Exhibit 4.1


 


EXECUTION COPY


 


BEST
BUY CO., INC.,


 


and


 


WELLS
FARGO BANK, N.A.,

as Trustee


 


Indenture


 


Dated as of June 24, 2008


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Certain Terms Defined

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions.

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
   

  
	
  SECURITY FORMS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Forms Generally

  	
  9

  
	
  Section 2.02.

  	
  Form of Trustee’s Certificate of Authentication

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
   

  
	
  ISSUE, EXECUTION, FORM
  AND REGISTRATION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Amount Unlimited; Issuable in Series

  	
  10

  
	
  Section 3.02.

  	
  Authentication and Delivery of Securities

  	
  13

  
	
  Section 3.03.

  	
  Execution of Securities

  	
  13

  
	
  Section 3.04.

  	
  Certificate of Authentication

  	
  13

  
	
  Section 3.05.

  	
  Denomination and Date of Securities; Payments of
  Interest

  	
  13

  
	
  Section 3.06.

  	
  Global Security Legend

  	
  15

  
	
  Section 3.07.

  	
  Registration, Transfer and Exchange

  	
  16

  
	
  Section 3.08.

  	
  Book-Entry Provisions for Global Securities

  	
  17

  
	
  Section 3.09.

  	
  Mutilated, Defaced, Destroyed, Lost and Stolen
  Securities

  	
  19

  
	
  Section 3.10.

  	
  Cancellation of Securities

  	
  20

  
	
  Section 3.11.

  	
  Temporary Securities

  	
  20

  
	
  Section 3.12.

  	
  CUSIP and ISIN Numbers

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
   

  
	
  CERTAIN COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payments in Respect of Securities

  	
  21

  
	
  Section 4.02.

  	
  Limitation on Liens

  	
  21

  
	
  Section 4.03.

  	
  Limitation on Sale and Leaseback Transactions

  	
  22

  
	
  Section 4.04.

  	
  Limitation on Incurrence of Indebtedness by North
  American Subsidiaries

  	
  23

  
	
  Section 4.05.

  	
  Maintenance of Office or Agency

  	
  24

  
	
  Section 4.06.

  	
  Money for Securities Payments to Be Held in Trust

  	
  25

  
	
  Section 4.07.

  	
  Existence

  	
  26

  
	
  Section 4.08.

  	
  Compliance Certificate

  	
  26

  
	
  Section 4.09.

  	
  Waiver of Certain Covenants

  	
  27

  



 


i

















 


	
  ARTICLE
  5

  	
   

  
	
  REMEDIES OF THE TRUSTEE
  AND HOLDERS ON EVENT OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Events of Default

  	
  27

  
	
  Section 5.02.

  	
  Acceleration

  	
  28

  
	
  Section 5.03.

  	
  Other Remedies

  	
  29

  
	
  Section 5.04.

  	
  Waiver of Past Defaults

  	
  29

  
	
  Section 5.05.

  	
  Control by Majority

  	
  30

  
	
  Section 5.06.

  	
  Limitation on Suits

  	
  30

  
	
  Section 5.07.

  	
  Rights of Holders to Receive Payment

  	
  31

  
	
  Section 5.08.

  	
  Collection Suit by Trustee

  	
  31

  
	
  Section 5.09.

  	
  Trustee May File Proofs of Claim

  	
  31

  
	
  Section 5.10.

  	
  Priorities

  	
  32

  
	
  Section 5.11.

  	
  Undertaking for Costs

  	
  32

  
	
  Section 5.12.

  	
  Restoration of Rights and Remedies

  	
  33

  
	
  Section 5.13.

  	
  Rights and Remedies Cumulative

  	
  33

  
	
  Section 5.14.

  	
  Delay or Omission Not Waiver

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
   

  
	
  CONCERNING THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Duties and Responsibilities of the Trustee; During
  Default: Prior to Default

  	
  33

  
	
  Section 6.02.

  	
  Certain Rights of the Trustee

  	
  34

  
	
  Section 6.03.

  	
  Trustee Not Responsible for Recitals, Disposition of
  Securities or Application of Proceeds Thereof

  	
  36

  
	
  Section 6.04.

  	
  Trustee and Agents May Hold Securities; Collections,
  Etc

  	
  37

  
	
  Section 6.05.

  	
  Moneys Held by Trustee

  	
  37

  
	
  Section 6.06.

  	
  Notice of Default

  	
  37

  
	
  Section 6.07.

  	
  Compensation and Indemnification of Trustee and Its
  Prior Claim

  	
  37

  
	
  Section 6.08.

  	
  Right of Trustee to Rely on Officer’s Certificate,
  Etc

  	
  38

  
	
  Section 6.09.

  	
  Persons Eligible for Appointment as Trustee

  	
  38

  
	
  Section 6.10.

  	
  Resignation and Removal; Appointment of Successor
  Trustee

  	
  39

  
	
  Section 6.11.

  	
  Acceptance of Appointment by Successor

  	
  40

  
	
  Section 6.12.

  	
  Merger, Conversion, Consolidation or Succession to
  Business of Trustee

  	
  41

  
	
  Section 6.13.

  	
  Preferential Collection of Claims

  	
  42

  
	
  Section 6.14.

  	
  Communications with the Trustee

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
   

  
	
  CONCERNING THE HOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Evidence of Action Taken by Holders

  	
  43

  
	
  Section 7.02.

  	
  Proof of Execution of Instruments and of Holding of
  Securities; Record Date

  	
  43

  
	
  Section 7.03.

  	
  Who May Be Deemed Owners of Securities

  	
  43

  



 


ii

















 


	
  Section 7.04.

  	
  Securities Owned by Company Deemed Not Outstanding

  	
  44

  
	
  Section 7.05.

  	
  Record Date for Action by Securityholders

  	
  44

  
	
  Section 7.06.

  	
  Right of Revocation of Action Taken

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  	
   

  
	
  AMENDMENTS, SUPPLEMENTS
  AND WAIVERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Modifications and Amendments With Consent of Holders

  	
  45

  
	
  Section 8.02.

  	
  Amendments to or Supplemental Indentures Without
  Consent of Holders

  	
  47

  
	
  Section 8.03.

  	
  Effect of Supplemental Indenture

  	
  48

  
	
  Section 8.04.

  	
  Documents to Be Given to Trustee; Compliance with
  the Trust Indenture Act

  	
  48

  
	
  Section 8.05.

  	
  Notation on Securities in Respect of Supplemental
  Indentures

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9

  	
   

  
	
  MERGER, CONSOLIDATION
  OR SALE OR CONVEYANCE OF ASSETS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  When the Company May Merge, Etc

  	
  48

  
	
  Section 9.02.

  	
  Successor Person Substituted

  	
  49

  
	
  Section 9.03.

  	
  Opinion of Counsel to Trustee

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  	
   

  
	
  REDEMPTION OF
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Applicability of Article

  	
  50

  
	
  Section 10.02.

  	
  Notice of Redemption; Partial Redemptions

  	
  50

  
	
  Section 10.03.

  	
  Payment of Securities Called for Redemption

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  	
   

  
	
  DEFEASANCE AND COVENANT
  DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Applicability of the Article; Company’s Option to
  Effect Defeasance or Covenant Defeasance

  	
  52

  
	
  Section 11.02.

  	
  Full Defeasance and Discharge

  	
  52

  
	
  Section 11.03.

  	
  Covenant Defeasance

  	
  53

  
	
  Section 11.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
  53

  
	
  Section 11.05.

  	
  Deposited Money and Government Securities to Be Held
  in Trust; Other Miscellaneous Provisions

  	
  55

  
	
  Section 11.06.

  	
  Repayment to the Company

  	
  55

  
	
  Section 11.07.

  	
  Reinstatement

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  	
   

  
	
  SATISFACTION AND
  DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Satisfaction and Discharge of Indenture

  	
  56

  
	
  Section 12.02.

  	
  Application of Trust Money

  	
  57

  



 


iii

















 


	
  ARTICLE
  13

  	
   

  
	
  HOLDERS’ LISTS AND
  REPORTS BY TRUSTEE AND COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Company to Furnish Trustee Names and Addresses of
  Holders

  	
  57

  
	
  Section 13.02.

  	
  Preservation of Information; Communications to Holders

  	
  58

  
	
  Section 13.03.

  	
  Reports by the Trustee

  	
  59

  
	
  Section 13.04.

  	
  Reports by the Company

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  14

  	
   

  
	
  MISCELLANEOUS
  PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Incorporators, Stockholders, Officers and Directors
  of Company Exempt from Individual Liability

  	
  60

  
	
  Section 14.02.

  	
  Provisions of Indenture for the Sole Benefit of
  Parties and Holders

  	
  60

  
	
  Section 14.03.

  	
  Successors and Assigns of Company Bound by Indenture

  	
  61

  
	
  Section 14.04.

  	
  Notices to Holders

  	
  61

  
	
  Section 14.05.

  	
  Officers, Certificates and Opinions of Counsel;
  Statements to Be Contained Therein

  	
  61

  
	
  Section 14.06.

  	
  Payments Due on Saturdays, Sundays and Holidays

  	
  62

  
	
  Section 14.07.

  	
  Conflict of Any Provision of Indenture with Trust
  Indenture Act

  	
  62

  
	
  Section 14.08.

  	
  Governing Law

  	
  62

  
	
  Section 14.09.

  	
  Third Party Beneficiaries

  	
  62

  
	
  Section 14.10.

  	
  Counterparts

  	
  63

  
	
  Section 14.11.

  	
  Effect of Headings

  	
  63

  
	
  Section 14.12.

  	
  Severability

  	
  63

  
	
  Section 14.13.

  	
  Patriot Act Compliance

  	
  63

  



 


iv

















 


BEST BUY CO., INC.



Reconciliation and tie between Trust Indenture Act of 1939

and this Indenture


 


	
  Trust Indenture Act

  Section

  	
   

  	
  Indenture

  Section

  
	
  §310

  	
  (a)(l)

  	
   

  	
  6.09

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(5)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  6.10

  
	
  §311

  	
  (a)

  	
   

  	
  6.13

  
	
   

  	
  (b)

  	
   

  	
  6.13

  
	
   

  	
  (b)(2)

  	
   

  	
  13.03(a),
  13.03(b)

  
	
  §312

  	
  (a)

  	
   

  	
  13.01, 13.02(a)

  
	
   

  	
  (b)

  	
   

  	
  13.02(b)

  
	
   

  	
  (c)

  	
   

  	
  13.02(c)

  
	
  §313

  	
  (a)

  	
   

  	
  13.03(a)

  
	
   

  	
  (b)

  	
   

  	
  13.03(a)

  
	
   

  	
  (c)

  	
   

  	
  13.03(a),13.03(b)

  
	
   

  	
  (d)

  	
   

  	
  13.03(b)

  
	
  §314

  	
  (a)

  	
   

  	
  13.04

  
	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
  (c)(l)

  	
   

  	
  14.05

  
	
   

  	
  (c)(2)

  	
   

  	
  14.05

  
	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
  14.05

  
	
  §315

  	
  (a)

  	
   

  	
  6.01

  
	
   

  	
  (b)

  	
   

  	
  6.06, 13.03(a)

  
	
   

  	
  (c)

  	
   

  	
  6.01

  
	
   

  	
  (d)

  	
   

  	
  6.01

  
	
   

  	
  (d)(1)

  	
   

  	
  6.01

  
	
   

  	
  (d)(2)

  	
   

  	
  6.01

  
	
   

  	
  (d)(3)

  	
   

  	
  6.01

  
	
   

  	
  (e)

  	
   

  	
  5.11

  
	
  §316

  	
  (a)(1)(A)

  	
   

  	
  5.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.02, 5.04

  
	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
  5.07

  
	
   

  	
  (c)

  	
   

  	
  7.02

  
	
  §317

  	
  (a)(l)

  	
   

  	
  5.08

  
	
   

  	
  (a)(2)

  	
   

  	
  5.09

  
	
   

  	
  (b)

  	
   

  	
  4.06

  
	
  §318

  	
  (a)

  	
   

  	
  14.07

  



 


*
This cross-reference table shall not, for any purpose, be deemed to be part of
this Indenture.


 


v

















 


INDENTURE, dated as of June 24, 2008, between
Best Buy Co., Inc., a Minnesota corporation (the “Company”),
and Wells Fargo Bank, N.A., as Trustee (the “Trustee”).


