Company;


 


(c) 
to secure the Securities;


 


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


 


(e) 
to cure any ambiguity, to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture; or


 


(f) 
to make any change that does not adversely affect the rights of the Holders;


 


provided,
however,  that (i) such
amendment, waiver or supplement does not adversely affect the rights of any
Holder of Securities and (ii) the Company shall have delivered to the
Trustee an Opinion of Counsel and Officer’s Certificate stating that such
action pursuant to clauses (a) to (f) above is permitted by this
Indenture.  The Trustee shall not be
obligated to enter into any such amendment, waiver or supplemental indenture
that adversely affects its own rights, duties or immunities under this
Indenture or otherwise.


 


SECTION 9.02. 
Modifications, Amendments and Supplemental Indentures with Consent of
Holders.  With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Securities,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by Board Resolutions, and the Trustee may together modify,
amend or supplement this Indenture or the Securities for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such
modification, amendment or supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby,


 


43

















 


(a) 
reduce the principal amount of, extend the Stated Maturity of or alter the
repurchase provisions of, the Securities,


 


(b) 
change the currency in which any Securities or any premium or the interest
thereon is payable,


 


(c) 
reduce the percentage in principal amount of Outstanding Securities that must
consent to an amendment, supplement or waiver or consent to take any action
under this Indenture or the Securities,


 


(d) 
impair the right to institute suit for the enforcement of any payment on or
with respect to the Securities,


 


(e) 
waive a default in payment with respect to the Securities,


 


(f) 
reduce or change the rate or time for payment of interest on the Securities,


 


(g) 
make any change that adversely affects the conversion rights of any Security,
or


 


(h)  reduce the Fundamental Change Purchase Price or
amend or modify in any manner adverse to the Holders of Securities the Company’s
obligation to make any such payment, whether through an amendment or waiver of
provisions in the covenants or definitions related thereto or otherwise.


 


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


 


The
Trustee shall join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amendment or supplemental indenture.


 


SECTION 9.03. 
Execution of Supplemental Indentures.  In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be given, and (subject to Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel and an Officer’s Certificate stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture.  The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise; provided that the Trustee shall enter into and execute all other
supplemental indentures which satisfy all applicable conditions under this Article IX.


 


SECTION 9.04. 
Effect of Supplemental Indentures.  Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance 


 


44

















 


therewith,
and such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.


 


SECTION 9.05. 
Conformity with Trust Indenture Act.  Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.


 


SECTION 9.06. 
Reference in Securities to Supplemental Indentures.  Securities authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture, provided that
any failure by the Trustee to make such notation shall not affect the validity
of the matter provided for in such supplemental indenture or any Security
hereunder.  If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.


 


SECTION 9.07. 
Waiver of Certain Covenants.  The Company may omit in any
particular instance to comply with any covenant or condition set forth in Section 8.01
and pursuant to Section 9.01(ii), if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.


 


SECTION 9.08. 
No Liability for Certain Persons.  No director, officer, employee,
or stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Securities or this Indenture based on or
by reason of such obligations or their creation.  Each Holder by accepting a Security waives
and releases all such liability.  The
foregoing waiver and release are an integral part of the consideration for the
issuance of the Securities.


 


ARTICLE X


 


Covenants


 


SECTION 10.01. 
Payment of Principal, Premium and Interest.  The Company shall duly and punctually pay the
principal of (and premium, if any) and interest on the Securities in accordance
with the terms of the Securities and this Indenture.  The Company will deposit or cause to be
deposited with the Trustee or its nominee, no later than the opening of
business on the date of the Stated Maturity of any Security or no later than
the opening of business on the due date for any installment of interest, all
payments so due, which payments shall be in immediately available funds on the
date of such Stated Maturity or due date as the case may be.


 


45

















 


SECTION 10.02. 
Maintenance of Office or Agency.  The Company shall maintain in the
Borough of Manhattan, The City of New York, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served.  The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency.  If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at a
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.  In the event any such notice or
demands are so made or served on the Trustee, the Trustee shall promptly
forward copies thereof to the Company.


 


The
Company may also from time to time designate one or more other offices or
agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, 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.


 


The
Company hereby initially designates the Trustee as Paying Agent and Security
Registrar, and the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York, located at 101 Barclay Street, Floor 8 West,
New York, New York 10286, Attention: 
Corporate Trust Administration, as one such office or agency of the
Company for each of the aforesaid purposes.


 


SECTION 10.03. 
Money for Security Payments to be Held in Trust.  If the Company shall at any time act as its
own Paying Agent, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.


 


Whenever
the Company shall have one or more Paying Agents, the Company will, prior to
11:00 a.m., New York City time, on each due date of the principal of (and
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.


 


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


 


46

















 


the provisions of the Trust Indenture Act applicable to it as Paying
Agent and (ii) during the continuance of any default by the Company (or
any other obligor upon the Securities) in the making of any payment in respect
of the Securities, upon the written request of the Trustee, forthwith pay to
the Trustee all sums held in trust by such Paying Agent as such.


 


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


 


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


 


SECTION 10.04. 
Existence; Activities.  Subject to Article VIII, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its existence, rights (charter and statutory) and
material franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors of the Company in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.


 


SECTION 10.05. 
Statement by Officers as to Default; Compliance Certificates.   (a)  The Company shall deliver to the
Trustee, prior to March 31 in each year commencing with the year beginning
on January 1, 2010, an Officer’s Certificate, stating whether or not to
the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder), and if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which he may have knowledge.


 


(b) 
The Company shall deliver to the Trustee, as soon as possible and in any event
within five days after the Company becomes aware of the occurrence of a Default



 


47

















 


or an Event of Default,
an Officer’s Certificate setting forth the details of such Default or Event of
Default, and the action which the Company proposes to take with respect
thereto.


 


SECTION 10.06. 
Provision of Financial Information.  For so long as the Securities are
outstanding, whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company
shall file with the Commission (if permitted by Commission practice and
applicable law and regulations) the annual reports, quarterly reports and other
documents which the Company would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any
successor provision thereto if the Company were so subject, such documents to
be filed with the Commission on or prior to the respective dates (the “Required
Filing Dates”) by which the Company would have been required so to file
such documents if the Company were so subject. 
If, notwithstanding the preceding sentence, filing such documents by the
Company with the Commission is not permitted by Commission practice or
applicable law or regulations, the Company will transmit (or cause to be
transmitted) by mail to the Trustee and all Holders of the Securities, as their
names and addresses appear in the Securities Register, copies of such documents
within 30 days after the Required Filing Date.


 


ARTICLE XI


 


Redemption of Securities;
Fundamental Changes and Purchases Thereupon


 


SECTION 11.01. 
Right of Redemption.  The Securities are not redeemable
at the election of the Company prior to the Stated Maturity.


 


SECTION 11.02.  Purchase at Option of Holders Upon a
Fundamental Change:


 


(a) 
If a Fundamental Change occurs at any time, then each Holder of Securities
shall have the right, at such Holder’s option, to require the Company to
purchase for cash any or all of such Holder’s Securities, or any portion of the
principal amount thereof, that is equal to $1,000 or a multiple of $1,000, on a
date specified by the Company that is no earlier than the 20th calendar day
following the date of, and no later than the 35th calendar day following the
date of, delivery of the Fundamental Change Company Notice (the “Fundamental
Change Purchase Date”), at a purchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but
excluding, the Fundamental Change Purchase Date (the “Fundamental Change
Purchase Price”); provided, however,  that if a Fundamental Change Purchase
Date is after a Regular Record Date and on or prior to the Interest Payment
Date to which such Regular Record Date relates, the interest payable in respect
of such Interest Payment Date shall be payable to the Holders of record as of
the corresponding Regular Record Date and the Fundamental Change Purchase Price
shall be equal to 100% of the principal amount of the Securities to be
purchased pursuant to this Article XI. The requirement for the Company to
purchase any Securities on the Fundamental Change Purchase Date will be subject
to extension to comply with applicable law.


 


Purchases
of Securities under this Section 11.02 shall be made, at the option of the
Holder thereof, upon:


 


48
















 


(ii) delivery to the
Paying Agent by a Holder of a duly completed notice (the “Fundamental Change
Purchase Notice”) in the form set forth on the reverse of the Security as Exhibit C
thereto, if the Securities are Definitive Securities, or in compliance with the
Depositary’s procedures for tendering interests in Global Securities, if the
Securities are not Definitive Securities, in each case prior to the close of
business on the Business Day immediately preceding the Fundamental Change
Purchase Date; and


 


(iii) delivery of the
Securities, in the case of Definitive Securities, to the Paying Agent appointed
by the Company (together with all necessary endorsements for transfer), or
book-entry transfer of the Securities, in compliance with the procedures of the
Depositary, such delivery or transfer being a condition to receipt by the
Holder of the Fundamental Change Purchase Price therefor.


 


The
Fundamental Change Purchase Notice in respect of any Securities to be purchased
shall state:


 


(iv) if such Securities
are Definitive Securities, the certificate numbers of such Securities;


 


(v) the portion of the
principal amount of such Securities, which must be $1,000 or a multiple
thereof; and


 


(vi) that such
Securities are to be purchased by the Company pursuant to the applicable
provisions of the Securities and this Supplemental Indenture;


 


provided, however, that if such Securities are in global form, the
Fundamental Change Purchase Notice must also comply with appropriate procedures
of the Depositary.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 11.02
shall have the right to withdraw, in whole or in part, such Fundamental Change
Purchase Notice at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 11.04
below. The Paying Agent shall promptly notify the Company of the receipt by it
of any Fundamental Change Purchase Notice or written notice of withdrawal
thereof.