 


RECITALS OF THE COMPANY


 


WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
senior unsecured debentures, notes or other evidences of indebtedness (herein
called the “Securities”), to be issued in one
or more series as in this Indenture provided; and


 


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


 


NOW, THEREFORE:


 


In consideration of the premises stated herein and
the purchase of the Securities by the Holders thereof, the Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective Holders from time to time of the Securities as follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.01.  Certain Terms Defined.  The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01.  All other terms used in this Indenture which
are defined in the Trust Indenture Act or the definitions of which in the
Securities Act are referred to in the Trust Indenture Act (except as herein
otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in the Trust Indenture Act and
in the Securities Act as in force at the date of this Indenture.  All accounting terms used herein and not
expressly defined shall have the meanings given to them in accordance with GAAP
(whether or not such is indicated herein). 
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.  The terms defined in this Article 1
include the plural as well as the singular.


 


“Additional Interest”
means additional interest, if any, payable by the Company pursuant to an
indenture supplemental hereto.


 


1

















 


“Attributable Value”
means, as to any lease under which any Person is at the time liable, other than
a Capital Lease Obligation, and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining term thereof as determined in
accordance with GAAP, discounted from the last date of such term to the date of
determination at a rate per annum equal to the discount rate that would be
applicable to a Capital Lease Obligation with like term in accordance with
GAAP.  The net amount of rent required to
be paid under any such lease for any such period will be the aggregate amount
of rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of insurance, taxes, assessments,
utility, operating and labor costs and similar charges.  In the case of any lease that is terminable
by the lessee upon the payment of a penalty, such net amount will also include
the amount of such penalty, but no rent will be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated.


 


“Attributable
Value” means, as to a Capital Lease Obligation under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the capitalized amount thereof that would appear on the face
of a balance sheet of such Person in accordance with GAAP.


 


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


 


“Board of Directors”
means, with respect to any Person, the Board of Directors of such Person, or
any authorized committee of the Board of Directors of such Person or any
officer of such Person duly authorized by the Board of Directors of such Person
to take a specific action.


 


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


 


“Business Day”
means any day other than a Saturday or a Sunday, that is neither a legal
holiday nor a day on which banking institutions are authorized or required by
law or regulation to close in New York City.


 


“Capital Lease Obligations”
means, with respect to any Person, the obligations of such Person to pay rent
or other amounts under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP,


 


2

















 


and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.


 


“Certificated Securities”
means Securities issued pursuant to Section 3.01 in exchange for an
interest in the Global Security or pursuant to Section 3.08(b) in
registered form substantially in the form recited in Section 3.01.


 


“Commission”
means the Securities and Exchange Commission, or its successor agency or body.


 


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


 


“Company Request”
or “Company Order” means a written request
or order signed in the name of the Company by any Authorized Officer and
delivered to the Trustee.


 


“Consolidated
Capitalization” means the total of all assets appearing on the consolidated
balance sheet of the Company and its Subsidiaries, less: (A) current
liabilities and (B) deferred income tax liabilities.


 


“Consolidated Net Tangible
Assets” means the total of all assets appearing on the consolidated
balance sheet of the Company and its Subsidiaries, less: (A) current
liabilities; (B) intangible assets, including without limitation, such
items as goodwill, trademarks, trade names, patents and unamortized debt
discount and expense carried as an asset on such balance sheet; and (C) appropriate
adjustments on account of minority interests of other Persons holding capital
stock in any of the Company’s Subsidiaries.


 


“Corporate Trust Office”
means the corporate trust office of the Trustee at which the corporate trust
business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date as of which this Indenture is dated,
located at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota, 55402, or
such address as the Trustee may designate from time to time by notice to the
Holders (with a copy to the Company).


 


“Default” means
any event that is or with the passage of time or the giving of notice or both
would, unless cured or waived, be an Event of Default.


 


“Depositary”
means The Depository Trust Company, its nominees, and their respective
successors.


 


“Event of Default”
means any event or condition specified as such in Section 5.01 which shall
have continued for the period of time, if any, therein designated.


 


3

















 


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


 


“GAAP” means
accounting principles generally accepted in the United States.


 


“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of
America, and the payment for which the United States pledges its full faith and
credit.


 


“Guarantee”
means, with respect to any Person, any obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly, and
includes any obligation of such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or advance or supply funds for the purchase of) any security for the
payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the holder of such Indebtedness of the
payment of such Indebtedness, or (c) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness; provided,
however, that a Guarantee by any Person will not include endorsements by such
Person for collection or deposit, in either case in the ordinary course of
business.


 


“Holder,” “Holder of Securities,” “Securityholder”
or other similar terms mean the registered holder of any Security.


 


“Indebtedness”
means, with respect to any Person at any time of determination, without
duplication, the amount which in conformity with GAAP should then be shown on
the balance sheet of such Person as a liability in respect of (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid or
accrued by such Person, (d) all obligations of such Person for the
deferred purchase price of property not constituting a current liability, (e) all
Capital Lease Obligations of such Person, (f) net obligations of such
Person in respect of interest rate protection agreements, (g) all
obligations of such Person, actual or contingent, as an account party in respect
of letters of credit or bankers’ acceptances, (h) all guarantees by such
Person of Indebtedness of others and (i) all Indebtedness of others
secured by any Lien on property owned by such Person, whether or not the
Indebtedness secured thereby has been assumed.


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, for any series of Securities
established as contemplated hereunder, shall include the terms of such series
of Securities set forth in any such supplemental indenture.


 


4

















 


“Initial Purchasers”
means the initial purchasers of any series of Securities.


 


“Interest Payment Date”
means, with respect to any Security, the Stated Maturity of an installment of
interest on such Security.


 


“Lien” means any
mortgage, pledge, lien, encumbrance, charge or security interest of any kind,
but excluding pledges or deposits under worker’s compensation, unemployment
insurance or similar statutes, mechanics’, workmen’s or other similar liens
arising in the ordinary course of business or deposits or pledges to obtain the
release of any such liens, certain liens for taxes, assessments or governmental
charges or levies, landlord’s liens on property held under lease, easements and
other liens or encumbrances similar to the foregoing.


 


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


 


“Moody’s”
means Moody’s Investors Service, Inc., or any successor thereto.


 


“Net Available Proceeds”
means, with respect to any Sale Transaction by any Person, cash or readily
marketable cash equivalents received (including by way of sale or discounting
of a note, installment receivable or other receivable, but excluding any
consideration received in the form of assumption of Indebtedness or other
obligations by others or received in any other non-cash form) therefrom by such
Person, net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability as a
consequence of such Sale Transaction, (ii) all payments made by such
Person or its Subsidiaries on any Indebtedness that is secured by a Lien on the
property or assets so disposed of in accordance with the terms of such Lien or
that must, by the terms of such Lien, or in order to obtain a necessary consent
to such Sale Transaction, or by applicable law, be repaid out of the proceeds
from such Sale Transaction, and (iii) all distributions and other payments
made to third parties (other than Subsidiaries of the Person making the
distribution or other payment) in respect of minority or joint venture
interests as a result of such Sale Transaction.


 


“North American Subsidiary”
means a Subsidiary formed under the laws of, or conducting its principal
operations within (1) the United States, any State thereof or the District
of Columbia or (2) Canada or any Province or territory thereof.


 


“Officer’s Certificate”
means a certificate signed by the Chairman of the Board, the President, a Vice
President, the Chief Financial Officer, the Controller,


 


5

















 


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


 


“Opinion of Counsel”
means an opinion in writing signed by legal counsel who may be an employee of
or counsel to the Company which opinion shall be reasonably satisfactory to the
Trustee.


 


“outstanding”
means, when used with reference to Securities, subject to the provisions of Article 7,
as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except:


 


(a)                                  Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;


 


(b)                                 Securities, or
portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited by the Company with the Trustee and
held in a non-interest bearing trust account for the Holders, or if a party
other than the Trustee or the Company is acting as Paying Agent, deposited with
such other party, and held in trust for Holders; provided
that if such Securities or portions thereof are to be redeemed prior to the
Maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to a Responsible Officer of the Trustee
shall have been made for giving such notice;


 


(c)                                  Securities in
substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of Section 3.09
(unless proof satisfactory to the Trustee and the Company is presented that any
of such Securities is held by a Person in whose hands such Security is a legal,
valid and binding obligation of the Company); and


 


(d)                                 Securities that
have been defeased pursuant to Section 11.01.


 


“Paying Agent”
means any Person authorized by the Company to pay the principal of and premium,
if any, and interest, if any, on any Securities on behalf of the Company.  The Trustee will act as initial Paying
Agent.  The Company may appoint itself to
act as Paying Agent with respect to any Securities issued hereunder.


 


6

















 


“Payment Office”
means, with respect to the Securities of any series, the place or places where
the principal of (and premium, if any) and interest on such Securities are
payable as specified as contemplated by Sections 3.01 and 4.01.


 


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


 


“Principal Amount”
means, with respect to any Security, the amount of principal of such Security
that could then be declared due and payable pursuant to Section 5.02.


 


“Principal Property”
means any real property or any permanent improvement thereon owned by the
Company or any North American Subsidiary, including, without limitation, any
store, warehouse or distribution center, that has a net book value (after
deduction of accumulated depreciation) in excess of 0.50% of Consolidated Net
Tangible Assets.


 


“Regular Record Date”
means, with respect to the interest payable on any Interest Payment Date on the
Securities of any series, the date specified for that purpose as contemplated
by Section 3.01.


 


“Responsible Officer”
means, with respect to the Trustee, any officer within the Corporate Trust Office
of the Trustee including any vice president, any trust officer, 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 the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.


 


“Sale and Leaseback
Transaction” means any arrangement with any Person providing for the
leasing to the Company or any Subsidiary of any Principal Property (except for
temporary leases for a term, including any renewal thereof, of not more than
three years and except for leases between the Company and a Subsidiary or
between Subsidiaries), which Principal Property has been or is to be sold or
transferred by the Company or such Subsidiary to such Person.


 


“Sale Transaction”
means any sale, conveyance, transfer or other disposition of the kind referred
to in the first sentence of the definition of “Sale and Leaseback Transaction”.


 


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


 


“Security” or “Securities” means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture.


 


7

















 


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


 


“Subsidiary”
means, with respect to any Person, any corporation, partnership, joint venture,
limited liability company, association or other business entity of which more
than 50% of the outstanding Voting Stock (or equivalent equity interest) is
owned, directly or indirectly, by such Person or one or more Subsidiaries of
such Person (or a combination thereof). Unless otherwise specified, the term
“Subsidiary” means a direct or indirect Subsidiary of the Company.


 


“S&P”
means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc., or any successor thereto.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in force at the date as
of which this Indenture was executed and delivered; provided,
however, that in the event the Trust Indenture Act is amended after
such date, “Trust Indenture Act” shall mean, to the extent required by any such
amendment, the Trust Indenture Act 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 or include
each Person who is then a Trustee hereunder; provided,
however, that if at any time there is
more than one such Person, “Trustee” means, with respect to the Securities of
any series, only the Trustee with respect to Securities of that series.


 


“Value” means,
with respect to a Sale and Leaseback Transaction, as of any particular time,
the amount equal to the greater of (1) the net proceeds from the sale or
transfer of the property leased pursuant to such Sale and Leaseback Transaction
and (2) the sum of all costs of the Company or any Subsidiary incurred in
connection with the acquisition of such property and the construction of any
improvements thereon, as determined in good faith by the Company or such
Subsidiary at the time of entering into such Sale and Leaseback Transaction, in
either case multiplied by a fraction, the numerator of which shall be equal to
the number of full years of the term of the lease that is part of such Sale and
Leaseback Transaction remaining at the time of determination and the
denominator of which shall be equal to the number of full years of such term,
without regard to any renewal or extension options contained in the lease.


 


“Voting Stock”
means, with respect to any specified “person” (as that term is used in Section 13(d) of
the Exchange Act) as of any date, the capital stock of such person that is at
the time entitled to vote generally in the election of the board of directors
of such person.


 


8

















 


“Wholly Owned Subsidiary”
means, with respect to any Person, any corporation, partnership, limited
liability company, joint venture, trust or other entity as to which 100% of the
voting power of its outstanding capital stock or other ownership interests is
owned, directly or indirectly, by such Person, by one or more other Wholly
Owned Subsidiaries of such Person or by such Person and one or more other
Wholly Owned Subsidiaries of such Person. 
Unless otherwise indicated, any reference to a Wholly Owned Subsidiary
means a Wholly Owned Subsidiary of the Company.


 


Section 1.02.  Other Definitions.