 


(b)  Fundamental Change Company
Notice. On or before the 20th calendar day after the occurrence of a
Fundamental Change, the Company shall provide to all Holders of record of the
Securities, the Trustee and the Paying Agent (in the case of any Paying Agent
other than the Trustee) a notice (the “Fundamental Change Company Notice”)
of the occurrence of such Fundamental Change and of the purchase right at the
option of the Holders arising as a result thereof. Such notice shall be sent by
first class mail or, in the case of any Global Securities, in accordance with
the procedures of the Depositary for providing notices. Simultaneously with
providing such Fundamental Change Company Notice, the Company shall publish a
notice containing the information included therein in a newspaper of general 


 


49

















 


circulation in New York, New
York or shall publish such information on the Company’s website or through such
other public medium as the Company may use at such time. Each Fundamental
Change Company Notice shall specify:


 


(vii) the events
causing a Fundamental Change;


 


(viii) the date of the
Fundamental Change;


 


(ix) the last date on
which a Holder of Securities may exercise the repurchase right pursuant to this
Article XI;


 


(x) the Fundamental
Change Purchase Price;


 


(xi) the Fundamental Change
Purchase Date;


 


(xii) the name and address
of the Paying Agent and the Conversion Agent, if applicable;


 


(xiii) if applicable, the
applicable Conversion Rate and any adjustments to the applicable Conversion
Rate;


 


(xiv) if applicable, that
the Securities with respect to which a Fundamental Change Purchase Notice has
been delivered by a Holder may be converted only if the Holder withdraws the
Fundamental Change Purchase Notice in accordance with the Indenture; and


 


(xv) the procedures that
Holders must follow to require the Company to purchase their Securities.


 


No
failure of the Company to give the foregoing notices and no defect therein
shall limit the purchase rights of the Holders of Securities or affect the
validity of the proceedings for the purchase of the Securities pursuant to this
Section 11.02.


 


(c) 
No Payment During Events of Default. There
shall be no purchase of any Securities pursuant to this Section 11.02 if
there has occurred and is continuing an Event of Default with respect to the
Securities (other than an Event of Default that is cured by the payment of the
Fundamental Change Purchase Price of the Securities). The Paying Agent will
promptly return to the respective Holders thereof any Definitive Securities
held by it during the continuance of an Event of Default (other than an Event
of Default that is cured by the payment of the Fundamental Change Purchase
Price with respect to the Securities) and shall deem canceled any instructions
for book-entry transfer of the Securities in compliance with the procedures of
the Depositary, in which case, upon such return and cancelation, the
Fundamental Change Purchase Notice with respect thereto shall be deemed to have
been withdrawn.


 


SECTION 11.03. 
Effect of Fundamental Change Purchase Notice.  Upon receipt by the Paying Agent of the
Fundamental Change Purchase Notice specified in Section 11.02 hereof, the
Holder of the Security in respect of which such Fundamental Change Purchase
Notice 


 


50

















 


was given shall (unless such
Fundamental Change Purchase Notice is withdrawn in accordance with Section 11.04
hereof) thereafter be entitled to receive solely the Fundamental Change
Purchase Price in cash with respect to such Security.  Such Fundamental Change Purchase Price shall
be paid to such Holder, subject to receipt of funds by the Paying Agent, on the
later of (x) the Fundamental Change Purchase Date with respect to such
Security (provided,  the
conditions in Section 11.02 hereof have been satisfied) and (y) the
time of delivery or book-entry transfer of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 11.02 hereof.


 


SECTION 11.04. 
Withdrawal of Fundamental Change Purchase Notice.  A Fundamental Change Purchase Notice may be
withdrawn (in whole or in part) by means of a written notice of withdrawal
delivered to the Paying Agent in accordance with the Fundamental Change Company
Notice at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Purchase Date, specifying:


 


(i) the principal
amount of the Securities with respect to which such notice of withdrawal is
being submitted;


 


(ii) if Definitive
Securities have been issued, the certificate numbers of the withdrawn
Securities; and


 


(iii) the principal
amount, if any, of such Securities that remains subject to the original
Fundamental Change Purchase Notice, which portion must be in principal amounts
of $1,000 or a multiple of $1,000;


 


provided, however, that if Definitive Securities have not been issued,
the notice must comply with appropriate procedures of the Depositary.


 


The
Paying Agent will promptly return to the respective Holders thereof any
Definitive Securities with respect to which a Fundamental Change Purchase
Notice has been withdrawn in compliance with the provisions of this Section 11.04.


 


SECTION 11.05. 
Deposit of Fundamental Change Purchase Price.  Prior to 11:00 a.m. (local time in The
City of New York) on the Fundamental Change Purchase Date, the Company shall
deposit with the Paying Agent (or, if the Company or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate and
hold in trust as provided herein) an amount of money (in immediately available
funds if deposited on such Business Day) sufficient to pay the Fundamental
Change Purchase Price of all the Securities or portions thereof that are to be
purchased as of the Fundamental Change Purchase Date. If the Paying Agent holds
cash or securities sufficient to pay the Fundamental Change Purchase Price of
the Securities for which a Fundamental Change Purchase Notice has been tendered
and not withdrawn in accordance with this Indenture on the Fundamental Change
Purchase Date, then as of such Fundamental Change Purchase Date, (a) such
Securities will cease to be outstanding and interest will cease to accrue
thereon (whether or not book-entry transfer of such Securities is made or such
Securities have been delivered to the Paying Agent) and (b) all other
rights of the Holders in respect thereof will terminate (other than the right
to receive the Fundamental Change 


 


51

















 


Purchase Price and
previously accrued and unpaid interest upon delivery or book-entry transfer of
such Securities).


 


SECTION 11.06. 
Securities Purchased in Whole or in Part.  Any Security that is to be purchased, whether
in whole or in part, shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires in the case of Definitive
Securities, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of
the Security so surrendered that is not purchased.


 


SECTION 11.07. 
Covenant to Comply With Applicable Laws Upon Purchase of Securities.  In connection with any offer to purchase
Securities under Section 11.02 hereof, the Company shall, in each case if
required, (i) comply with Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act that may then be applicable, (ii) file
a Schedule TO or any other required schedule under the Exchange Act and (iii) otherwise
comply with all federal and state securities laws so as to permit the rights
and obligations under Section 11.02 to be exercised in the time and in the
manner specified in Section 11.02.


 


SECTION 11.08. 
Repayment to the Company.  To the extent that the aggregate amount of
cash deposited by the Company pursuant to Section 11.05 exceeds the
aggregate Fundamental Change Purchase Price of the Securities or portions
thereof that the Company is obligated to purchase as of the Fundamental Change
Purchase Date, then, following the Fundamental Change Purchase Date, the Paying
Agent shall promptly return any such excess to the Company.


 


ARTICLE XII


 


Conversion


 


SECTION 12.01. 
Right to Convert.  (a) 
Subject to and upon compliance with the provisions of this Indenture, each
Holder of Securities shall have the right, at such Holder’s option, to convert
the principal amount of any such Securities, or any portion of such principal
amount equal to $1,000 or a multiple of $1,000 thereof, at the Conversion Rate
in effect on the Conversion Date for such Securities, (x) prior to the
close of business on the Business Day immediately preceding May 15, 2015,
only upon satisfaction of one or more of the conditions described in clauses (i) through
(iv) below and (y) on or after May 15, 2015, at any time prior
to the close of business on the second Scheduled Trading Day immediately
preceding November 15, 2015 irrespective of the conditions described in
clauses (i) through (iv) below:


 


(i) Prior to the
close of business on the Business Day immediately preceding May 15, 2015,
a Holder of Securities may surrender all or a portion of its Securities for
conversion during any fiscal quarter (and only during such fiscal quarter)
commencing after December 31, 2009 if the Last Reported Sale Price of 


 


52

















 


the Common Stock for at least 20 Trading Days
(whether or not consecutive) during the period of 30 consecutive Trading Days
ending on the last Trading Day of the immediately preceding fiscal quarter is
greater than or equal to 130% of the applicable Conversion Price in effect on
each applicable Trading Day. The Company shall notify the Trustee and the
Conversion Agent if the Securities become convertible in accordance with this Section 12.01(a)(i).


 


(ii) Prior to the close
of business on the Business Day immediately preceding May 15, 2015, a
Holder of Securities may surrender its Securities for conversion during the
five Business Day period after any 10 consecutive Trading Day period (the “Measurement
Period”) in which the Trading Price per $1,000 principal amount of
Securities, as determined following a request by a Holder of Securities in
accordance with the procedures set forth in this Section 12.01(a)(ii), for
each Trading Day of such period was less than 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate on such
Conversion Date (the “Trading Price Condition”). The Bid Solicitation
Agent shall have no obligation to determine the Trading Price of the Securities
in accordance with this Section 12.01(a)(ii) unless requested by the
Company, and the Company shall have no obligation to make such request unless a
Holder of Securities provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Securities would be less than 98%
of the product of the Last Reported Sale Price of the Common Stock and the
applicable Conversion Rate. The Company shall instruct the Bid Solicitation
Agent to determine (or, if the Company is then acting as Bid Solicitation
Agent, the Company shall determine) the Trading Price of the Securities
beginning on the next Trading Day promptly following the receipt of such
evidence and on each successive Trading Day until such Trading Day on which the
Trading Price per $1,000 principal amount of Securities is greater than or
equal to 98% of the product of the Last Reported Sale Price of the Common Stock
and the applicable Conversion Rate. If the Company does not so instruct the Bid
Solicitation Agent to obtain (or, if the Company is then acting as Bid
Solicitation Agent, the Company does not obtain) bids when required, the
Trading Price per $1,000 principal amount of the Securities will be deemed to
be less than 98% of the product of the Last Reported Sale Price of the Common
Stock and the applicable Conversion Rate on each day the Company fails to do
so. If the Trading Price Condition has been met, the Company shall so notify
Holders, the Trustee and the Conversion Agent. If, at any time after the
Trading Price Condition has been met, the Trading Price per $1,000 principal
amount of Securities is greater than or equal to 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate for such date,
the Company shall so notify the holders of the Securities, the Trustee and the
Conversion Agent.