 


	
   

  	
   

  	
  Defined in Section

  
	
  “Agent
  Members”

  	
   

  	
  3.08

  	
  (a)

  
	
  “Covenant
  Defeasance”

  	
   

  	
  11.03

  	
   

  
	
  “Full
  Defeasance”

  	
   

  	
  11.02

  	
   

  
	
  “Global
  Security”

  	
   

  	
  3.05

  	
  (b)

  
	
  “Notice
  of Default”

  	
   

  	
  6.06

  	
   

  
	
  “Registrar”

  	
   

  	
  3.07

  	
   

  
	
  “Security
  Register”

  	
   

  	
  3.07

  	
   

  



 


ARTICLE 2

SECURITY FORMS


 


Section 2.01.  Forms Generally.  The Securities shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities.  If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.02
for the authentication and delivery of such Securities.


 


The Trustee’s certificate of authentication on all
Securities shall be in substantially the form set forth in this Article 2.


 


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


 


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


 


9

















 


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


 


	
   

  	
  Wells
  Fargo Bank, N.A., as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


ARTICLE 3

ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES


 


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


 


The Securities may be issued from time to time in
one or more series. Prior to the issuance of Securities of any series, there
shall be established in or pursuant to (i) one or more Board Resolutions, (ii) action
taken pursuant to a Board Resolution and (subject to Sections 3.03 and 3.04)
set forth, or determined in the manner provided, in an Officer’s Certificate or
(iii) one or more indentures supplemental hereto:


 


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


 


(b)                   the purchase price, denomination and any
limit upon the aggregate Principal Amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Sections 3.07,
3.09, 8.05 or 10.02);


 


(c)                    the date or dates on which
the principal of and premium, if any, on the Securities of the series is
payable or the method of determination thereof, any rights the Company might
have to extend the Maturity of the Securities of the series and any rights of
the holders of the Securities to require payment of the Securities at any time;


 


(d)                   the rate or rates at which the Securities of
the series shall bear interest, if any, or the method of calculating such rate
or rates of interest, the date or dates from which such interest shall accrue,
if any, or the method by which such date or dates shall be determined, if any,
the Interest Payment Dates on which any such interest shall be payable, if any,
and the Regular Record Dates, if any, for the interest payable on any Interest
Payment Date;


 


10
















 


(e)                    the place or places where
the principal of and premium, if any, and interest, if any, on Securities of
the series shall be payable;


 


(f)                      the place or places where
the Securities may be exchanged or transferred;


 


(g)                   the period or periods within which, the price
or prices at which, the currency or currencies (including currency unit or
units) in which, and the other terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the Company,
if the Company is to have that option, and, if other than as provided in Section 10.02,
the manner in which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;


 


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


 


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


 


(j)                       if other than U.S. dollars,
the currency or currencies (including currency unit or units) in which payments
of principal of and premium, if any, and interest, if any, on the Securities of
the series shall or may by payable, or in which the Securities of the series
shall be denominated, and the particular provisions applicable thereto;


 


(k)                    if the payments of principal
of and premium, if any, and interest, if any, on the Securities of the series
are to be made, at the election of the Company or a Securityholder, in a
currency or currencies (including currency unit or units) other than that in
which such Securities are denominated or designated to be payable, the currency
or currencies (including currency unit or units) in which such payments are to
be made, the terms and conditions of such payments and the manner in which the
exchange rate with respect to such payments shall be determined, and the
particular provisions applicable thereto;


 


(l)                       if the amount of payments of
principal of and premium, if any, and interest, if any, on the Securities of
the series shall be determined with reference to an index, formula or other
method (which index, formula or method may be based, without limitation, on a
currency or currencies


 


11

















 


(including currency unit or units) other than that in which the
Securities of the series are denominated or designated to be payable), the
index, formula or other method by which such amounts shall be determined;


 


(m)                 if other than the Principal Amount thereof,
the portion of the Principal Amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02
or the method by which such portion shall be determined;


 


(n)                   any modifications of or additions to the
Events of Default or the covenants of the Company set forth herein with respect
to Securities of the series;


 


(o)                   if either or both of Section 11.02 and Section 11.03
shall be inapplicable to the Securities of the series (provided that if no such
inapplicability shall be specified, then both Section 11.02 and Section 11.03
shall be applicable to the Securities of the series);


 


(p)                   if other than the Trustee, the identity of
the Registrar and any Paying Agent;


 


(q)                   if the Securities of the series shall be
issued in whole or in part in global form, (i) the Depositary for such
global Securities, (ii) the form of any legend in addition to or in lieu
of that in Section 3.06 which shall be borne by such global Security, (iii) whether
beneficial owners of interests in any Securities of the series in global form
may exchange such interests for Certificated Securities of such series and of
like tenor of any authorized form and denomination and (iv) if other than
as provided in Section 3.07, the circumstances under which any such
exchange may occur; and


 


(r)                      any other terms of the
series (which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 8.02, but which may modify or
delete any provision of this Indenture insofar as it applies to such series),
including any terms which may be required by or advisable under the laws of the
United States of America or regulations thereunder or advisable (as determined
by the Company) in connection with the marketing of Securities of the series.


 


All Securities of any one
series shall be substantially identical except as to denomination and except as
may otherwise be provided (i) by one or more Board Resolutions, (ii) by
action taken pursuant to a Board Resolution and (subject to Sections 3.02
through 3.05) set forth, or determined in the manner provided, in an Officer’s
Certificate or (iii) in any indenture supplemental hereto.  All Securities of any series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.


 


12

















 


If any of the terms of the
Securities of any series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officer’s Certificate setting forth,
or providing the manner for determining, the terms of the Securities of such
series, and an appropriate record of any action taken pursuant thereto in
connection with the issuance of any Securities of such series shall be
delivered to the Trustee prior to the authentication and delivery thereof.


 


Section 3.02.  Authentication and Delivery of
Securities.  Upon the
execution and delivery of this Indenture, or from time to time thereafter,
Securities may be executed on behalf of the Company by any Authorized Officer
and delivered to the Trustee for authentication, and upon delivery to the
Trustee of all documents and certificates as required by this Indenture, the
Trustee shall thereupon authenticate and make available for delivery such
Securities to or upon a Company Order without any further action by the
Company.


 


Section 3.03.  Execution of Securities.  The Securities shall be signed on
behalf of the Company by its Chairman of the Board of Directors or any Vice
Chairman of the Board of Directors or its President or any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the title “Vice President”) or its Treasurer.  Signatures may be the manual or facsimile
signatures of the present or any future such officers.  In case any officer of the Company who shall
have signed any Security shall cease to be such officer before the Security so
signed shall be authenticated and delivered by the Trustee or disposed of by
the Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Company, as the case may be; and any Security may be signed
on behalf of the Company by such persons as, at the actual date of the
execution of such Security shall be the proper officers of the Company, as the
case may be, although at the date of the execution and delivery of this
Indenture any such person was not such officer.


 


Section 3.04.  Certificate of
Authentication.  Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinabove recited, executed by the Trustee by manual signature of
one of its authorized signatories, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee upon any
Security executed by the Company shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the Holder is entitled to the benefits of this Indenture.


 


Section 3.05.  Denomination and Date of
Securities;  Payments of Interest.  (a) The Securities shall be issuable
in such denominations as shall be specified as contemplated by Section 3.01.  In the absence of any such provisions with
respect to the Securities, the Securities shall be issuable in denominations of
$1,000 and any integral multiples thereof, 
The Securities shall be numbered, lettered, or


 


13

















 


otherwise distinguished in
such manner or in accordance with such plans as the officers of the Company
executing the same may determine with the approval of the Trustee.


 


Any of the Securities may be
issued with appropriate insertions, omissions, substitutions and variations,
and may have imprinted or otherwise reproduced thereon such legend or legends,
not inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto,
including those required by Section 3.06, or with the rules of any
securities market in which the Securities are admitted to trading, or to
conform to general usage.


 


Each Security shall be dated
the date of its authentication, shall bear interest from the applicable date
and shall be payable on the dates specified on the face of the Security.  Except as otherwise specified pursuant to Section 3.01
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.


 


(b)                                 If Securities
of any series are issuable in whole or in part in global form (“Global Securities”), then the Global Securities of such
series shall be deposited with the Trustee as custodian for the Depositary and
registered in the name of Cede & Co., as nominee for the
Depositary.  Global Securities shall be
deposited on behalf of the purchasers of the Securities represented thereby
with the Trustee, as custodian for the Depositary (or with such other custodian
as the Depositary may direct), 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 previously provided.  The
aggregate Principal Amount of the 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 as hereinafter provided.  Each such Global Security shall constitute a
single security for all purposes under this Indenture.


 


(c)                                  The person in
whose name any Security is registered at the close of business on any Regular
Record Date with respect to any Interest Payment Date, with respect to such Security,
shall be entitled to receive the interest, if any, payable on such Interest
Payment Date notwithstanding any transfer or exchange of such Security
subsequent to the Regular Record Date and prior to such Interest Payment Date,
except that, if and to the extent the Company defaults in the payment of any
interest due on such Interest Payment Date and the applicable grace period
shall have expired with respect to such Security, in which case such defaulted
interest may, at the option of the Company, be paid to the Persons in whose
names outstanding Securities are registered at the close of business on a
subsequent record date (which shall be not less than 10 days prior to the date
of payment of such defaulted interest) established by notice given by mail by
or on behalf of the Company to the Holders of Securities not less than 15 days
preceding such subsequent record date.


 


14

















 


(d)                                 Whenever the
Company shall act as sole Paying Agent for any series of Securities, it shall (i) make
all payments in respect of any Global Security (including principal and
interest, if any) by wire transfer of immediately available funds to the
account or accounts specified by the Holder of the Global Security and (ii) make
all payments of principal and interest, if any, with respect to any
Certificated Securities by wire transfer of immediately available funds to the
account or accounts specified by the Holders of the Certificated Securities or,
if no such account is specified, or if the Company so elects, by mailing a
check to each such Holder’s registered address.


 


Whenever the Company shall
act as one of more than one Paying Agents for any series of Securities, the
provisions of Section 4.06(b) shall apply.


 


Section 3.06.  Global Security Legend.  Any Global Security authenticated
and delivered hereunder shall bear a legend in substantially the following
form, or in such other form as may be necessary or appropriate to reflect the
arrangements with or to comply with the requirements of any Depositary:


 


THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY
THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE 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 THE DEPOSITORY TRUST COMPANY OR TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE.


 


15

















 


Section 3.07.  Registration, Transfer and
Exchange.  The Securities are
issuable only in registered form without coupons.  The Company will keep at each office or
agency (the “Registrar”) for each series of
Securities a register or registers (one or more such registers being referred
to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, it will register,
and will register the transfer of, Securities as in this Article 3
provided.  The Security Register shall be
in written form in the English language or in any other form capable of being
converted into such form within a reasonable time.  At all reasonable times the Security Register
shall be open for inspection by the Trustee. 
The initial Registrar shall be the Trustee.


 


Upon due presentation for
registration of transfer of any Security of any series at each such office or
agency, the Company shall execute and the Trustee shall authenticate and make
available for delivery in the name of the designated transferee or transferees
a new Security or Securities of the same series, in each case, of any
authorized denominations and of a like aggregate Principal Amount.


 


At the option of the Holder,
Securities of any series (except a Global Security) may be exchanged for other
Securities of the same series, of any authorized denominations and of a like
aggregate Principal Amount and Stated Maturity, upon surrender of the
Securities to be exchanged at such office or agency.  Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Securities which the Holder making the
exchange is entitled to receive.


 


A Holder may transfer a
Security only by written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of this
Indenture.  No such transfer shall be
effected until, and such transferee shall succeed to the rights of a Holder
only upon, final acceptance and registration of the transfer by the Registrar
in the Security Register.  Prior to the
registration of any transfer by a Holder as provided herein, the Company, the
Trustee, and any agent of the Company shall treat the Person in whose name the
Security is registered as the owner thereof for all purposes whether or not the
Security shall be overdue, and neither the Company, the Trustee, nor any such
agent shall be affected by notice to the contrary.  Furthermore, any Holder of a Global Security
shall, by acceptance of such Global Security, agree that transfers of
beneficial interests in such Global Security may be effected only through a
book entry system maintained by the Holder of such Global Security (or its
agent) and that ownership of a beneficial interest in the Security shall be
required to be reflected in a book entry. 
When Securities are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal Principal
Amount of Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if the requirements for
such transactions set forth herein are met. 
To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar’s
request.


 


16

















 


The Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any exchange or registration of transfer of
Securities (other than any such transfer taxes or other similar governmental
charge payable upon exchanges pursuant to Section 3.11, 8.05 or
10.03).  No service charge to any Holder
shall be made for any such transaction.