 


(iii) If the Company
elects to:


 


(A) 
issue to all or substantially all holders of Common Stock certain rights or
warrants entitling them to purchase, for a period expiring 


 


53

















 


within 60 days after
the announcement date of such issuance, shares of Common Stock at less than the
average of the Last Reported Sale Prices of a share of Common Stock for the 10
consecutive Trading Day period ending on the Trading Day immediately preceding
the date of announcement of such issuance; or


 


(B) 
distribute to all or substantially all holders of Common Stock assets, debt
securities or certain rights to purchase securities of the Company, which
distribution has a per share value, as reasonably determined by the Board of Directors,
exceeding 10% of the Last Reported Sale Price of the Common Stock on the
Trading Day preceding the date of announcement for such distribution,


 


then, in each case, the
Company shall notify the Holders of the Securities at least 50 Scheduled Trading
Days prior to the Ex-Dividend Date for such issuance. Once the Company has
given such notice, Holders may surrender Securities for conversion at any time
until the earlier of the close of business on the Business Day immediately
prior to such Ex-Dividend Date or the Company’s announcement that such issuance
or distribution will not take place, even if the Securities are not otherwise
convertible at such time. Notwithstanding the foregoing, a Holder of Securities
may not convert its Securities under the provisions of this Section 12.01(a)(iii) if
such Holder will participate in such issuance or distribution, at the same time
and upon the same terms as a holder of Common Stock, as if such Holder held,
for each $1,000 principal amount of Securities, a number of shares of Common
Stock equal to the Conversion Rate in effect immediately prior to the
Ex-Dividend Date.


 


(iv) If a transaction
or event that constitutes a Fundamental Change or a Make-Whole Fundamental
Change occurs, regardless of whether a Holder has the right to require the
Company to purchase the Securities pursuant to Article XI hereof, or if
the Company is a party to a consolidation, merger, binding share exchange, or
sale, transfer or lease of all or substantially all of the Company’s assets, in
each case, pursuant to which the Common Stock would be converted into cash,
securities or other assets, Holders may surrender Securities for conversion at
any time from or after the date which is 50 Scheduled Trading Days prior to the
anticipated effective date of such transaction until 35 Trading Days after the
actual effective date of such transaction (or, if such transaction also
constitutes a Fundamental Change, until the related Fundamental Change Purchase
Date). The Company shall notify Holders and the Trustee as promptly as
practicable following the date the Company publicly announces such transaction,
but in no event less than 50 Scheduled Trading Days prior to the anticipated
effective date of such transaction


 


(b) 
Securities may not be converted after the close of business on the second
Scheduled Trading Day immediately preceding November 15, 2015.


 


54
















 


SECTION 12.02.  Conversion Procedures.


 


(a) 
Each Security shall be convertible at the office of the Conversion Agent and,
if applicable, in accordance with the procedures of the Depositary.


 


(b) 
In order to exercise the conversion privilege with respect to any interest in a
Global Security, the Holder must complete the appropriate instruction form for
conversion pursuant to the Depositary’s book-entry conversion program, furnish
appropriate endorsements and transfer documents if required by the Company or
the Conversion Agent, and pay the funds, if any, required by Section 12.03(e) and
any taxes or duties if required pursuant to Section 12.08, and the
Conversion Agent must be informed of the conversion in accordance with the
customary practice of the Depositary. In order to exercise the conversion
privilege with respect to any Definitive Securities, the Holder of any such
Securities to be converted, in whole or in part, shall:


 


(ii) complete and
manually sign the conversion notice provided on the back of the Security (the “Conversion
Notice”) or a facsimile of the Conversion Notice;


 


(iii) deliver the
Conversion Notice, which is irrevocable, and the Security to the Conversion
Agent;


 


(iv) if required,
furnish appropriate endorsements and transfer documents,


 


(v) make any payment
required under Section 12.03(e); and


 


(vi) if required, pay
all transfer or similar taxes as set forth in Section 12.08.


 


The
date on which the Holder satisfies all of the applicable requirements set forth
above is the Conversion Date (the “Conversion
Date”). The Conversion Agent will, as promptly as possible, and in
any event within two (2) Business Days of the receipt thereof, provide the
Company with notice of any conversion by a Holder of the Securities.


 


(c) 
Each Conversion Notice shall state the name or names (with address or
addresses) in which any certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued. All such Securities
surrendered for conversion shall, unless the shares issuable on conversion are
to be issued in the same name as the registration of such Securities, be duly
endorsed by, or be accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the Holder or his duly authorized attorney.


 


(d) 
In case any Securities of a denomination greater than $1,000 shall be
surrendered for partial conversion, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of the Securities so surrendered,
without charge, new Securities in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered
Securities.


 


Each
conversion shall be deemed to have been effected as to any such Securities (or
portion thereof) surrendered for conversion on the relevant Conversion Date; provided, 


 


55

















 


however, that the person
in whose name the certificate or certificates for the number of shares of
Common Stock, if any, that shall be issuable upon such conversion in respect of
any Trading Day during an Observation Period, if applicable, shall become the
Holder of record of such shares of Common Stock as of the close of business on
the last Trading Day of such Observation Period.


 


(e)  Upon the
conversion of an interest in Global Securities, the Trustee (or other
Conversion Agent appointed by the Company) shall make a notation on such Global
Securities as to the reduction in the principal amount represented thereby. The
Company shall notify the Trustee in writing of any conversions of Securities
effected through any Conversion Agent other than the Trustee.


 


(f) 
Notwithstanding the foregoing, a Security in respect of which a Holder has
delivered a Fundamental Change Purchase Notice exercising such Holder’s option
to require the Company to purchase such Security may be converted only if such
notice of exercise is withdrawn in accordance with Article XI hereof prior
to the close of business on the Business Day prior to the relevant Fundamental
Change Purchase Date.


 


SECTION 12.03.  Payments Upon Conversion.  (a) 
Except as provided in Section 12.06(b), upon conversion of any
Security, on the third Business Day immediately following the last Trading Day
of the relevant Observation Period, the Company shall deliver to converting
Holders, in respect of each $1,000 principal amount of Securities being
converted, a “Settlement Amount”  equal
to the sum of the Daily Settlement Amounts for each of the 40 Trading Days
during the applicable Observation Period for such Security.


 


(b) 
The “Daily Settlement Amount,”  for
each of the 40 Trading Days during the Observation Period, shall consist of:


 


(i) cash equal to the
lesser of $25 and the Daily Conversion Value, and


 


(ii) to the extent the
Daily Conversion Value exceeds $25, a number of shares of Common Stock (the “Daily
Share Amount”) equal to (x) the difference between the Daily
Conversion Value and $25, divided by (y) the Daily VWAP for such day,
subject to the Company’s right to pay cash in lieu of all or a portion of such
number of shares, as provided in Section 12.03(c).


 


(c) 
By the close of business on the Scheduled Trading Day prior to the first
Scheduled Trading Day of the applicable Observation Period, the Company may
specify a percentage of the Daily Share Amount that will be settled in cash
(the “Cash Percentage”), and the Company will notify converting Holders
by notifying the Trustee (the  “Cash
Percentage Notice”). With respect to any Securities that are converted on
or after May 15, 2015, the Cash Percentage specified by the Company in the
Cash Percentage Notice for the corresponding Observation Period will apply to
all such conversions. If the Company elects to specify a Cash Percentage, the
amount of cash that the Company will deliver in lieu of all or the applicable
portion of the Daily Share Amount in respect of each Trading Day in the
applicable Observation Period will equal (i) the Cash Percentage,
multiplied by (ii) the Daily Share Amount for such Trading Day (assuming
that the Company had not specified a Cash Percentage), multiplied by 


 


56

















 


(iii) the Daily VWAP
for such Trading Day. The number of shares deliverable in respect of each
Trading Day in the applicable Observation Period will be a percentage of the
Daily Share Amount (assuming that the Company had not specified a Cash
Percentage) equal to 100% minus  the
Cash Percentage. If the Company does not specify a Cash Percentage in
accordance with this Section 12.03(c), the Company shall settle the entire
Daily Share Amount for each Trading Day in such Observation Period in Common
Stock (plus cash in lieu of fractional shares). The Company may, at its option,
revoke any Cash Percentage Notice in respect of any Observation Period by
notice to the Trustee; provided,  that
the Trustee receives notice of such revocation by the close of business on the
Scheduled Trading Day immediately prior to the first Scheduled Trading Day of
such Observation Period.


 


(d) 
Subject to Section 12.03(e) below, upon conversion, Holders shall not
receive any separate cash payment for accrued and unpaid interest or Additional
Interest, if any, unless such conversion occurs between a Regular Record Date
and the Interest Payment Date to which it relates.


 


(e) 
Upon the conversion of any Securities, the Holder will not be entitled to
receive any separate cash payment for accrued and unpaid interest or Additional
Interest, if any, except to the extent specified below. The Company’s delivery
to the Holder of cash or a combination of cash and Common Stock, if applicable,
together with any cash payment for any fractional share of Common Stock, into
which a Security is convertible will be deemed to satisfy in full the Company’s
obligation to pay the principal amount of the Securities so converted and
accrued and unpaid interest and Additional Interest, if any, to, but not
including, the Conversion Date. As a result, accrued and unpaid interest and
Additional Interest, if any, to, but not including, the Conversion Date will be
deemed to be paid in full rather than cancelled, extinguished or forfeited.
Notwithstanding the foregoing, if Securities are converted after the close of
business on a Regular Record Date for the payment of interest, Holders of such
Securities at the close of business on such Regular Record Date will receive
the interest and Additional Interest, if any, payable on such Securities on the
corresponding Interest Payment Date notwithstanding the conversion. Securities
surrendered for conversion during the period from the close of business on any
Regular Record Date to the open of business on the immediately following
Interest Payment Date must be accompanied by funds equal to the amount of
interest and Additional Interest, if any, payable on the Securities so converted;
provided,  that no such
payment need be made (i) for conversions following the Regular Record Date
immediately preceding November 15, 2015 (ii) if the Company has
specified a Fundamental Change Purchase Date that is after a Regular Record
Date and on or prior to the corresponding Interest Payment Date, or (iii) to
the extent of any overdue interest, if any overdue interest exists at the time
of conversion with respect to such Security.


 


(f)  The Company
shall not issue fractional shares of Common Stock upon conversion of
Securities.  If multiple Securities shall
be surrendered for conversion at one time by the same Holder, the number of
full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered. If any
fractional share of stock would be issuable upon the conversion of any
Securities, the Company shall make payment therefor in 


 


57

















 


cash in lieu of fractional
shares of Common Stock based on the Daily VWAP of the Common Stock on the final
Trading Day of the applicable Observation Period.


 


(g)  Solely for
purposes of determining the payments and deliveries due upon conversion under
this Section 12.03, and notwithstanding the definition of “Trading Day”
contained in Section 1.01, “Trading Day”
means a day on which (i) there is no Market Disruption Event
and (ii) trading in the Common Stock generally occurs on the New York
Stock Exchange or, if the Common Stock is not then listed on the New York Stock
Exchange, on the principal other United States national or regional securities
exchange on which the Common Stock is then listed or, if the Common Stock is
not then listed on a United States national or regional securities exchange, on
the principal other market on which the Common Stock is then traded. If the
Common Stock (or other security for which a Daily VWAP must be determined) is
not so listed or traded, “Trading Day” means a Business Day.


 


SECTION 12.04.  Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that
the Company will not make any adjustment to the Conversion Rate if Holders of
Securities participate, as a result of holding the Securities, in any of the
transactions described under Section 12.04(a) (but only with respect
to stock dividends or distributions), Section 12.04(b), Section 12.04(c),
and Section 12.04(d), at the same time as holders of the Common Stock
participate, without having to convert their Securities, as if such Holders
held a number of shares of Common Stock equal to the Conversion Rate in effect
for such Securities immediately prior to the Ex-Dividend Date for such event.


 


(a)  If the Company,
at any time or from time to time while any of the Securities are outstanding,
exclusively issues shares of its Common Stock as a dividend or distribution on
shares of Common Stock, or if the Company effects a share split or share
combination, then the Conversion Rate will be adjusted based on the following
formula:


 


 





where


 


	
   

  	
   

  	
   

  
	
  CR0

  	
  =

  	
  The Conversion Rate in effect immediately prior to
  the open of business on the Ex-Dividend Date of such dividend or distribution,
  or immediately prior to the open of business on the effective date of such
  share split or share combination, as applicable;

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  The Conversion Rate in effect immediately after the
  open of business on such Ex-Dividend Date or such effective date;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  The number of shares of Common Stock outstanding
  immediately prior to the open of business on such Ex-Dividend Date or such
  effective date; and

  
	
   

  	
   

  	
   

  
	
  OS1

  	
  =

  	
  The number of shares of Common Stock outstanding
  immediately after giving effect to such 

  



 


58

















 


	
   

  	
   

  	
  dividend, distribution, share split or share
  combination.

  



 


Such
adjustment shall become effective immediately after the open of business on the
Ex-Dividend Date for such dividend or distribution or the effective date for
such share split or share combination. If any dividend or distribution of the
type described in this Section 12.04(a) is declared but not so paid
or made, the Conversion Rate shall again be adjusted to the Conversion Rate
which would then be in effect if such dividend or distribution had not been
declared.


 


(b) 
If the Company, at any time or from time to time while any of the Securities
are outstanding, issues to all or substantially all holders of the Common Stock
any rights or warrants entitling them for a period of not more than 60 calendar
days after the announcement date of such issuance to subscribe for or purchase
shares of the Common Stock at a price per share less than the average of the
Last Reported Sale Prices of Common Stock for the 10 consecutive  Trading-Day period ending on the Trading
Day immediately preceding the date of announcement of such issuance, the
Conversion Rate shall be adjusted based on the following formula:


 


 





where


 


	
  CR0

  	
  =

  	
  The Conversion Rate in effect immediately prior to
  the open of business on the Ex-Dividend Date for such issuance;

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  The Conversion Rate in effect immediately after the
  open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  The number of shares of Common Stock outstanding immediately
  prior to the open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  
	
  X

  	
  =

  	
  The total number of shares of Common Stock issuable
  pursuant to such rights or warrants; and

  
	
   

  	
   

  	
   

  
	
  Y

  	
  =

  	
  The number of shares of Common Stock equal to the
  aggregate price payable to exercise such rights or warrants divided by the average of the Last
  Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day
  period ending on the Trading Day immediately preceding the date of
  announcement of the issuance of such rights or warrants.

  



 


To
the extent such rights or warrants are not exercised prior to their expiration
or termination, the Conversion Rate shall be readjusted to the Conversion Rate
which would be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of the delivery of only the number of
shares of Common Stock actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if the date fixed for the
determination of shareholders entitled to receive such rights or warrants had
not been fixed. For the purposes of this Section 12.04(b), in determining
whether any rights or warrants entitle the holders to 


 


59

















 


subscribe
for or purchase shares of Common Stock at less than the average of the Last
Reported Sale Prices of Common Stock for the 10 consecutive Trading Day period
ending on the Trading Day immediately preceding the date of announcement of
such issuance, and in determining the aggregate exercise price payable for such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants and any amount payable on
the exercise thereof, with the value of such consideration, if other than cash,
as shall be determined in good faith by the Board of Directors.


 


(c)  If the Company,
at any time or from time to time while the Securities are outstanding, distributes
shares of any class of Capital Stock of the Company, evidences of its
indebtedness, other assets or property of the Company or rights or warrants to
acquire the Company’s Capital Stock or other securities to all or substantially
all holders of its Common Stock, excluding:


 


(ii) dividends or
distributions and rights or warrants as to which an adjustment was effected
pursuant to Section 12.04(a) or Section 12.04(b);


 


(iii) dividends or
distributions paid exclusively in cash; and


 


(iv) Spin-Offs to which
the provisions set forth below in this Section 12.04(c) shall apply;


 


then the Conversion Rate
shall be adjusted based on the following formula:


 


 





where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to
  the open of business on the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  the Conversion Rate in effect immediately after the
  open of business on such Ex-Dividend Date;

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the average of the Last Reported Sale Prices of the
  Common Stock over the 10 consecutive Trading Day period ending on the Trading
  Day immediately preceding the Ex-Dividend Date for such distribution; and

  
	
   

  	
   

  	
   

  
	
  FMV

  	
  =

  	
  the fair market value (as determined by the
  Company’s Board of Directors) of the shares of Capital Stock, evidences of
  indebtedness, assets, property, rights or warrants distributed with respect
  to each outstanding share of the Common Stock on the Ex-Dividend Date for
  such distribution.

  



 


Such
adjustment shall become effective immediately after the open of business on the
Ex-Dividend Date for such distribution. 
If the Company’s Board of Directors determines the “FMV” (as defined
above) of any distribution for purposes of this Section 12.04(c) by
reference to the actual or when issued trading market for any securities, it
must in doing so consider the 


 


60

















 


prices
in such market over the same period used in computing the average of the Last
Reported Sale Prices of the Common Stock. Notwithstanding the foregoing, if “FMV”
(as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing
adjustment, each Holder of Securities shall receive, at the same time and upon
the same terms as holders of the Common Stock, the amount and kind of
securities and assets such Holder would have received as if such Holder owned a
number of shares of Common Stock equal to the Conversion Rate in effect
immediately prior to the Ex-Dividend Date for the distribution of the
securities or assets.


 


With
respect to an adjustment pursuant to this Section 12.04(c) where
there has been a payment of a dividend or other distribution on the Common
Stock of shares of Capital Stock of any class or series, or similar equity
interest, of or relating to a Subsidiary or other business unit and such
dividend or distribution is listed for trading on a securities exchange (a “Spin-Off”),
the Conversion Rate shall be increased based on the following formula:


 


 





where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to
  the end of the Valuation Period (as defined below);

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  the Conversion Rate in effect immediately after the
  end of the Valuation Period;

  
	
   

  	
   

  	
   

  
	
  FMV0

  	
  =

  	
  the average of the Last Reported Sale Prices of the
  Capital Stock or similar equity interest distributed to holders of Common
  Stock applicable to one share of Common Stock (determined for purposes of the
  definition of Last Reported Sale Price as if such Capital Stock or similar
  equity interest were the Common Stock) over the first ten consecutive Trading
  Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and

  
	
   

  	
   

  	
   

  
	
  MP0

  	
  =

  	
  the average of the Last Reported Sale Prices of
  Common Stock over the Valuation Period.

  



 


The
adjustment to the Conversion Rate under the preceding paragraph will occur on
the last day of the Valuation Period; provided,  that
in respect of any conversion during the Valuation Period, references above to
ten Trading Days shall be deemed replaced with such lesser number of Trading
Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the
Conversion Date in determining the applicable Conversion Rate.


 


(d) 
If the Company pays any cash dividend or distribution to all or substantially
all holders of Common Stock, the Conversion Rate shall be adjusted based on the
following formula:


 


 





 


61

















 


where


 


	
  CR0

  	
  =

  	
  The Conversion Rate in effect immediately prior to
  the open of business on the Ex-Dividend Date for such dividend or
  distribution;

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  The Conversion Rate in effect immediately after the
  open of business on the Ex-Dividend Date for such dividend or distribution;

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  The Last Reported Sale Price of the Common Stock on
  the Trading Day immediately preceding the Ex-Dividend Date for such dividend
  or distribution; and

  
	
   

  	
   

  	
   

  
	
  C

  	
  =

  	
  The amount in cash per share the Company distributes
  to holders of the Common Stock

  



 


(e) 
If the Company or any of its Subsidiaries makes a payment in respect of a
tender offer or exchange offer for Common Stock, to the extent that the cash
and value of any other consideration included in the payment per share of
Common Stock exceeds the Last Reported Sale Price per share of Common Stock on
the Trading Day next succeeding the last date on which tenders or exchanges may
be made pursuant to such tender or exchange offer, the Conversion Rate shall be
increased based on the following formula:


 


 





where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to
  the close of business on the 10th Trading Day immediately following, and
  including, the Trading Day next succeeding the date such tender or exchange
  offer expires;

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  the Conversion Rate in effect immediately after the
  close of business on the 10th Trading Day immediately following, and
  including, the Trading Day next succeeding the date such tender or exchange
  offer expires;

  
	
   

  	
   

  	
   

  
	
  AC

  	
  =

  	
  the aggregate value of all cash and any other
  consideration (as determined by the Company’s Board of Directors) paid or
  payable for shares purchased in such tender or exchange offer;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common Stock outstanding
  immediately prior to the date such tender or exchange offer expires;

  
	
   

  	
   

  	
   

  
	
  OS1

  	
  =

  	
  the number of shares of Common Stock outstanding
  immediately after the date such tender or exchange offer expires (after
  giving effect to, for the avoidance of doubt, the purchase of all shares
  accepted for purchase or exchange in such tender or exchange offer); and

  
	
   

  	
   

  	
   

  
	
  SP1

  	
  =

  	
  the average of the Last Reported Sale Prices of
  Common Stock over the 10 consecutive Trading Day period commencing on the
  Trading Day next succeeding the date such tender or exchange offer expires.