 


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


 


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


 


Section 3.08.  Book-Entry Provisions for Global
Securities.  (a) Each
Global Security initially shall (i) be registered in the name of the
Depositary for such Global Securities or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary or such nominee and (iii) bear
legends as set forth in Section 3.06.


 


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 the Trustee as its custodian, or
under the 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 governing the
exercise of the rights of a holder of any Security.


 


(b)                                 Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
but not in part, to the Depositary for such series, its successors or their
respective nominees.  If at any time the
Depositary for the Securities of such series notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be qualified to serve as the Depositary, the Company shall
appoint a successor depositary with respect to the Securities of such
series.  If a successor depositary for
the Securities of such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Trustee, upon receipt of a Company Order for the authentication and
delivery


 


17

















 


of definitive Securities of
such series of like tenor, will authenticate and deliver Certificated
Securities of such series of like tenor and terms in an aggregate Principal
Amount equal to the Principal Amount of the Global Security or Securities of
such series in exchange for such Global Security or Securities.


 


The Company may at any time
and in its sole discretion determine that the Securities of a series issued in
the form of one or more Global Securities shall no longer be represented by
such Global Securities.  In such event,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of Certificated Securities of such series of
like tenor and terms, will authenticate and deliver Securities of such series
of like tenor and terms in definitive form in an aggregate Principal Amount
equal to the Principal Amount of the Global Security or Securities of such
series in exchange for such Global Security or Securities.  Interests of beneficial owners in a Global
Security may be transferred in accordance with the rules and procedures of
the Depositary.  In addition,
Certificated Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security, if (i) the
Depositary (A) notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security, and a successor depositary is not
appointed by the Company within 90 days of such notice, or (B) ceases to
be qualified to serve as Depositary and a successor depositary is not appointed
by the Company within 90 days of such notice, (ii) the Company executes
and delivers to the Trustee a Company Order that such Global Security shall be
so transferable, registrable and exchangeable, and such transfers shall be
registrable, or (iii) an Event of Default of which the Trustee has actual
notice has occurred and is continuing and the Registrar has received a request
from the Depositary to issue such Certificated Securities.


 


(c)                                  Any beneficial
interest in one of the Global Securities that is transferred to a person who takes
delivery in the form of an interest in the another Global Security will, upon
such transfer, cease to be an interest in such Global Security and become an
interest in the other Global Security and, accordingly, will thereafter be
subject to all transfer restrictions, if any, and other procedures applicable
to beneficial interests in such other Global Security for as long as it remains
such an interest.


 


(d)                                 In connection
with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to Section 3.08(b), the Registrar shall
reflect on its books and records the date and a decrease in the Principal
Amount of such Global Security in an amount equal to the Principal Amount of
the beneficial interest in such Global Security to be transferred, and the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, one or more Certificated Securities of like tenor and amount.


 


(e)                                  In connection
with the transfer of an entire Global Security to beneficial owners pursuant to
Section 3.08(b), such Global Security shall be deemed to be surrendered to
the Trustee for cancellation, and the Company shall


 


18

















 


execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Global Security, an
equal Principal Amount of Certificated Securities of authorized denominations.


 


(f)                                    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 of such series.


 


Section 3.09.  Mutilated, Defaced, Destroyed,
Lost and Stolen Securities.  In
case any temporary or definitive Security shall become mutilated, defaced or be
apparently destroyed, lost or stolen, the Company in its discretion may
execute, and upon the delivery to the Trustee of a Company Order and of all
documents and certificates as required by this Indenture, the Trustee shall
authenticate and make available for delivery, a new Security of the same series
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and
substitution for the Security so apparently destroyed, lost or stolen.  In every case the applicant for a substitute
Security shall furnish to the Company and the Trustee and any agent of the
Company or the Trustee such security or indemnity as may be required by each of
them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the apparent
destruction, loss or theft of such Security and of the ownership thereof.


 


Upon the issuance of any
substitute Security, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.  In case any
Security which has matured or is about to mature, or has been called for
redemption in full, shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security of the same series, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if
the applicant for such payment shall furnish to the Company and to the Trustee
and any agent of the Company or the Trustee such security or indemnity as any
of them may require to save each of them harmless from all risks, however
remote, and, in every case of apparent destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee and any agent of
the Company or the Trustee evidence to their satisfaction of the apparent
destruction, loss or theft of such Security and of the ownership thereof.


 


Every substitute Security
issued pursuant to the provisions of this Section 3.09 by virtue of the
fact that any Security is apparently destroyed, lost or stolen shall constitute
an additional contractual obligation of the Company whether or not the apparently
destroyed, lost or stolen Security shall be at any time enforceable by anyone
and shall be entitled to all the benefits of (but shall be


 


19

















 


subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities duly authenticated and delivered
hereunder.  All Securities shall be held
and owned upon the express condition that, to the extent permitted by law, with
respect to the holder of a substitute Security, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.


 


Section 3.10.  Cancellation of
Securities.  All Securities
surrendered for payment, redemption, registration of transfer or exchange, if
surrendered to the Company or any agent of the Company or the Trustee, shall be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture.  The Trustee shall dispose of cancelled
Securities in accordance with its customary procedures.  If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same
are delivered to the Trustee for cancellation.


 


Section 3.11.  Temporary Securities.  Pending the preparation of definitive
Securities of any series, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Securities of such
series (printed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee).  Temporary
Securities shall be issuable as registered Securities of such series without
coupons, of any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Company with the concurrence of the Trustee.  Temporary Securities may contain such
reference to any provisions of this Indenture as may be appropriate.  Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities of such series.  Without
unreasonable delay the Company shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Company for the purpose pursuant to Section 4.05, and
upon delivery to the Trustee of all documents and certificates as required by
this Indenture, the Trustee shall authenticate and make available for delivery
in exchange for such temporary Securities a like aggregate Principal Amount of
definitive Securities of such series of authorized denominations.  Until so exchanged the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series.


 


Section 3.12.  CUSIP and ISIN Numbers.  The Company in issuing the
Securities of any series may use a “CUSIP” or “ISIN” number (if then generally


 


20

















 


in use), and, if so, the
Trustee shall use the CUSIP numbers or ISIN numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders of such series; provided that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or exchange and
that reliance may be placed only on the other identification numbers printed on
the Securities and any such redemption shall not be affected by any defect in
or omission of such numbers.  The Company
shall promptly notify the Trustee of any change in the CUSIP numbers or ISIN
numbers.


 


ARTICLE 4

CERTAIN COVENANTS


 


Section 4.01.  Payments in Respect of
Securities.  The Company, for
the benefit of each series of the Securities, will duly and punctually pay or
cause to be paid the principal of and premium, if any, and interest, if any
(including Additional Interest, if any), on the Securities of that series in
accordance with the terms of such Securities and this Indenture.


 


Section 4.02.  Limitation on Liens.  (a) The Company shall not,
and shall not permit any of its North American Subsidiaries, directly or
indirectly, to issue, assume or guarantee any Indebtedness if that Indebtedness
is secured by any Lien upon any Principal Property of the Company or of a North
American Subsidiary, without effectively securing each series of Securities
equally and ratably with that Indebtedness for so long as such Indebtedness is
so secured. The foregoing restriction does not apply to:


 


(i)             Liens on any property acquired, constructed or
improved by the Company or any North American Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with or within one
year after its acquisition, or completion of construction or improvement, or
within one year thereafter pursuant to a firm commitment for financing
arrangements entered into within that one-year period to secure or provide for
the payment of the purchase price or cost thereof; provided
that the aggregate principal amount of Indebtedness secured by such Liens will
not exceed the cost of the property or assets so acquired, constructed or
improved; or in addition to Liens contemplated by Section 4.02(a)(ii) and
4.02(a)(iii) below, Liens existing on any property at the time of
acquisition thereof;


 


(ii)          Liens existing on any property at the time of
acquisition thereof from a Person merged or consolidated with or into the
Company or a North American Subsidiary; provided that
the Lien is not created in contemplation of or in connection with such
acquisition, merger or consolidation;


 


21

















 


(iii)       Liens on property of any Person existing at the time
it becomes a North American Subsidiary;


 


(iv)      Liens to secure Indebtedness of a North American
Subsidiary owed to the Company or Indebtedness of the Company or a North
American Subsidiary owed to another North American Subsidiary;


 


(v)         Liens consisting solely of encumbrances,
rights-of-way, restrictions (including zoning restrictions), minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered property for its intended
purpose;


 


(vi)      any Lien existing on the date of this Indenture; or


 


(vii)   Liens for the sole purpose of extending, renewing,
replacing or refinancing Indebtedness secured by any Lien referred to in Section 4.02(a)(i) through
4.02(a)(vi), inclusive; provided, however, that the principal amount of Indebtedness secured
by that Lien shall not exceed the principal amount of Indebtedness so secured
at the time of such extension, renewal, replacement or refinancing, and that
such extension, renewal, replacement or refinancing shall be limited to the
property that secured the Lien so extended, renewed, replaced or refinanced
(plus improvements on such property).


 


(b)                                 The foregoing
limitation on Liens shall not apply to the issuance, assumption or guarantee by
the Company or any North American Subsidiary of Indebtedness secured by a Lien
which would otherwise be subject to the foregoing restrictions up to an
aggregate amount which, together with all other Indebtedness of the Company and
its North American Subsidiaries secured by Liens (not including Liens permitted
under the foregoing exceptions) that would otherwise be subject to the foregoing
restrictions and the Value of Sale and Leaseback Transactions existing at that
time (other than Sale and Leaseback Transactions that, if such Sale and
Leaseback Transaction had been a Lien, would have been permitted under clause
(a)(i) above and other than Sale and Leaseback Transactions as to which
application of amounts have been made in accordance with Section 4.03(c)),
does not at the time exceed the greater of 15% of Consolidated Net Tangible
Assets and 10% of Consolidated Capitalization.


 


Section 4.03.  Limitation on Sale and
Leaseback Transactions.  The
Company shall not, and shall not permit any of its North American Subsidiaries
to, enter into any Sale and Leaseback Transaction unless the net proceeds of
the Sale and Leaseback Transaction are at least equal to the sum of all costs
incurred by the Company or any North American Subsidiary in connection with the
acquisition of, and construction of any improvements on, the Principal Property
to be leased and:


 


22

















 


(a)                                  the Company or
the North American Subsidiary would be entitled to incur Indebtedness secured
by a Lien on the Principal Property to be leased without equally and ratably
securing the Securities, pursuant to Section 4.02(a)(i);


 


(b)                                 the Company or
the North American Subsidiary would be entitled to incur Indebtedness secured
by a Lien on the Principal Property to be leased without equally and ratably
securing the Securities, pursuant to Section 4.02(b); or


 


(c)                                  the Company or
the North American Subsidiary shall, within 180 days of the effective date of
any such arrangement (or, in the case of clause (ii) below, within six
months thereafter pursuant to a firm purchase commitment entered into within
such 180-day period) apply an amount equal to the proceeds from such Sale and
Leaseback Transaction relating to such Principal Property to:


 


(i)             the payment or other retirement of Indebtedness
incurred or assumed by the Company or any North American Subsidiary that ranks
senior to or equal with the Securities (other than Indebtedness owned or held
by the Company or any North American Subsidiary); or


 


(ii)          the purchase of other Principal Property.