  



 


62
















 


The
adjustment to the Conversion Rate under this Section 12.04(e) shall
occur as of the close of business on the tenth Trading Day from, and including,
the Trading Day next succeeding the date such tender or exchange offer expires;
provided,  that
in respect of any conversion within 10 Trading Days immediately following, and
including, the expiration date of any tender or exchange offer, references with
respect to 10 Trading Days shall be deemed replaced with such lesser number of
Trading Days as have elapsed between the expiration date of such tender or
exchange offer and the Conversion Date in determining the applicable Conversion
Rate.


 


(f) 
The Company from time to time may increase the Conversion Rate by any amount
for any period of time of at least 20 Business Days, so long as the Company’s
Board of Directors shall have made a determination that such increase would be
in the best interests of the Company, which determination shall be conclusive.
Whenever the Conversion Rate is increased pursuant to this Section 12.04(f),
the Company shall mail to Holders of record of the Securities a notice of the
increase at least one day prior to the date the increased Conversion Rate takes
effect, and such notice shall state the increased Conversion Rate and the period
during which it will be in effect.


 


(g) 
The Company may (but shall not be required to) increase the Conversion Rate, in
addition to any adjustments pursuant to Section 12.04(a), 12.04(b),
12.04(c), 12.04(d), 12.04(e) or 12.04(f), if the Company’s Board of
Directors considers such increase to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock in
connection with a dividend or distribution of shares (or rights to acquire
shares) or similar event.


 


(h) 
All calculations under this Article XII shall be made by the Company and
shall be made to the nearest cent (including, in the case of any adjustment to
the Conversion Rate, the resulting adjustment to the Conversion Price) or to
the nearest one ten-thousandth of a share. No adjustment shall be required to
be made for the Company’s issuance of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock or rights to
purchase shares of Common Stock or such convertible or exchangeable securities,
other than as provided in this Section 12.04 and in Section 12.06
hereof.


 


(i) 
Whenever the Conversion Rate is adjusted as herein provided, the Company shall
promptly file with the Trustee and any Conversion Agent an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a
brief statement of the facts requiring such adjustment. Unless and until a
Responsible Officer of the Trustee shall have received such Officers’
Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume without inquiry that the last
Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate
and the date on which each adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Rate to each Holder of the
Securities. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.


 


(j) 
For purposes of this Section 12.04, the number of shares of Common Stock
at any time outstanding shall not include shares held in the treasury of the
Company so long as the 


 


63

















 


Company does not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company, but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.


 


(k) 
Notwithstanding the foregoing, if the application of the foregoing formulas set
forth in this Section 12.04 would result in a decrease in the Conversion
Rate, no adjustment to the Conversion Rate shall be made (other than as a
result of a share combination).


 


(l) 
Notwithstanding anything to the contrary in this Article XII, no
adjustment to the Conversion Rate shall be made:


 


(i) upon the issuance
of any shares of Common Stock pursuant to any present or future plan providing
for the reinvestment of dividends or interest payable on the Company’s
securities and the investment of additional optional amounts in shares of
Common Stock under any plan;


 


(ii) upon the issuance
of any shares of Common Stock or options or rights to purchase those shares
pursuant to any present or future employee, director or consultant benefit plan
or program of or assumed by the Company or any of its Subsidiaries;


 


(iii) upon the issuance
of any shares of Common Stock pursuant to any option, warrant, right or
exercisable, exchangeable or convertible security not described in clause (ii) above
and outstanding as of the date the Securities were first issued;


 


(iv) for a change in
the par value of the Common Stock; or


 


(v) for accrued and
unpaid interest on the Securities.


 


(m) 
The Company shall not be required to make an adjustment in the Conversion Rate
unless the adjustment would require a change of at least 1% in the Conversion
Rate. However, the Company will carry forward any adjustments that are less
than 1% of the Conversion Rate and make such carried forward adjustment,
regardless of whether the aggregate adjustment is less than 1%, (i) upon
any Conversion Date of Securities and (ii) on each Trading Day of any
Observation Period.


 


SECTION 12.05.  Certain Other Adjustments.  Whenever a provision of this Indenture
requires the calculation of Last Reported Sale Prices or Daily VWAP over a span
of multiple days, the Board of Directors will make appropriate adjustments to
such Last Reported Sale Prices or Daily VWAP, the Conversion Rate, or the
amount due upon conversion to account for any adjustment to the Conversion Rate
that becomes effective, or any event requiring an adjustment to the Conversion
Rate where the Ex-Dividend Date of the event occurs, at any time during the
period from which such Last Reported Sale Prices or Daily VWAP are to be
calculated.


 


SECTION 12.06.  Adjustments Upon Certain Fundamental
Changes.  (a)    If a Make-Whole
Fundamental Change occurs and a Holder elects to convert its Securities in


 


64

















 


connection with such
Make-Whole Fundamental Change, the Company shall, under certain circumstances,
increase the Conversion Rate for the Securities so surrendered for conversion
by a number of additional shares of Common Stock (the “Additional Shares”)
as described below. A conversion of Securities shall be deemed for these
purposes to be “in connection with” such Make-Whole Fundamental Change if the
notice of conversion of the Securities is received by the Conversion Agent
from, and including, the Effective Date of the Make-Whole Fundamental Change up
to, and including, the Business Day immediately prior to the related
Fundamental Change Purchase Date (or, in the case of an event that would have
been a Fundamental Change but for the proviso in clause (2) of the
definition thereof, the 35th Trading Day immediately following the Effective
Date of such Make-Whole Fundamental Change).


 


(b) 
Upon surrender of Securities for conversion in connection with a Make-Whole
Fundamental Change, the Company shall have the right to deliver, in lieu of
shares of Common Stock, including the Additional Shares, cash or a combination
of cash and shares of Common Stock as provided under Section 12.01(a)(iv);
provided, however, that if, at the effective time of a Make-Whole
Fundamental Change, the Reference Property is comprised entirely of cash, then,
for any conversion of Securities following the Effective Date of such
Make-Whole Fundamental Change, the amounts deliverable by the Company shall be
calculated based solely on the “Stock Price” (as defined below) for the
Make-Whole Fundamental Change and shall be deemed to be an amount equal to the
Conversion Rate (including any adjustment for Additional Shares) multiplied by
such Stock Price. In such event, the amounts deliverable by the Company shall
be determined and paid to holders in cash on the third Business Day following
the Conversion Date.


 


(c) 
The number of Additional Shares, if any, by which the Conversion Rate will be
increased will be determined by reference to the table attached as Schedule A
hereto, based on the date on which the Make-Whole Fundamental Change occurs or
becomes effective (the “Effective Date”)
and the price (the “Stock Price”) paid (or deemed paid) per share of the
Common Stock in the Fundamental Change. If the holders of the Common Stock
receive only cash in a Make-Whole Fundamental Change described in clause (2) of
the definition of Fundamental Change, the Stock Price shall be the cash amount
paid per share. Otherwise, the Stock Price shall be the average of the Last
Reported Sale Prices of the Common Stock over the ten Trading-Day period ending
on, and including, the Trading Day preceding the Effective Date of the
Make-Whole Fundamental Change.


 


The
exact Stock Prices and Effective Dates may not be set forth in the table in Schedule
A, in which case:


 


(i) If the Stock Price
is between two Stock Prices in the table or the Effective Date is between two
Effective Dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional
Shares set forth for the higher and lower Stock Prices and the earlier and
later Effective Dates, as applicable, based on a 365-day year.


 


(ii) If the Stock Price
is greater than $50.00 per share (subject to adjustment in the same manner as
the Stock Prices set forth in the column headings of the table


 


65

















 


in Schedule A pursuant to subsection (d) below),
no Additional Shares shall be added to the Conversion Rate.


 


(iii) If the Stock
Price is less than $8.89 per share (subject to adjustments in the same manner
as the Stock Prices set forth in the column headings of the table in Schedule A
pursuant to subsection (d) below), no Additional Shares shall be added to
the Conversion Rate.


 


Notwithstanding
the foregoing, in no event shall the Conversion Rate exceed 112.4859 shares of
Common Stock per $1,000 principal amount of Securities, subject to adjustments
in the same manner as the Conversion Rate as set forth in Section 12.04.


 


(d) 
The Stock Prices set forth in the column headings of the table in Schedule A
hereto shall be adjusted as of any date on which the Conversion Rate of the
Securities is otherwise adjusted. The adjusted Stock Prices shall equal the
Stock Prices applicable immediately prior to such adjustment, multiplied by a
fraction, the numerator of which is the Conversion Rate immediately prior to
such adjustment giving rise to the Stock Price adjustment and the denominator
of which is the Conversion Rate as so adjusted. The number of Additional Shares
set forth in such table shall be adjusted in the same manner as the Conversion
Rate as set forth in Section 12.04.


 


(e) 
The Company shall notify the Holders of Securities of the Effective Date of any
Make-Whole Fundamental Change and issue a press release announcing such
Effective Date no later than five business days after such Effective Date.


 


SECTION 12.07.  Effect of Recapitalization,
Reclassification, Consolidation, Merger or Sale.


 


(a) 
If any of the following events occur:


 


(i) any
recapitalization or reclassification of, or change in, the Common Stock (other
than changes resulting from a subdivision or combination);


 


(ii) a consolidation,
merger or combination involving the Company; or


 


(iii) a sale, lease or
other transfer to a third party of the consolidated assets of the Company and
its Subsidiaries substantially as an entirety; or


 


(iv) any statutory
share exchange;


 


in
each case as a result of which the Common Stock would be converted into, or
exchanged for, or would be reclassified or changed into, stock, other
securities, other property or assets (including cash or any combination
thereof) (any such event, a “Merger
Event”), then at the effective time of such Merger Event, the
Company or the successor or purchasing Person, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of execution of such supplemental
indenture) providing that at and after the effective time of such Merger Event,
the right to convert a Security


 


66

















 


will
be changed into a right to convert such Security as set forth in this Indenture
into the kind and amount of shares of stock, other securities or other property
or assets (including cash or any combination thereof) that a holder of a number
of shares of Common Stock equal to the Conversation Rate prior to such Merger
Event would have owned or been entitled to receive (the “Reference Property”, with each “unit of Reference
Property”  meaning the type and amount of Reference Property
that a holder of one share of Common Stock is entitled to receive) upon such
Merger Event; provided, however, that at and after the
effective time of the Merger Event the conversion obligation shall be
calculated and settled in accordance with Section 12.03 such that (i) the
amount payable in cash upon conversion of the Securities as set forth under Section 12.03
will continue to be payable in cash, (ii) the number of shares of Common
Stock (if the Company does not elect to pay cash in lieu of all such shares)
deliverable upon conversion of the Securities under Section 12.03 will be
instead deliverable in the amount and type of Reference Property that a holder
of that number of shares of Common Stock would have been entitled to receive in
such Merger Event and (iii) the Daily VWAP will be calculated based on the
value of a unit of Reference Property.


 


If,
as a result of the Merger Event, each share of Common Stock is converted into
the right to receive more than a single type of consideration (determined based
in part upon any form of stockholder election), then (x) the Reference
Property into which the Securities will be convertible will be deemed to be the
weighted average of the types and amounts of consideration received by the
holders of Common Stock that affirmatively make such an election, and (y) the
unit of Reference Property for purposes of the foregoing sentence shall refer
to the consideration referred to in clause (x) attributable to one share
of Common Stock.


 


The
Company shall not become a party to any such Merger Event unless its terms are
consistent with this Section 12.07. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article XII in the
judgment of the Company’s Board of Directors or the Board of Directors of the
successor Person. If, in the case of any such recapitalization,
reclassification, change, consolidation, merger, combination, sale, lease,
other transfer or statutory share exchange, the Reference Property receivable
thereupon by a holder of Common Stock includes shares of stock, securities or
other property or assets (including cash or any combination thereof) of a
Person other than the successor or purchasing Person, as the case may be, in
such reorganization, reclassification, change, consolidation, merger,
combination, sale, lease, other transfer or statutory share exchange, then such
supplemental indenture shall also be executed by such other Person.


 


(b) 
The Company shall cause notice of the execution of such supplemental indenture
to be mailed to each Holder, at the address of such Holder as it appears on the
register of the Securities maintained by the Registrar, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such supplemental indenture. The above provisions of this Section 12.07
shall similarly apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances. If this Section 12.07
applies to any Merger Event, Section 12.04 shall not apply.


 


67

















 


SECTION 12.08.  Taxes on Shares Issued.  The Company will pay any documentary, stamp
or similar issue or transfer tax due on the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto; provided, however, that if such
documentary, stamp or similar issue or transfer tax is due because the Holder
of such Securities has requested that shares of Common Stock be issued in a
name other than that of the Holder of the Securities converted, then such taxes
will be paid by the Holder, and the Company shall not be required to issue or
deliver any stock certificate evidencing such shares unless and until the
Holder shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.


 


SECTION 12.09.  Reservation of Shares; Shares to be Fully
Paid; Compliance With Governmental Requirements; Listing of Common Stock.  The Company shall reserve, out of its authorized
but unissued shares or shares held in treasury, sufficient shares of Common
Stock to satisfy conversion of the Securities from time to time as such
Securities are presented for conversion (assuming that, at the time of the
computation of such number of shares or securities, all such Securities would
be converted by a single Holder).


 


The
Company covenants that all shares of Common Stock that may be issued upon
conversion of Securities shall be newly issued shares or treasury shares, shall
be duly authorized, validly issued, fully paid and non-assessable and shall be
free from preemptive rights and free from any tax, lien or charge (other than
those created by the Holder).


 


The
Company shall list or cause to have quoted any shares of Common Stock to be
issued upon conversion of Securities on each national securities exchange or
over-the-counter or other domestic market on which the Common Stock is then
listed or quoted.


 


SECTION 12.10.  Responsibility of Trustee.  The Trustee and any Conversion Agent shall
not at any time be under any duty or responsibility to any Holder of Securities
to determine or calculate the Conversion Rate, to determine whether any facts
exist which may require any adjustment of the Conversion Rate, or to confirm
the accuracy of any such adjustment when made or the appropriateness of the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. The Trustee and any other Conversion Agent shall
not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock or of any other securities or property
that may at any time be issued or delivered upon the conversion of any
Securities; and the Trustee and the Conversion Agent make no representations
with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property or
cash upon the surrender of any Securities for the purpose of conversion or to
comply with any of the duties, responsibilities or covenants of the Company
contained in this Article XII. 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,
including its capacity as Conversion Agent and if it is so appointed by the
Company and accepts such appointment, as Bid Solicitation Agent.


 


68

















 


SECTION 12.11.  Notice to Holders Prior to Certain
Actions.  In case:


 


(a)  the Company shall
declare a dividend (or any other distribution) on its Common Stock that would
require an adjustment in the Conversion Rate pursuant to Section 12.04; or


 


(b)  the Company shall
authorize the granting to the holders of all or substantially all of its Common
Stock of rights or warrants to subscribe for or purchase any share of any class
or any other rights or warrants that would require an adjustment in the
Conversion Rate pursuant to Section 12.04 or Section 12.12 hereof; or


 


(c)  of any
reclassification or reorganization of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale, lease or transfer of all or substantially all of the assets of the
Company and its consolidated Subsidiaries; or


 


(d)  of the voluntary
or involuntary dissolution, liquidation or winding up of the Company or any of
its Subsidiaries;


 


then,
in each case (unless notice of such event is otherwise required pursuant to
another provision of this Indenture), the Company shall cause to be filed with
the Trustee and the Conversion Agent and to be mailed to each Holder of
Securities at such Holder’s address appearing on a list of Holders of
Securities, which the Company shall provide to the Trustee, as promptly as
practicable but in any event at least 10 days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend (or any other distribution) or
rights or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution or rights or warrants are to be determined, or (y) the date
on which such reclassification, reorganization, consolidation, merger, sale,
lease, transfer, dissolution, liquidation or winding up is expected to become
effective or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
reorganization, consolidation, merger, sale, transfer, dissolution, liquidation
or winding up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend (or any other distribution),
reclassification, reorganization, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.


 


SECTION 12.12.  Stockholder Rights Plan.  Each share of Common Stock issued upon
conversion of Securities pursuant to this Article XII shall be entitled to
receive the appropriate number of rights, if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as may be provided by the terms of any
stockholder rights plan adopted by the Company, as the same may be amended from
time to time. Notwithstanding the foregoing, if prior to any conversion such
rights have separated from the shares of Common Stock in accordance with the
provisions of the applicable 


 


69

















 


stockholder rights agreement,
the Conversion Rate shall be adjusted at the time of separation as if the
Company had distributed to all holders of the Common Stock, shares of the
Company’s Capital Stock, evidences of indebtedness, assets, property, rights or
warrants as described in Section 12.04(c) above, subject to
readjustment in the event of the expiration, termination or redemption of such
rights.


 


70

















 


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


 


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


 


	
   

  	
   

  	
  UNITED RENTALS, INC.,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ William B. Plummer

  
	
   

  	
   

  	
   

  	
  Name:

  	
  William B. Plummer

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice President and Chief Financial Officer

  



 


 


	
   

  	
   

  	
  THE BANK OF NEW YORK MELLON, as Trustee,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Rafael E. Miranda

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Rafael E. Miranda

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


71
















 


SCHEDULE A


 


The following table sets
forth the amount, if any, by which the Conversion Rate per $1,000 principal
amount of Securities will increase pursuant to Section 12.06 of this
Indenture for each Stock Price and Effective Date set forth below:


 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $8.89

  	
   

  	
  $10.00

  	
   

  	
  $11.00

  	
   

  	
  $12.50

  	
   

  	
  $15.00

  	
   

  	
  $17.50

  	
   

  	
  $20.00

  	
   

  	
  $25.00

  	
   

  	
  $30.00

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  
	
  November 17, 2009

  	
   

  	
  22.4971

  	
   

  	
  18.7213

  	
   

  	
  16.2525

  	
   

  	
  13.5795

  	
   

  	
  10.6807

  	
   

  	
  8.8922

  	
   

  	
  7.6100

  	
   

  	
  5.6187

  	
   

  	
  4.3059

  	
   

  	
  3.4900

  	
   

  	
  2.8699

  	
   

  	
  2.3888

  	
   

  	
  2.0051

  	
   

  
	
  November 15, 2010

  	
   

  	
  22.4971

  	
   

  	
  17.5976

  	
   

  	
  15.0147

  	
   

  	
  12.3113

  	
   

  	
  9.5154

  	
   

  	
  7.8563

  	
   

  	
  6.7102

  	
   

  	
  5.1652

  	
   

  	
  4.1354

  	
   

  	
  3.4043

  	
   

  	
  2.8573

  	
   

  	
  2.1620

  	
   

  	
  1.8273

  	
   

  
	
  November 15, 2011

  	
   

  	
  22.4971

  	
   

  	
  16.4779

  	
   

  	
  13.6849

  	
   

  	
  10.8953

  	
   

  	
  8.1947

  	
   

  	
  6.7254

  	
   

  	
  5.5786

  	
   

  	
  4.2392

  	
   

  	
  3.3705

  	
   

  	
  2.7547

  	
   

  	
  2.2937

  	
   

  	
  1.9351

  	
   

  	
  1.6495

  	
   

  
	
  November 15, 2012

  	
   

  	
  22.4971

  	
   

  	
  15.2910

  	
   

  	
  12.1657

  	
   

  	
  9.2199

  	
   

  	
  6.6349

  	
   

  	
  5.2597

  	
   

  	
  4.4474

  	
   

  	
  3.3848

  	
   

  	
  2.7004

  	
   

  	
  2.2146

  	
   

  	
  1.8505

  	
   

  	
  1.5670

  	
   

  	
  1.3406

  	
   

  
	
  November 15, 2013

  	
   

  	
  22.4971

  	
   

  	
  13.9757

  	
   

  	
  10.3325

  	
   

  	
  7.1521

  	
   

  	
  4.7544

  	
   

  	
  3.7156

  	
   

  	
  3.1261

  	
   

  	
  2.3880

  	
   

  	
  1.9106

  	
   

  	
  1.5706

  	
   

  	
  1.3156

  	
   

  	
  1.1171

  	
   

  	
  0.9585

  	
   

  
	
  November 15, 2014

  	
   

  	
  22.4971

  	
   

  	
  11.8351

  	
   

  	
  7.5021

  	
   

  	
  4.2345

  	
   

  	
  2.4521

  	
   

  	
  1.9244

  	
   

  	
  1.6383

  	
   

  	
  1.2627

  	
   

  	
  1.0138

  	
   

  	
  0.8360

  	
   

  	
  0.7029

  	
   

  	
  0.5990

  	
   

  	
  0.5160

  	
   

  
	
  November 15, 2015

  	
   

  	
  22.4971

  	
   

  	
  10.0111

  	
   

  	
  0.9202

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 
















 


APPENDIX


PROVISIONS RELATING TO
SECURITIES


 


1.                                       Definitions


 


1.1           Definitions


 


For
the purposes of this Appendix the following terms shall have the meanings
indicated below:


 


“Definitive
Security” means a certificated Security that does not include the Global
Securities Legend.