 


Section 4.04.  Limitation on Incurrence
of Indebtedness by North American Subsidiaries.  The Company shall not permit any North
American Subsidiary to incur, create or assume any Indebtedness, except:


 


(a)                                  obligations
under the Credit Agreement dated as of September 19, 2007, as amended as
of June 17, 2008, as further amended, supplemented or otherwise modified from
time to time, among the Company, the subsidiary guarantors party thereto, the
lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, J.P.
Morgan Securities Inc., as sole lead arranger and sole bookrunner, and Bank of
America, N.A., HSBC Bank USA, N.A. and U.S. Bank National Association, as
syndication agents, and any extensions, renewals, replacements or refinancings
thereof;


 


(b)                                 Indebtedness
existing on the date of this Indenture;


 


(c)                                  any other
Indebtedness incurred to refund, refinance, replace, exchange, renew, repay or
extend Indebtedness existing on the date of this Indenture or incurred in
compliance with this Indenture (and any Indebtedness that may be incurred after
the date of this Indenture under commitments available on the date of this
Indenture), and Indebtedness the proceeds of which are used solely to refinance
such Indebtedness;


 


(d)                                 Indebtedness of
any Person merged or consolidated into the Company or into a North American
Subsidiary existing prior to the time of such


 


23

















 


merger or consolidation; provided that the Indebtedness is not created in
contemplation of or in connection with such merger or consolidation;


 


(e)                                  Indebtedness of
North American Subsidiary outstanding on the date on which such North American
Subsidiary was acquired by the Company and any extensions, renewals,
replacements or refinancings thereof (other than Indebtedness incurred (i) to
provide all or any portion of the funds utilized to consummate the transaction
or series of related transactions pursuant to which such North American
Subsidiary became a North American Subsidiary or was otherwise acquired by the
Company or (ii) otherwise in connection with, or in contemplation of, such
acquisition);


 


(f)                                    Indebtedness of
a North American Subsidiary owed to the Company or to another Subsidiary;


 


(g)                                 Indebtedness
secured by Liens permitted by Section 4.02(a)(i), (ii), (iii), (vi) and
(vii);


 


(h)                                 Indebtedness
permitted by Section 4.03;


 


(i)                                     Indebtedness in
respect of documentary letters of credit incurred in the ordinary course of
business;


 


(j)                                     current
liabilities, other than for borrowed money, incurred in the ordinary course of
business; and


 


(k)                                  in addition to
the items referred to in Section 4.04(a) through 4.04(j),
Indebtedness at any time outstanding in an aggregate principal amount which
will not exceed 15% of Consolidated Net Tangible Assets.


 


Section 4.05.  Maintenance of Office or
Agency.  The Company shall
maintain a Payment Office 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 the Corporate Trust Office of the
Trustee, and the Company hereby initially appoints the Trustee at its office or
agency as its agent to receive all such presentations, surrenders, notices and
demands.


 


The Company may also from
time to time designate one or more other offices or agencies where the
Securities of one or more series 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


 


24

















 


any manner relieve the
Company of its obligation to maintain an office or agency in accordance with
the requirements set forth above for Securities of any series for such
purposes.  The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.


 


Section 4.06.  Money for Securities Payments
to Be Held in Trust.  (a) If
the Company shall at any time act as Paying Agent with respect to any series of
Securities, it shall, on or before each due date of the principal of or any
premium or interest on any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal and any premium and 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.


 


(b)                                 Subject to the
provisions of Section 3.05(d), whenever the Company shall have one or more
Paying Agents for any series of Securities, it shall, prior to each due date of
the principal of or any premium or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, 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.


 


(c)                                  The Company
shall cause each Paying Agent for any series of Securities (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent will agree with the Trustee, subject to the provisions of this Section 4.06,
that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent; (ii) hold all sums held
by it for the payment of the principal of and premium, if any, or interest, if
any, on the Securities of that series in trust for the benefit of the Holders
until such sums shall be paid to such Holders or otherwise disposed of as
herein provided; (iii) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making of any payment
of principal (and premium, if any) or interest, if any, on the Securities of
that series; and (iv) during the continuance of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, and upon the written
request of that Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.


 


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


 


25

















 


Trustee, such Paying Agent
will be released from all further liability with respect to such money.


 


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


 


Section 4.07.  Existence.  Subject to Article 9, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its existence and rights (charter and statutory); provided, however, that
the Company shall not be required to preserve any such right or franchise if
the Board of Directors determines that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof will not result in a material adverse effect on the business, results
of operations or financial condition of the Company and its consolidated
Subsidiaries taken as a whole.


 


Section 4.08.  Compliance Certificate.  The Company shall deliver to the
Trustee, within 120 calendar days after the end of each fiscal year of the
Company ending after the first date any series of Securities issued under this
Indenture is outstanding, an Officer’s Certificate signed by the principal
financial officer or principal accounting officer of the Company stating that a
review of the activities of the Company during the preceding fiscal year has
been made under the supervision of the signing officer with a view to
determining whether the Company has performed its obligations under this
Indenture, and further stating, that, to the knowledge of such officer, the
Company has performed each covenant contained in this Indenture to be performed
by it hereunder, and is not in default in the performance of any covenant to be
performed by it hereunder (or, if a Default or Event of Default has occurred,
describing all such Defaults or Events of Default of which such officer may
have knowledge and what action the Company is taking or proposes to take with
respect thereto) and that, to the knowledge of such officer, no event has
occurred and remains in existence by reason of which payments on account of the
principal of and premium, if any, or interest, if any, on the Securities is
prohibited (or if such event has occurred, a


 


26

















 


description of the event and
what action the Company is taking or proposes to take with respect thereto).


 


Section 4.09.  Waiver of Certain
Covenants.  The Company may
omit in any particular instance to comply with any term, provision, or
condition set forth in the provisions of any supplemental indenture specified
in such supplemental indenture, with respect to the Securities of any series if
the Holders of a majority in Principal Amount of all outstanding Securities of
such series shall, by act of such Holders in accordance with Section 7.01,
either waive such compliance in such instance or generally waive compliance
with such term, provision, or condition, but no such waiver will extend to or
affect such term, provision 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 term, provision, or
condition will remain in full force and effect.


 


ARTICLE 5

REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT


 


Section 5.01.  Events of Default.  Each of the following shall
constitute an “Event of Default” wherever used
herein with respect to Securities of any series:


 


(a)                                  the Company’s
failure to pay principal of or premium, if any, on any Security of such series
when it becomes due and payable, whether at Stated Maturity, upon redemption,
upon purchase, upon acceleration or otherwise;


 


(b)                                 the Company’s
failure to pay any interest, if any (including Additional Interest, if any), on
any Security of such series when it becomes due and payable, and the
continuance of any such failure for a period of 30 days; provided
that failure by the Company to make such a payment shall not constitute an
Event of Default if the Company makes such payment as required during such
30-day period;


 


(c)                                  the Company’s
failure to perform any other covenant in this Indenture and the continuance of
any such failure for 90 days after written notice has been given, in the manner
provided in Section 6.06, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate Principal Amount of
the outstanding Securities of such series, specifying such default or breach
and requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder;


 


(d)                                 a default or
defaults under any Indebtedness, or any agreement or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness, of the Company or any Subsidiary, which default or defaults,
individually or in the aggregate:


 


27
















 


(i)             constitute a
failure to pay at least $100,000,000 of the principal of such Indebtedness when
due (unless such default is waived or cured within 30 days after the expiration
of any applicable grace period); or


 


(ii)          have resulted
in acceleration of any portion of such Indebtedness having an aggregate
Principal Amount equal to or in excess of $100,000,000,


 


in the case of each of clause (i) and (ii),
without the overdue or accelerated portion of such Indebtedness having been
discharged, or without such acceleration having been rescinded or annulled,
within 60 days after written notice of such default has been given, in the
manner provided in Section 6.06, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate Principal
Amount of the outstanding Securities of such series, specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder;


 


(e)                                  the entry by a
court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or of
any substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 90
consecutive days; or


 


(f)                                    the
commencement by the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company, in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestration or other similar official of the Company, 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,
in furtherance of any such action.


 


Section 5.02.  Acceleration.  (a) If an Event of Default
(other than an Event of Default specified in Section 5.01(e) or
5.01(f)) shall occur and be 


 


28

















 


continuing, either the
Trustee by written notice to the Company or the Holders of at least 25% in
aggregate Principal Amount of the outstanding Securities of that series by
written notice to the Company and the Trustee may declare the Principal Amount
of and premium, if any, and accrued and unpaid interest, if any, on all the
Securities of the affected series to be due and payable immediately.  Except as set forth above, upon such declaration
the principal of and premium, if any, and accrued and unpaid interest, if any,
on the Securities of such series shall be due and payable immediately.  If an Event of Default specified in Section 5.01(e) or
5.01(f) shall occur, the Principal Amount of and premium, if any, and
accrued and unpaid interest, if any, on all the Securities of such series shall
ipso facto become and be immediately due
and payable without further action or notice on the part of the Trustee or any
Holder.


 


(b)                                 At any time
after such a declaration of acceleration with respect to the Securities of any
series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article 5
provided, the Holders of a majority in Principal Amount of the outstanding Securities
of such series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if all Events of Default with
respect to the Securities of that series, other than the non-payment of the
principal of and premium, if any, and interest, if any, on the Securities of
that series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.04.  No such rescission will affect any subsequent
default or impair any right consequent thereon.


 


Section 5.03.  Other Remedies.  If an Event of Default with
respect to Securities of any series occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of or interest
on the Securities of such series or to enforce the performance of any provision
of the Securities of such series or this Indenture.


 


The Trustee may maintain a proceeding even if it
does not possess any of the Securities of such series or does not produce any
of them in the proceeding 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, disbursements 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.  A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default.  All remedies
are cumulative to the extent permitted by law.


 


Section 5.04.  Waiver of Past Defaults.  The Holders of not less than a
majority in aggregate Principal Amount of the Securities of any series then
outstanding by written notice to the Trustee may on behalf of the Holders of
all of 


 


29

















 


the Securities of such
series waive any existing Default or Event of Default and its consequences
under this Indenture except a continuing Default or Event of Default in the
payment of the principal of and premium, if any, or interest, if any, on any
Security of such series.  The Company
may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to waive any past default hereunder.  If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any default hereunder, whether or not such Holders
remain Holders after such record date. 
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 5.05.  Control by Majority.  With respect to the Securities of
any series, the Holders of a majority in aggregate Principal Amount of the then
outstanding Securities of that series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. 
However, the Trustee may refuse to follow any direction that conflicts
with applicable law or this Indenture, that the Trustee in good faith
determines may be unduly prejudicial to the rights of other Holders of that
series or that may cause the Trustee any potential liability, claims or expense
without the prior receipt of a reasonably satisfactory indemnity (as determined
by the Trustee in its sole discretion) from Holders making such direction.  The Trustee may take any other action which
it deems proper which is not inconsistent with any such direction.


 


Upon receipt by the Trustee of any such direction
with respect to the Securities of such series, a record date shall
automatically and without any other action by any Person be set for determining
the Holders of outstanding Securities of such series entitled to join in such
direction, which record date shall be the close of business on the day the
Trustee receives such direction.  The
Holders of outstanding Securities of such series on such record date (or their
duly appointed agents), and only such Persons, shall be entitled to join in
such direction, whether or not such Holders remain Holders after such record
date.


 


Section 5.06.  Limitation on Suits.  No Holder of any Security of any
series shall have the right to institute any proceeding with respect to this
Indenture, or for the appointment of a receiver or a trustee, or for any other
remedy thereunder, unless:


 


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


 


(b)                                 the Holders of
at least 25% in aggregate Principal Amount of the outstanding Securities of
such series have made written request of, and such Holder or Holders have
offered an indemnity reasonably satisfactory to, the Trustee to take action
because of the Event of Default; and


 


30

















 


(c)                                  the Trustee has
failed to institute such proceeding, and has not received from the Holders of a
majority in aggregate Principal Amount of the outstanding Securities of such
series a direction inconsistent with such request, within 90 days after such
notice, request and offer.


 


The limitations in this Section 5.06 shall not
apply to a suit instituted by a Holder of Securities for the enforcement of
payment of the principal of or premium, if any, or interest, if any, on such
Securities on or after the applicable due date specified in such Securities
(after giving effect to any applicable grace period specified in the related supplemental
indenture).


 


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


 


Section 5.07.  Rights of Holders to Receive
Payment.  Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment
of principal of and premium, if any, and interest, if any, on any Security, on
or after the respective due dates expressed in such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.


 


Section 5.08.  Collection Suit by
Trustee.  If an Event of
Default specified in Section 5.01 hereof occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company (or any other obligor upon the Securities)
for the whole amount of principal and premium, if any, and interest, if any,
remaining unpaid on any Securities of such series and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover amounts due the Trustee under Section 6.07 hereof,
including the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.


 


Section 5.09.  Trustee May File Proofs
of Claim.  The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Securities),
its creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it 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
hereof.  To the extent that the payment
of any such compensation, expenses, disbursements and advances of the 


 


31

















 


Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 6.07 hereof
out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other properties
which the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to 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 of any series or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 5.10.  Priorities.  If the Trustee collects any money
pursuant to this Article 5, it shall pay out the money in the following
order:


 


First: to the Trustee, its agents and attorneys for
amounts due under Section 6.07, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;


 


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


 


Third: to the Company or to such party as a court of
competent jurisdiction shall direct.  The
Trustee may fix a record date and payment date for any payment to Holders pursuant
to this Section 5.10 upon five Business Days prior notice to the Company.