 


“Global
Securities Legend” means the legend set forth under that caption in Exhibit A
to this Indenture.


 


“Securities
Custodian” means the custodian with respect to a Global Security (as appointed
by the Depositary) or any successor person thereto, who shall initially be the
Trustee.


 


“Underwriters”
means (i) with respect to the Securities issued on the Issue Date, the
underwriters listed in the Underwriting Agreement and (ii) with respect to
each issuance of Additional Securities, the Persons purchasing such Additional
Securities under the related underwriting agreement.


 


“Underwriting
Agreement” means (a) the Underwriting Agreement, dated November 10,
2009, among the Company and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Wells Fargo
Securities, LLC, as representatives of the Underwriters, and (b) any other
similar Underwriting Agreement relating to Additional Securities.


 


1.2           Other
Definitions


 


	
  Term:

  	
   

  	
  Defined in Section:

  
	
   

  	
   

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.1(c)

  
	
  “Global Security”

  	
   

  	
  2.1(b)

  



 


2.                                       The Securities


 


2.1           Form and
Dating.


 


(a)           The Securities
issued on the date hereof will be offered and sold by the Company pursuant to
an Underwriting Agreement.  Additional
Securities offered after the date hereof may be offered and sold by the Company
from time to time pursuant to one or more Underwriting Agreements in accordance
with applicable law.


 


(b)           Global
Securities.  The
Securities shall be issued initially in the form of one or more global
Securities in definitive, fully registered form (each, a “Global Security”)



 


2

















 


without interest coupons and
bearing the Global Securities Legend, which shall be deposited on behalf of the
Holders of the Securities represented thereby with the Securities Custodian,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as provided in
this Indenture.  The aggregate principal
amount of any Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depositary or its
nominee and on the schedules thereto as hereinafter provided.


 


(c)           Book-Entry
Provisions.  This Section 2.1(c) shall
apply only to a Global Security deposited with or on behalf of the Depositary.


 


The
Company shall execute and the Trustee shall, in accordance with this Section 2.1(c) and
Section 2.2 and pursuant to an order of the Company signed by one officer
of the Company, authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary for
such Global Security or Global Securities or the nominee of such Depositary and
(ii) shall be delivered by the Trustee to such Depositary or pursuant to
such Depositary’s instructions or held by the Trustee as Securities Custodian.


 


Members
of, or participants in, the Depositary (“Agent Members”) shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Trustee as Securities Custodian or under
such Global Security, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of such Depositary
governing the exercise of the rights of a holder of a beneficial interest in
any Global Security.


 


(d)           Definitive
Securities.  Except as
provided in Section 2.3 or 2.4, owners of beneficial interests in Global
Securities will not be entitled to receive physical delivery of certificated
Securities.


 


2.2           Authentication.  The Trustee shall authenticate and make
available for delivery upon a written order of the Company signed by one
Officer of the Company (a) Securities for original issue on the date
hereof in an aggregate principal amount of $172,500,000 and (b) subject to
the terms of this Indenture, Additional Securities in an unlimited aggregate
principal amount.  Such order shall
specify the amount of the Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated and, in the case of an issuance
of Additional Securities pursuant to Section 3.13 of this Indenture after
the Issue Date, shall certify that such issuance is in compliance with this
Indenture.


 


2.3           Transfer and
Exchange.


 


(a)           Transfer and
Exchange of Definitive Securities.  When Definitive Securities are presented to
the Security Registrar with a request:


 


(i)            to register the
transfer of such Definitive Securities; or


 


3

















 


(ii)           to exchange such
Definitive Securities for an equal principal amount of Definitive Securities of
other authorized denominations,


 


the
Security Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.


 


(b)           Restrictions on
Transfer of a Definitive Security for a Beneficial Interest in a Global
Security.  A Definitive
Security may not be exchanged for a beneficial interest in a Global Security
except upon satisfaction of the requirements set forth below.  Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Security Registrar,
together with written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records with
respect the applicable Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by such Global Security, such
instructions to contain information regarding the Depositary account to be
credited with such increase, then the Trustee shall cancel such Definitive
Security and cause, or direct the Securities Custodian to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Securities Custodian, the aggregate principal amount of Securities
represented by such Global Security to be increased by the aggregate principal
amount of the Definitive Security to be exchanged and shall credit or cause to
be credited to the account of the Person specified in such instructions a
beneficial interest in such Global Security equal to the principal amount of
the Definitive Security so canceled.  If
no applicable Global Securities are then outstanding and the applicable Global
Security has not been previously exchanged for certificated securities pursuant
to Section 2.4, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officer’s
Certificate, a new applicable Global Security in the appropriate principal
amount.


 


(c)           Transfer and
Exchange of Global Securities.


 


(i)            The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor.  A transferor of a
beneficial interest in a Global Security shall deliver a written order given in
accordance with the Depositary’s procedures containing information regarding
the participant account of the Depositary to be credited with a beneficial
interest in such Global Security or another Global Security and such account
shall be credited in accordance with such order with a beneficial interest in
the applicable Global Security and the account of the Person making the
transfer shall be debited by an amount equal to the beneficial interest in the
Global Security being transferred.


 


(ii)           If the proposed
transfer is a transfer of a beneficial interest in one Global Security to a
beneficial interest in another Global Security, the Security Registrar shall
reflect on its books and records the date and an increase in the 


 


4

















 


principal amount of the Global Security to which such interest is being
transferred in an amount equal to the principal amount of the interest to be so
transferred, and the Security Registrar shall reflect on its books and records
the date and a corresponding decrease in the principal amount of Global
Security from which such interest is being transferred.


 


(iii)          Notwithstanding
any other provisions of this Appendix (other than the provisions set forth in Section 2.4),
a Global Security may not be transferred as a whole except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.


 


(d)           Cancelation or
Adjustment of Global Security.  At such time as all beneficial interests in a
Global Security have either been exchanged for Definitive Securities,
transferred, redeemed, repurchased or canceled, such Global Security shall be
returned by the Depositary to the Trustee for cancelation or retained and
canceled by the Trustee.  At any time
prior to such cancelation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, transferred in exchange for an interest in
another Global Security, redeemed, repurchased or canceled, the principal
amount of Securities represented by such Global Security shall be reduced and
an adjustment shall be made on the books and records of the Trustee (if it is
then the Securities Custodian for such Global Security) with respect to such
Global Security, by the Trustee or the Securities Custodian, to reflect such
reduction.


 


(e)           Obligations with
Respect to Transfers and Exchanges of Securities.


 


(i)            To permit
registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate, Definitive Securities and Global Securities at
the Security Registrar’s request.


 


(ii)           No service
charge shall be made for any registration of transfer or exchange of Securities
except as provided in Section 3.06 of this Indenture, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.04,
9.06, 11.06 or 12.02(d) of this Indenture, and in any such case not
involving any transfer.


 


(iii)          Prior to the due
presentation for registration of transfer of any Security, the Company, the
Trustee, the Paying Agent or the Security Registrar may deem and treat the
person in whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and interest on
such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee, the Paying Agent or
the Security Registrar shall be affected by notice to the contrary.


 


5

















 


(iv)          All Securities issued
upon any transfer or exchange pursuant to the terms of this Indenture shall
evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Securities surrendered upon such transfer or exchange.


 


(f)            No Obligation of
the Trustee.


 


(i)            The Trustee
shall have no responsibility or obligation to any beneficial owner of a Global
Security, a member of, or a participant in the Depositary or any other Person
with respect to the accuracy of the records of the Depositary or its nominee or
of any participant or member thereof, with respect to any ownership interest in
the Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice
(including any Fundamental Change Company Notice) or the payment of any amount,
under or with respect to such Securities. 
All notices and communications to be given to the Holders and all
payments to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee in the
case of a Global Security).  The rights
of beneficial owners in any Global Security shall be exercised only through the
Depositary subject to the applicable rules and procedures of the
Depositary.  The Trustee may rely and
shall be fully protected in relying upon information furnished by the
Depositary with respect to its members, participants and any beneficial owners.


 


(ii)           The Trustee
shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among Depositary participants, members
or beneficial owners in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.


 


2.4           Definitive
Securities


 


(a)           A Global
Security deposited with the Depositary or with the Trustee as Securities
Custodian pursuant to Section 2.1 shall be transferred to the beneficial
owners thereof in the form of Definitive Securities in an aggregate principal
amount equal to the principal amount of such Global Security, in exchange for
such Global Security, only if such transfer complies with Section 2.3 and (i) the
Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security or if at any time the Depositary ceases to
be a “clearing agency” registered under the Exchange Act, and a successor
depositary is not appointed by the Company within 60 days of such notice
or after the Company becomes aware of such cessation or (ii) an Event of
Default has occurred and is continuing.


 


6

















 


(b)           Any Global
Security that is transferable to the beneficial owners thereof pursuant to this
Section 2.4 shall be surrendered by the Depositary to the Trustee, to be
so transferred, in whole or from time to time in part, without charge, and the
Trustee shall authenticate and deliver, upon such transfer of each portion of
such Global Security, an equal aggregate principal amount of Definitive
Securities of authorized denominations. 
Any portion of a Global Security transferred pursuant to this Section shall
be executed, authenticated and delivered only in denominations of $1,000 and
any integral multiple thereof and registered in such names as the Depositary
shall direct.