 


Section 5.11.  Undertaking for Costs.  In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. 
This Section 5.11 does not apply to a suit by the Trustee, a suit
by a Holder of Securities of the affected series pursuant to Section 5.07
hereof, a suit by Holders of more than 10% in aggregate Principal Amount of the
then outstanding Securities of any series in the case of any suit relating to
or arising under Section 5.01(a), 5.01(b), 5.01(c) or 5.01(d), or a
suit by Holders of more than 10% in aggregate Principal Amount of all of the
then outstanding Securities in the case of any suit relating to or arising
under Section 5.01(e) or 5.01(f).


 


32

















 


Section 5.12.  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 has been instituted.


 


Section 5.13.  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 3.09, 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 5.14.  Delay or Omission Not
Waiver.  No delay or omission
of the Trustee or of any Holder of Securities of any series 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 5 or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.


 


ARTICLE 6

CONCERNING THE TRUSTEE


 


Section 6.01.  Duties and Responsibilities of
the Trustee; During Default: Prior to Default. 
The Trustee, with respect to the Securities of any series,
prior to the occurrence of an Event of Default with respect to the Securities
of such series and after the curing or waiving of all Events of Default with
respect to the Securities of such series which may have occurred, undertakes to
perform such duties and only such duties with respect to such series as are
specifically set forth in this Indenture. 
In case an Event of Default with respect to the Securities of a series
has occurred (and is continuing which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture
with respect to such series, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person’s own affairs.


 


33

















 


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


 


(a)                                  the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee and permissive rights of the Trustee hereunder
shall not constitute performance duties;


 


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


 


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


 


(d)                                 the Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders given as
provided in Section 5.05 or otherwise exercising any trust or power
conferred upon the Trustee under this Indenture.


 


None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
any potential or actual liability (financial or otherwise), loss or expense in
the performance of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that the repayment of
such funds or adequate indemnity against such liability is not reasonably
assured to it.  This Section 6.01 is
in furtherance of and subject to Sections 315 and 316 of the Trust Indenture
Act.


 


Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Article 6.


 


Section 6.02.  Certain Rights of the
Trustee.  In furtherance of
and subject to the Trust Indenture Act, and subject to Section 6.01:


 


(a)                                  the Trustee may
conclusively rely and shall be protected in acting or refraining from acting
upon any resolution, Officer’s Certificate, Opinion of 


 


34

















 


Counsel or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
note, coupon, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;


 


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


 


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


 


(d)                                 the Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders
of the Securities of any series pursuant to the provisions of this Indenture,
unless such Holders shall have offered and provided to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred therein or thereby; but nothing herein
contained shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured or waived) with
respect to the Securities of any series, to exercise such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs;


 


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


 


(f)                                    the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate Principal Amount of all
the Securities then outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
indemnity satisfactory to it against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such examination
shall be paid by the Company;


 


35

















 


(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 not regularly in its
employ and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care by
it hereunder;


 


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


 


(i)                                     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; and


 


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


 


(k)                                  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 or hardware) services (it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practice in the banking
industry to resume performance as soon as practicable under the circumstances).


 


(l)                                     In no event
shall the Trustee be responsible or liable for special 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, unless such loss or
damage is determined by a court of competent jurisdiction to have been
caused by the Trustee’s own fraud or willful misconduct.


 


Section 6.03.  Trustee Not Responsible for
Recitals,  Disposition of Securities
or Application of Proceeds Thereof.  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 assumes no responsibility for the correctness of the
same.  The Trustee makes no
representation as to the 


 


36

















 


validity or sufficiency of
this Indenture or of the Securities, except that the Trustee represents, that
it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made
by it in a Statement of Eligibility on Form T-1 supplied to the Company,
are true and accurate, subject to the qualifications set forth therein.  The Trustee shall not be liable or
accountable in any manner for the use or application by the Company of any of the
Securities or of the proceeds thereof.


 


Section 6.04.  Trustee and Agents May Hold
Securities; Collections, Etc.  The
Trustee or any of its affiliates or any agent of the Company or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities, subject to Sections 6.10 and 6.13 with the same rights it would
have if it were not the Trustee or such agent and may otherwise deal with the
Company and receive, collect, hold and retain collections from the Company with
the same rights it would have if it were not the Trustee or such agent.


 


Section 6.05.   Moneys Held by Trustee.  All moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law.  Neither the Trustee nor any agent of the
Company or the Trustee shall be under any liability for interest on any moneys
received by it hereunder, except as otherwise agreed with the Company.


 


Section 6.06.  Notice of Default.  If any Default or any Event of
Default occurs and is continuing with respect to the Securities of any series
and if such Default or Event of Default is actually known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Holder of Securities of
such series in the manner and to the extent provided in Trust Indenture Act Section 313(c) notice
of the Default or Event of Default (“Notice of Default”)
within 90 days after it occurs, unless such Default or Event of Default has
been cured; provided, however, that, except in the
case of a default in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, the Trustee shall be
protected in withholding such notice if and so long as a committee of
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities of
such series.


 


Section 6.07.  Compensation and
Indemnification of Trustee and Its Prior Claim. 
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation as shall
be agreed in writing between the Company and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Company covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
agents and other persons not regularly in 


 


37

















 


its employ) except any such
expense, disbursement or advance as shall have been caused by its own
negligence, gross negligence or bad faith. 
The Company also covenants to indemnify the Trustee and each predecessor
Trustee for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based on the income
of the Trustee) incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this Indenture
or the trusts hereunder and its duties hereunder, including without limitation
the costs and expenses of defending itself against or investigating any claim
(whether asserted by the Company, a Holder or any other Person).  The obligations of the Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.  Such financial obligations of the Company
identified in this Section 6.07 shall be a Lien senior to that of the
Securities of each series upon all property and funds held or collected by the
Trustee.


 


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


 


Section 6.08.  Right of Trustee to Rely on
Officer’s Certificate, Etc.  Subject
to Sections 6.01 and 6.02, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer’s Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.


 


Section 6.09.  Persons Eligible for
Appointment as Trustee.  The
Trustee hereunder shall at all times be a corporation, national association or
other appropriate entity having a combined capital and surplus of at least
$100,000,000, and which is eligible in accordance with the provisions of Section 310(a) of
the Trust Indenture Act.  If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.


 


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Section 6.10.  Resignation and Removal;
Appointment of Successor Trustee.  (a) The
Trustee may at any time resign with respect to the Securities of one or more
series by giving written notice of resignation to the Company and to the
Holders of Securities of such series, such notice to the Holders to be given by
mailing (by first class mail) the same within 30 days after such notice is
given to the Company.  Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
Trustee by written instrument in duplicate, executed by authority of the Board
of Directors of the Company, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor Trustee.  If no successor Trustee shall have been so
appointed and have accepted appointment within 60 days after the mailing 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, or any Securityholder of the affected series who has been a
bona fide holder of a Security or Securities of the affected series for at
least six months may, on behalf of itself and all others similarly situated,
petition any such court for the appointment of a successor Trustee.  Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor Trustee.


 


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


 


(i)             the Trustee
shall fail to comply with the provisions of Section 310(b) of the
Trust Indenture Act, after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months; or


 


(ii)          the Trustee
shall cease to be eligible in accordance with the provisions of Section 6.09
and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or


 


(iii)       the Trustee
shall become incapable of acting, or shall be adjudged as bankrupt or insolvent,
or a receiver or liquidator 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, the
Company may remove the Trustee and appoint a successor Trustee by written
instrument, in duplicate, executed by order of the Board of Directors of the
Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to Section 315(e) of
the Trust Indenture Act, any Securityholder who has been a bona fide holder of
a Security or Securities for at least six months may on behalf of itself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.  Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor Trustee.


 


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(c)                                  The Holders of
a majority in aggregate Principal Amount of the Securities of any series at the
time outstanding may at any time remove the Trustee for that series and appoint
a successor Trustee by delivering to the Trustee so removed, to the successor
Trustee so appointed and to the Company the evidence provided for in Section 7.01
of the action in that regard taken by the Securityholders.


 


If no successor Trustee shall have been so appointed
and have accepted appointment within 60 days after the mailing of such notice
of removal, the Company may appoint a successor Trustee by written instrument,
in duplicate, executed by order of the Board of Directors of the Company, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee.  If no
successor Trustee shall have been so appointed and have accepted appointment
within 90 days after the mailing of the initial notice of removal from the
Holders of a majority in aggregate Principal Amount of the Securities of the
affected series at the time outstanding, the Trustee being removed may
petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee. 
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.


 


(d)                                 Any resignation
or removal of the Trustee and any appointment of a successor Trustee pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 6.11.


 


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


 


Section 6.11.  Acceptance of Appointment by
Successor.  (a) In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.


 


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


 


(c)                                  Upon request of
any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in Section 6.11(a) or
6.11(b), as the case may be.


 


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


 


Section 6.12.  Merger, Conversion,
Consolidation or Succession to Business of Trustee.  Any corporation or national
association into which the Trustee may be merged or converted or with which it
may be consolidated, or to which the Trustee’s assets may be sold, or any
corporation or national association resulting from any merger, conversion,
consolidation or sale to which the Trustee shall be a party or by which the
Trustee’s property may be bound, or any corporation or national association
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee 


 


41

















 


hereunder, provided that such entity shall be eligible under the
provisions of Section 6.09, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.


 


In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any of the Securities
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Securities so authenticated; and, in case at that time any of
the Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force that it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.


 


Section 6.13.  Preferential Collection of
Claims.   If the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company (or any other obligor on the Securities), the Trustee shall be
subject to the provisions of Section 311 of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other
obligor).  For purposes of Section 311(b) (4) and
(6) of the Trust Indenture Act, the following terms shall have the following
meanings:


 


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


 


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


 


Section 6.14.  Communications with the
Trustee.  Any and all notices,
certificates, opinions or filings with the Commission required or permitted to
be provided by the Company to the Trustee under this Indenture shall be in
writing and shall be personally delivered, sent via an internationally
recognized overnight 


 


42

















 


delivery service or sent by
facsimile or electronic transmission to the address or telecopy number of the
Corporate Trust Office.


 


ARTICLE 7

CONCERNING THE HOLDERS


 


Section 7.01.  Evidence of Action Taken by
Holders.  Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by agent duly appointed in
writing and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee.  Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.01 and 6.02) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this
Article 7.


 


Section 7.02.  Proof of Execution of
Instruments and of Holding of Securities; Record Date.  Subject to Sections 6.01 and 6.02,
the execution of any instrument by a Securityholder or its agent or proxy may
be proved in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.  The holding of Securities shall
be proved by the Security Register or by a certificate of the Registrar
thereof.  The Company may set a record
date for purposes of determining the identity of Holders of Securities entitled
to vote or consent to any action referred to in Section 7.01, which record
date may be set at any time or from time to time by notice to the Trustee, for
any date or dates (in the case of any adjournment or resolicitation) not more
than 90 days nor less than 20 days prior to the proposed date of such vote or
consent, and thereafter, notwithstanding any other provisions hereof, only
Holders of Securities of record on such record date shall be entitled to so
vote or give such consent or to withdraw such vote or consent.


 


Section 7.03.  Who May Be Deemed Owners
of Securities.  The Company,
the Trustee, any Paying Agent and any Security Registrar may deem and treat the
Person in whose name any Security of any series shall be registered in the
Security Register on the applicable record date as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and premium, if any, and interest,
if any, on such Security and for all other purposes; and neither the Company
nor the Trustee nor any Paying Agent nor any Security Registrar shall be
affected by any notice to the contrary. 
All such payments so made to, or upon the order of, any Holders shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability of moneys payable upon any such Security.


 


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Section 7.04.  Securities Owned by Company
Deemed Not Outstanding.  In
determining whether the Holders of the requisite aggregate Principal Amount of
Securities of any series have concurred in any direction, consent or waiver
under this Indenture, Securities of such series which are owned by the Company
or any other obligor on the Securities of such series or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities of such series
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee actually knows are
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
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the
Securities.  In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice.  Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officer’s Certificate listing and
identifying all Securities of any series, if any, known by the Company to be
owned or held by or for the account of any of the above-described persons; and,
subject to Sections 6.01 and 6.02, the Trustee shall be entitled to accept such
Officer’s Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities of such series not listed therein are
outstanding for the purpose of any such determination.


 


Section 7.05.  Record Date for Action by
Securityholders.  Whenever in
this Indenture it is provided that Holders of a specified percentage in
aggregate Principal Amount of the Securities of any series may take any action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action), the Company,
pursuant to a resolution of its Board of Directors, or the Holders of at least
10% in aggregate Principal Amount of the Securities of such series then
outstanding, may request the Trustee to fix a record date for determining
Securityholders entitled to notice of and to take any such action.  In case the Company or the Holders of
Securities of such series in the amount above specified shall desire to request
Securityholders of such series to take any action and shall request the Trustee
to fix a record date with respect thereto by written notice setting forth in
reasonable detail the Securityholder action to be requested; the Trustee shall
promptly (but in any event within five days of receipt of such request) fix a
record date that shall be a Business Day not less than 15 nor more than 20 days
after the date on which the Trustee receives such request.  If the Trustee shall fail to fix a record
date as hereinabove provided, then the Company or the Holders of Securities of
such series in the amount above specified may fix the same by mailing written
notice 


 


44

















 


thereof (the record date so
fixed to be a Business Day not less than 15 nor more than 20 days after the
date on which such written notice shall be given) to the Trustee.  If a record date is fixed according to this Section 7.05,
only Persons shown as Securityholders of such series on the registration books
for the Company at the close of business on the record date so fixed shall be
entitled to take the requested action and the taking of such action by the
Holders of Securities of such series on the record date of the required
percentage of the aggregate Principal Amount of the Securities shall be binding
on all Securityholders of such series; provided that
the taking of the requested action by the Holders of Securities of such series
on the record date of the percentage in aggregate Principal Amount of the
Securities in connection with such action shall have been evidenced to the
Trustee, as provided in Section 7.01, not later than 180 days after such
record date.


 


Section 7.06.  Right of Revocation of Action
Taken.  At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01,
of the taking of any action by the Holders of the percentage in aggregate
Principal Amount of the Securities of any series specified in this Indenture in
connection with such action, any Holder of a Security the serial number of
which is shown by the evidence to be included among the serial numbers of the
Securities of the series the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article 7, revoke such action so far as
concerns such Security.  Except as
aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security.  Notwithstanding
the foregoing, any action taken by the Holders of the percentage in aggregate
Principal Amount of the Securities of any series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all the Securities of such series, including without
limitation, any Holder that revoked its consent in accordance with this
Section.


 


ARTICLE 8

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


Section 8.01.  Modifications and Amendments
With Consent of Holders.  The
Company may modify or amend this Indenture with respect to a series of
Securities then outstanding with the consent of the Holders of at least a
majority in aggregate Principal Amount of such series of Securities; provided, however, that
no such modification or amendment may, without the consent of the Holder of
each outstanding Security of such series affected thereby:


 


45

















 


(a)                        change the
Stated Maturity of or the principal of or premium, if any, or interest, if any,
on such series of Securities;


 


(b)                       reduce the
Principal Amount of or premium, if any, or interest, if any, on such series of
Securities or payable upon acceleration of such series of Securities following
an Event of Default;


 


(c)                        adversely
affect any right of repayment at the Holder’s option;


 


(d)                       change the
place or currency of payment of principal of or premium, if any, or interest,
if any, on such series of Securities;


 


(e)                        modify such
series of Securities to subordinate such series of Securities to other
Indebtedness;


 


(f)                          impair the
right to institute suit for the enforcement of any payment on or with respect
to such series of Securities;


 


(g)                       reduce the
percentage of aggregate Principal Amount of outstanding Securities of such
series necessary to modify or amend this Indenture with respect to such series
of Securities; or


 


(h)                       reduce the
percentage of aggregate Principal Amount of outstanding Securities of such
series necessary for waiver of compliance with certain provisions of this
Indenture with respect to such series of Securities or for waiver of certain
past defaults with respect to such series of Securities.


 


The Holders of a majority in aggregate Principal
Amount of the outstanding Securities of a series affected by an existing
Default, Event of Default or compliance with any provision of this Indenture or
the Securities of such series, may waive such Default, Event of Default or
compliance with any provision of this Indenture or the Securities of such
series, except a Default in the payment of principal or interest that has not
been cured.


 


Upon the request of the Company accompanied by Board
Resolution authorizing the execution of a supplemental indenture providing for
any such modification, amendment or waiver, and upon the filing with the Trustee
of evidence satisfactory to the Trustee of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the documents described in Section 8.04
hereof, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.


 


It shall not be necessary for the consent of the
Holders under this Section 8.01 to approve the particular form of any
proposed supplemental indenture, 


 


46

















 


amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.


 


After an amendment, supplement or waiver under this Section 8.01
becomes effective, the Company shall mail to the Holders of the Securities of a
series affected thereby a notice briefly describing the amendment, supplement
or waiver.  Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture, amendment or waiver.  Subject to Sections 5.04 and 5.07 hereof, the
Holders of a majority in aggregate Principal Amount of a series of Securities
then outstanding affected may waive compliance in a particular instance by the
Company with any provision of this Indenture with respect to such series or
such Securities.


 


Section 8.02.  Amendments to or Supplemental
Indentures Without Consent of Holders.  The
Company may amend or supplement this Indenture without notice to or the consent
of any Holder, in order, among other things, to:


 


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


 


(b)                       comply with any
requirements of the Commission in connection with the qualification of this
Indenture under the Trust Indenture Act;


 


(c)                        evidence and
provide for the acceptance of appointments under this Indenture with respect to
the Securities by a successor Trustee;


 


(d)                       evidence that
another Person has succeeded the Company and assumed the Company’s covenants
and obligations under the Securities and this Indenture;


 


(e)                        add covenants
for the benefit of the Holders, or to surrender any right or power conferred on
the Company under this Indenture;


 


(f)                          add additional
Events of Default for the benefit of the Holders of the Securities;


 


(g)                       pledge property
to the Trustee as security for the Securities;


 


(h)                       establish the
form and terms of any series of Securities as permitted by this Indenture; and


 


(i)                           make any other
change that does not adversely affect the interests of the Holders in any
material respect.


 


Upon the request of the Company accompanied by a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon receipt 


 


47

















 


by the Trustee of the
documents described in Section 8.04 hereof, the Trustee shall join with
the Company in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
may, in its discretion, but shall not be obligated to enter into such
supplemental indenture which affects its own rights, duties or immunities under
this Indenture or otherwise.


 


Section 8.03.  Effect of Supplemental
Indenture.  Upon the execution
of any supplemental indenture pursuant to the provisions of this Article 8,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of each series affected shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.


 


Section 8.04.  Documents to Be Given to
Trustee; Compliance with the Trust Indenture Act.  The Trustee, subject to the
provisions of Sections 6.01 and 6.02, shall be provided with an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that any such
supplemental indenture complies with the applicable provisions of this
Indenture.  Every such supplemental
indenture shall comply with the Trust Indenture Act.


 


Section 8.05.  Notation on Securities in
Respect of Supplemental Indentures.  Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article 8 may bear a notation
satisfactory to the Trustee as to form (but not as to substance) as to any
matter provided for by such supplemental indenture.  If the Company or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Securities of such series then outstanding.


 


ARTICLE 9

MERGER, CONSOLIDATION OR SALE OR CONVEYANCE OF ASSETS


 


Section 9.01.  When the Company May Merge,
Etc.  The Company shall not
consolidate or merge with or into any other Person or convey or transfer its
properties and assets substantially as an entirety to any Person, unless:


 


48

















 


(a)                        immediately
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing;


 


(b)                       the successor
Person (if not the Company) shall be a Person organized and existing under the
laws of the United States, any State thereof or the District of Columbia, and
shall expressly assume, by a supplemental indenture reasonably satisfactory to
the Trustee, the due and punctual payment of the principal of and premium, if
any, and interest, if any, on the Securities and the performance or observance
of every covenant in this Indenture on the part of the Company to be performed
or observed; and


 


(c)                        the Company
shall have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that the consolidation, merger, conveyance or transfer
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with Section 9.01(a) and
9.01(b) above and all other conditions precedent specified in this Indenture
relating to such consolidation, merger, conveyance or transfer have been
complied with.


 


Section 9.02.  Successor Person
Substituted.  In the case of
any consolidation, merger, conveyance or transfer, in which the Company is not
the successor Person, or any sale, assignment, conveyance, transfer or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 9.01 hereof, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such
sale, assignment, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, conveyance, transfer or other
disposition, the provisions of this Indenture referring to the “Company” shall
refer instead to the successor Person), and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein.


 


In case of any such consolidation, merger, sale or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.  Notwithstanding the foregoing, (i) a
consolidation or merger by the Company with or into, or (ii) the sale,
assignment, conveyance, transfer or other disposition by the Company of all or
substantially all of the property or assets of the Company to, one or more of
its Subsidiaries shall not relieve the Company from its obligations under this
Indenture and the Securities.


 


Section 9.03.  Opinion of Counsel to
Trustee.  The Trustee, subject
to the provisions of Sections 6.01 and 6.02, shall be provided with an Opinion
of Counsel as conclusive evidence that any such consolidation, merger,
conveyance, 


 


49

















 


sale, transfer, lease,
exchange or other disposition complies with the applicable provisions of this
Indenture.


 


ARTICLE 10

REDEMPTION OF SECURITIES


 


Section 10.01.  Applicability of Article.  Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article 10.


 


Section 10.02.  Notice of Redemption; Partial
Redemptions.  Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part shall be given by mailing notice of such redemption by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Securities at their last addresses
as they shall appear upon the Security Register.  Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. 
Failure to give notice by mail, or any defect in the notice to the
Holder of any Security designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security.


 


The notice of redemption to each such Holder shall
identify the Securities to be redeemed (including CUSIP or ISIN numbers) and
shall specify the Principal Amount of each Security held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after such date interest
thereon or on the portions thereof to be redeemed will cease to accrue.  In case any Security is to be redeemed in
part only the notice of redemption shall state the portion of the Principal
Amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities
in Principal Amount equal to the unredeemed portion thereof will be issued.


 


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


 


No later than 10:00 a.m. (New York City time)
on the redemption date specified in the notice of redemption given as provided
in this Section 10.02, the Company will deposit with the Trustee or with
one or more Paying Agents (or, if the Company is acting as Paying Agent, set
aside, segregate and hold in trust) an amount of money sufficient to redeem on
the redemption date all the Securities of a series so called for redemption at
the appropriate redemption price, together 


 


50

















 


with accrued interest to the
date fixed for redemption.  The Company
will deliver to the Trustee at least 15 days prior to the date fixed for the
giving of the notice of redemption an Officer’s Certificate stating the
aggregate Principal Amount of Securities of such series to be redeemed.


 


If less than all the Securities of a series are to
be redeemed, the Trustee shall select, either pro rata, by lot or in accordance
with any method customarily used by the Trustee or the Depositary, Securities
to be redeemed in whole or in part. 
Securities may be redeemed in part only in denominations equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof.  The Trustee shall
promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the Principal Amount thereof to be redeemed. 
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the Principal Amount of such Security which has been or is to be
redeemed.


 


Section 10.03.  Payment of Securities Called
for Redemption.  If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price, together
with interest, if any, accrued to the date fixed for redemption, and on and
after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest, if any, accrued to
such date) interest, if any, on the Securities or portions of Securities so
called for redemption shall cease to accrue and, except as provided in Sections
6.05 and 11.06, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest, if any,
to the date fixed for redemption.  On
presentation and surrender of such Securities at a Payment Office specified in
such notice, such Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided that any payment of interest becoming due on the
date fixed for redemption shall be payable to the holders of such Securities
registered as such on the relevant Regular Record Date subject to the terms and
provisions of Section 3.05 hereof.


 


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


 


Upon presentation of any Security redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the expense
of the Company, a new 


 


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Security or Securities of
authorized denominations, in Principal Amount equal to the unredeemed portion
of the Security so presented.


 


ARTICLE 11

DEFEASANCE AND COVENANT DEFEASANCE


 


Section 11.01.  Applicability of the Article;
Company’s Option to Effect Defeasance or Covenant Defeasance.  Unless pursuant to Section 3.01
provision is made for the inapplicability of either or both of (a) defeasance
of the Securities of a series under Section 11.02 or (b) covenant
defeasance of the Securities of a series under Section 11.03, then the
provisions of such Section or Sections, as the case may be, together with
the other provisions of this Article 11, shall be applicable to the
Securities of such series, and the Company may, at its option, by resolution of
its Board of Directors, at any time, elect to have either Section 11.02 or
Section 11.03 applied to the outstanding Securities of a series upon
compliance with the conditions set forth below in this Article 11.