 


(c)           Subject to the
provisions of Section 2.4(b), the registered Holder of a Global Security
may grant proxies and otherwise authorize any Person, including Agent Members
and Persons that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Securities.


 


(d)           In the event of
the occurrence of any of the events specified in Section 2.4(a)(i), (ii) or
(iii), the Company will promptly make available to the Trustee a reasonable
supply of Definitive Securities in fully registered form without interest
coupons.


 


7
















 


EXHIBIT A


 


[FORM OF SECURITY]


 


[Global Securities Legend]


 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.


 


United
Rentals, Inc.


 


4.00%
Convertible Senior Note due 2015


 


	
  No.

  	
   

  	
  $

  
	
   

  	
   

  	
  CUSIP NO.911363AL3

  



 


United
Rentals, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the “Company”, which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & CO., or registered assigns,
$                                   (                                  
DOLLARS) on November 15, 2015 and to pay
interest thereon from November 17, 2009 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on May 15 and November 15 in each year,
commencing May 15, 2010 at the rate of 4.00% per annum, until the principal
hereof is paid or duly provided for, provided, however,  that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
4.00% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid
or duly provided for.  The interest so
payable and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 1 and November 1 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such 


 

















 


Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of securities not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.


 


The
Company shall pay the principal of and interest on any Global Security in
immediately available funds to the Depositary or its nominee, as the case may
be, as the registered Holder of such Global Security.  The Company shall pay the principal of any
Definitive Security at the office or agency designated by the Company for that
purpose.  The Company has initially
designated the Trustee as its Paying Agent and Security Registrar in respect of
the Securities and its agency in New York, New York as a place where Securities
may be presented for payment or for registration of transfer.  The Company may, however, change the Paying
Agent or Security Registrar for the Securities without prior notice to the
Holders thereof and the Company may act as Paying Agent or Security Registrar
for the Securities.  Interest on any
Definitive Securities will be payable (i) to Holders of Definitive
Securities having an aggregate principal amount of Securities of $5,000,000 or
less, by check mailed to the Holders of such Securities as their address in the
Security Register and (ii) to Holders having an aggregate principal amount
of Definitive Securities in excess of $5,000,000, by either check mailed to
each Holder at its address in the Security Register or, upon application by a
Holder to the Registrar not later than the relevant Regular Record Date, by
wire transfer in immediately available funds to that Holder’s account within
the United States, which application shall remain in effect until that Holder
notifies, in writing, the Registrar to the contrary.


 


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


 


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


 


A-2

















 


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


 


	
   

  	
  UNITED RENTALS, INC.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


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


 


Dated:


 


THE
BANK OF NEW YORK MELLON, AS TRUSTEE


 


	
  By:

  
	
   

  	
  Authorized Signatory

  



 


A-3
















 


FORM OF REVERSE OF
SECURITY


 


This
Security is one of a duly authorized issue of Securities of the Company
designated as 4.00% Convertible Senior Notes due 2015 (herein called the “Securities”),
limited in aggregate principal amount on the Issue Date to $172,500,000 issued
and to be issued under an Indenture, dated as of November 17, 2009 (herein called
the “Indenture,” which term shall have the meaning assigned to it in such
instrument), among the Company and The Bank of New York Mellon, as Trustee
(herein called the “Trustee,” which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.  The Company shall be
entitled, subject to its compliance with the terms of the Indenture, to issue
Additional Securities pursuant to Section 3.13 of the Indenture.  The Securities include the Securities issued
on the Issue Date and any Additional Securities.  The Securities issued on the Issue Date and
any Additional Securities are treated as a single class of securities under the
Indenture.


 


The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. 7aaa-77bbbb (the “TIA”), as in effect on the date of the Indenture.  Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of such terms.


 


This
Security is not redeemable at the election of the Company prior to the Stated
Maturity.


 


Upon
the occurrence of a Fundamental Change, the Holder has the right, at such
Holder’s option, to require the Company to repurchase all of such Holder’s
Securities or any portion thereof (in principal amounts of $1,000 or integral
multiples thereof) on the Fundamental Change Purchase Date at a price equal to
the Fundamental Change Purchase Price.


 


As
provided in and subject to the provisions of the Indenture, the Holder hereof
has the right, at its option, during certain periods and upon the occurrence of
certain conditions specified in the Indenture, prior to the close of business
on the second Scheduled Trading Day immediately preceding November 15,
2015, to convert this Security or a portion thereof that is $1,000 or an
integral multiple thereof, into cash up to the aggregate principal amount of
the Securities to be converted and cash, shares of Common Stock or a
combination thereof, at the Company’s discretion, in respect of the remainder,
if any, at the applicable Conversion Rate specified in the Indenture, as
adjusted from time to time as provided in the Indenture.


 


As
provided in and subject to the provisions of the Indenture, the Company shall
deposit with the Paying Agent or Trustee, as applicable, in immediately
available funds money sufficient to pay the Fundamental Change Purchase Price
and the principal amount on the Stated Maturity thereof, as the case may be, to
the Holder who surrenders a Security to the Paying Agent to collect such
payments in respect of the Security.


 

















 


If
an Event of Default shall occur and be continuing, there may be declared due
and payable the principal of, premium, if any, and accrued and unpaid interest,
if any, on all of the outstanding Securities, in the manner and with the effect
provided in the Indenture.


 


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


 


As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities,
the Holders of not less than 25% in principal amount of the Securities at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity reasonably satisfactory to the Trustee and the Trustee shall
not have received from the Holders of a majority in principal amount of
Securities at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding for 45 days after
receipt of such notice, request and offer of indemnity.  The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.


 


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


 


As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in the Borough of Manhattan, The City of New York, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.


 


A-2

















 


This
Security is issuable only in registered form without coupons in denominations
of $1,000 and any integral multiple thereof. 
As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.


 


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


 


Prior
to due presentment of this Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.


 


Interest
on this Security shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.


 


All
terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.


 


The
Indenture and this Security shall be governed by the laws of the State of New
York, without regard to the principle of the conflicts of laws.


 


A-3

















 


ASSIGNMENT FORM


 


To
assign this Security, fill in the form below:


 


I
or we assign and transfer this Security to


 


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


 


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


 


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


 


 


	
  Date:

  	
  Your Signature:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Sign exactly as your name appears on the other side of this Security.

  



 


A-4

















 


TO
BE ATTACHED TO GLOBAL SECURITIES SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY


 


The
initial principal amount of this Global Security is $172,500,000.  The following increases or decreases in this
Global Security have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of decrease in

  Principal Amount of

  this Global Security

  	
   

  	
  Amount of increase in

  Principal Amount of this

  Global Security

  	
   

  	
  Principal amount of this

  Global Security

  following such decrease

  or increase

  	
   

  	
  Signature of authorized

  signatory of Trustee

  or Securities Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-5
















 


EXHIBIT B


 


[FORM OF NOTICE OF
CONVERSION]


 


To: United Rentals Inc.


 


The undersigned registered Holder of this Security hereby irrevocably
exercises the option to convert this Security, or a portion hereof (which is
$1,000 or an integral multiple hereof) below designated, into cash up to the
aggregate principal amount of the Securities to be converted and cash, shares
of Common Stock or a combination thereof, at the Company’s discretion, in
respect of the remainder, if any, in accordance with the terms of the Indenture
referred to in this Security, and directs that cash payable and any shares of
Common Stock issuable and deliverable upon conversion, together with any check
in payment for fractional shares of Common Stock, and any Securities
representing any unconverted principal amount hereof, be paid or issued and
delivered, as the case may be, to the registered Holder hereof unless a
different name has been indicated below. Subject to certain exceptions set
forth in the Indenture, if this notice is being delivered on a date after the
close of business on a Regular Record Date and prior to the opening of business
on the related Interest Payment Date, this notice is accompanied by payment of
an amount equal to the interest payable on such Interest Payment Date of the
principal of this Security to be converted. If any shares of Common Stock or
any portion of this Security not converted are to be issued in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect hereto. Any amount required to be paid by the undersigned
on account of interest accompanies this Security.


 


Principal amount to be converted (in an integral multiple of $1,000, if
less than all):


 


 


	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must be
  guaranteed by an institution which is a member of one of the following
  recognized signature Guarantee Programs:

  
	
   

  	
   

  
	
   

  	
  (i) The Securities
  Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
  Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
  Program (SEMP) or (iv) another guarantee program acceptable to the
  Trustee.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee

  



 

















 


Fill in for registration of
any shares of Common Stock and Securities if to be issued otherwise than to the
registered Holder.


 


 


	
  (Name)

  
	
   

  
	
   

  
	
  (Address)

  
	
   

  
	
  Please print Name and
  Address

  (including zip code number)

  
	
   

  
	
  Social Security or other
  Taxpayer

  Identifying Number

  



 


B-2
















 


EXHIBIT C


 


[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]


 


To: United Rentals Inc.


 


The undersigned registered owner of this Security hereby acknowledges
receipt of a notice from United Rentals Inc. (the “Company”) as to the
occurrence of a Fundamental Change with respect to the Company and specifying
the Fundamental Change Purchase Date and requests and instructs the Company to
repay to the registered holder hereof in accordance with the applicable
provisions of this Security and the Indenture referred to in this Security (1) the
entire principal amount of this Security, or the portion thereof (that is
$1,000 principal amount or an integral multiple thereof) below designated, and (2) if
such Fundamental Change Purchase Date does not fall during the period after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
accrued and unpaid interest thereon to, but excluding, such Fundamental Change
Purchase Date.


 


In the case of certificated Securities, the certificate numbers of the
Securities to be repurchased are as set forth below:


 


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Social Security or Other
  Taxpayer Identification Number

  
	
   

  	
   

  
	
   

  	
  Principal amount to be
  repaid (if less than all): 

  
	
   

  	
  $                    ,
  000

  
	
   

  	
   

  
	
   

  	
  NOTICE: The signature on the
  Fundamental Change Purchase Notice must correspond with the name as written
  upon the face of the Security in every particular without alteration or
  enlargement or any change whatever.