 


Section 11.02.  Full Defeasance and
Discharge.  Upon the Company’s
exercise of the option provided under Section 11.01 hereof to defease the
outstanding Securities of a particular series under this Section 11.02,
the Company shall be deemed to have been discharged from its obligations with
respect to such outstanding Securities on the date the conditions set forth
below are satisfied (hereinafter, “Full Defeasance”).  For this purpose, such Full Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities of such series, which
shall thereafter be deemed to be “outstanding” only for the purposes of Section 11.05
hereof and the other Sections of this Indenture referred to in clauses (i) and
(ii) of this Section 11.02, and to have satisfied all its other
obligations under such Securities and this Indenture (and the Trustee, on
demand of and at the expense of the Company shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:  (i) the rights of Holders of outstanding
Securities of such series to receive solely from the trust fund described in Section 11.04
hereof, and as more fully set forth in such Section, payments in respect of the
principal of and premium, if any, and interest, if any, on such Securities when
such payments are due, (ii) the Company’s obligations with respect to such
Securities under Sections 3.06, 3.07, 3.08(a), 3.09, 3.11, and 11.05 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, the Trustee’s rights under Section 6.07
hereof, and the Company’s obligations in connection therewith and with this Article 11.  Subject to compliance with this Article 11,
the Company may exercise its option under this Section 11.02
notwithstanding the prior exercise of its option under Section 11.03
hereof with respect to the Securities of such series.


 


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Section 11.03.  Covenant Defeasance.  Upon the Company’s exercise of the
option provided under Section 11.01 hereof to obtain a covenant defeasance
with respect to the outstanding Securities of a particular series under this Section 11.03,
the Company shall be released from its obligations under the covenants
contained in Article 4 (other than Sections 4.01, 4.05, 4.06, 4.08 and
4.09), Section 8.01, Section 8.02 and Section 9.01 hereof and
the covenants contained in any supplemental indenture applicable to such
series, with respect to the outstanding Securities of such series on and after
the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance’’), and the Securities of such series
shall thereafter be deemed not outstanding for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
outstanding for all other purposes hereunder. 
For this purpose, such Covenant Defeasance means that, with respect to
the outstanding Securities of such series, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.01(c) with respect to outstanding Securities of such
series, but, except as specified above, the remainder of this Indenture and of
the Securities of such series shall be unaffected thereby.


 


Section 11.04.  Conditions to Legal or
Covenant Defeasance.  The
following shall be the conditions to the application of either Section 11.02
or Section 11.03 hereof to the outstanding Securities of a particular
series:


 


(a)                        The Company
shall irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.10 who shall
agree to comply with the provisions of this Article 11 applicable to it)
as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities, (i) an amount in cash (in such currency,
currencies or currency unit in which such Securities and any related coupons
are then specified as payable at Stated Maturity), or (ii) non-callable
Government Securities that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in U.S. Dollars in
an amount, or (iii) a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge the principal of and premium, if
any, and interest, if any, on such outstanding Securities on the Stated
Maturity of such principal or installment of principal, or interest or premium,
if any.


 


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(b)                       In the case of
an election under Section 11.02 hereof, the Company shall have delivered
to the Trustee an Opinion of Counsel confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such Full Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Full Defeasance had not
occurred.


 


(c)                        In the case of
an election under Section 11.03 hereof, the Company shall have delivered
to the Trustee an Opinion of Counsel confirming that the Holders of the
outstanding Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred.


 


(d)                       No Default or
Event of Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit or, insofar as Section 5.01(e) or
Section 5.01(f) hereof is concerned, at any time in the period ending
on the 124th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).


 


(e)                        Such Full
Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under any material agreement or instrument (other than
this Indenture) to which the Company is a party or by which the Company is bound
(other than a breach, violation or default resulting from the borrowing of
funds to be applied to such deposit).


 


(f)                          The Company
shall have delivered to the Trustee an Officer’s Certificate stating that the
deposit made by the Company pursuant to its election under Section 11.02
or 11.03 hereof was not made by the Company with the intent of preferring the
Holders of the affected Securities over the other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding creditors of the
Company.


 


(g)                       Such Full
Defeasance or Covenant Defeasance shall be effected in compliance with any
additional terms, conditions or limitations which may be imposed on the Company
in connection therewith pursuant to Section 3.01.


 


(h)                       The Company shall
have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to
either the Full Defeasance under Section 11.02 hereof or 


 


54

















 


the Covenant Defeasance
under Section 11.03 hereof (as the case may be) have been complied with as
contemplated by this Section 11.04.


 


Section 11.05.  Deposited Money and Government
Securities to Be Held in Trust; Other Miscellaneous Provisions.  Subject to Section 11.06
hereof, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee pursuant to Section 11.04
hereof in respect of the outstanding Securities of a particular series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal and premium, if any, and interest, if any,
but such money need not be segregated from other funds except to the extent
required by law.


 


The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 11.04
hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge that by law is for the account of the Holders of
the outstanding Securities of such series.


 


Anything in this Article 11 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the Company’s request any money or non-callable Government Securities
held by it as provided in Section 11.04 hereof with respect to the
Securities of any series which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 11.04(a) hereof),
are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Full Defeasance or Covenant Defeasance.


 


Section 11.06.  Repayment to the Company.  Subject to any applicable
abandoned property or escheat law, 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, and interest, if any, on any Security and
remaining unclaimed for two years after such principal, or interest or premium,
if any, has become due and payable shall be paid to the Company on its written
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 The New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 


 


55

















 


days from the date of such notification
or publication, any unclaimed balance of such money then remaining will be
repaid to the Company.


 


Section 11.07.  Reinstatement.  If the Trustee or Paying Agent is
unable to apply any U.S. Dollars or non-callable Government Securities in accordance
with Section 11.02 or 11.03 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company’s obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 11.02 or 11.03 hereof until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 11.05 or 11.06 hereof, as the case may be; provided, however, that, if the Company makes any payment of
principal of or interest or premium, if any, on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Security to receive such payment from the money held by
the Trustee or Paying Agent.


 


ARTICLE 12

SATISFACTION AND DISCHARGE


 


Section 12.01.  Satisfaction and Discharge of Indenture.  This Indenture will cease to be of
further effect, and the Company will be deemed to have satisfied and discharged
this Indenture, with respect to a series of Securities (except, as to any
surviving rights of registration of transfer, exchange or conversion of
Securities of such series herein expressly provided for or in the form of
Security for such series and any rights to receive payment of interest
thereon), 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 the following conditions have been satisfied:


 


(a)                        either


 


(i)                                     all Securities
of such series theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.09, and (B) Securities for whose payment
money has theretofore been (x) deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 4.06(c) or (y) paid to any
State of the United States or the District of Columbia pursuant to its
unclaimed property or similar laws) have been delivered to the Trustee for
cancellation; or


 


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


 


(A)                                   have become due
and payable, or


 


56

















 


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


 


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


 


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


 


(b)                       the Company has
paid or caused to be paid all other sums payable under this Indenture with
respect to such Securities; and


 


(c)                        the Company has
delivered to the Trustee an Officer’s Certificate and Opinion of Counsel, each
stating that all the conditions provided for in this Section 12.01 have been
complied with.


 


Notwithstanding the satisfaction and discharge of
this Indenture the obligations of the Company to the Trustee under Section 6.07
and, if money shall have been deposited with the Trustee pursuant to Section 12.01(a)(ii),
the obligations of the Trustee under Section 12.02 and the last paragraph
of Section 4.06 shall survive such satisfaction and discharge.


 


Section 12.02.  Application of Trust
Money.  Subject to the
provisions of the last paragraph of Section 4.06, all money deposited with
the Trustee pursuant to Section 12.01 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 Paying Agent), as the Trustee may determine, to the Persons
entitled thereto, of the principal and premium, if any, and interest, if any,
for whose payment such money has been deposited with the Trustee.


 


ARTICLE 13

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 13.01.  Company to Furnish Trustee
Names and Addresses of Holders.  The
Company will furnish or cause to be furnished to the Trustee:


 


57
















 


(a)                                  semi-annually,
not later than 10 days after the Regular Record Date for each series of
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities as of such Regular Record Date
(unless the Trustee has such information), or if there is no Regular Record
Date for interest for such series of Securities, semi-annually, upon such dates
as are set forth in the Board Resolution or indenture supplemental hereto
authorizing such series, and


 


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


 


 provided, however, that so long as the Trustee is the Registrar, no
such list shall be required to be furnished.


 


Section 13.02.  Preservation of Information;
Communications to Holders.  (a) The Trustee
shall preserve, in as current 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 13.01 and the names and addresses of Holders
received by the Trustee in its capacity as the Registrar.  The Trustee may destroy any list furnished to
it as provided in Section 13.01 upon receipt of a new list so furnished.


 


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


 


(i)                                  afford such applicants
access to the information preserved at the time by the Trustee in accordance
with Section 13.02(a); or


 


(ii)                                  inform such
applicants as to the approximate number of Holders whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with Section 13.02(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in such
application.


 


If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder whose name and address appears
in the information preserved at the time by the Trustee in accordance with Section 13.02(a) a
copy of the form of 


 


58

















 


proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders or would be in
violation of applicable law.  Such
written statement shall specify the basis of such opinion.  If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all objections so
sustained have been met and shall enter an order so declaring; the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.


 


(c)                                  Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance
with Section 13.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 13.02(b).


 


Section 13.03.  Reports by the Trustee.  (a) The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.  If required by Section 313(a) of
the Trust Indenture Act, the Trustee shall, within 60 days after each May 15th
following the date of this Indenture (commencing May 15, 2009) deliver to
Holders a brief report, dated as of such May 15th, which complies with the
provisions of such Section 313(a).


 


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


 


Section 13.04.  Reports by the Company.  The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the Commission, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing the Commission may by rules and 


 


59

















 


regulations
prescribe) which the Company is required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act; provided
that any such annual and quarterly reports, information, documents and other
reports and information filed with the Commission may be provided by the
Company to the Trustee electronically. 
The Company shall comply with the other provisions of the Trust
Indenture Act Section 314(a). 
Delivery of such information, documents and reports to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer’s Certificates).  At any time when the Company is not subject
to Section 13 or 15(d) of the Exchange Act, upon request of Holders
and prospective purchasers of Securities thereof, the Company shall file with
the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports, if any, which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations.


 


ARTICLE 14

MISCELLANEOUS PROVISIONS


 


Section 14.01.  Incorporators, Stockholders,
Officers and Directors of Company Exempt from Individual Liability.  No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security of any series, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities of such series by the Holders thereof and as part of the
consideration for the issue of the Securities of such series.


 


Section 14.02.  Provisions of Indenture for
the Sole Benefit of Parties and Holders. 
Except as set forth in Section 14.09, nothing in this
Indenture or in the Securities of any series, expressed or implied, shall give
or be construed to give to any Person, other than the parties hereto and their
successors and the Holders of the Securities of such series, any legal or
equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and of the Holders of
the Securities.


 


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Section 14.03.  Successors and Assigns of
Company Bound by Indenture.  All
the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.


 


Section 14.04.  Notices to Holders.  Where this Indenture provides for
notice to Holders, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto, at its last address as it appears in
the Security Register.  In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice.  The
Trustee may waive notice to it of any provision herein, and such waiver shall
be deemed to be for its convenience and discretion.  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 or
irregularities in regular mail service, it shall be impracticable to mail
notice to the Company and Securityholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.


 


Section 14.05.  Officers, Certificates and
Opinions of Counsel; Statements to Be Contained Therein.  Upon any application or demand by
the Company to the Trustee to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.


 


Each certificate or opinion provided for in
this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a
statement that the person making such certificate or opinion has read such
covenant or condition, (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 such person, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with and (d) a 


 


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


 


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


 


Any certificate, statement or opinion of an
officer of the Company or of counsel may be based, in so far as it relates to
accounting matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company unless such
officer or counsel knows that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.


 


Any certificate or opinion of any independent
firm of public accountants filed with the Trustee shall contain a statement
that such firm is independent within the meaning of the Securities Act and the rules and
regulations promulgated thereunder.


 


Section 14.06.  Payments Due on Saturdays,
Sundays and Holidays.  If the date
of Maturity of interest on or principal of the Securities of a particular
series or the date fixed for redemption of any Security shall not be a Business
Day, then payment of interest or principal with respect to such Securities need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of Maturity or the date
fixed for redemption, and no interest shall accrue for the period after such
date.


 


Section 14.07.  Conflict of Any Provision of
Indenture with Trust Indenture Act.  If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture by operation of
Sections 310 to 317, inclusive, of the Trust Indenture Act (an “incorporated provision”), such incorporated provision shall
control.


 


Section 14.08.  Governing Law.  This Indenture and the Securities
of any series shall be governed by, and construed in accordance with, the laws
of the State of New York.


 


Section 14.09.  Third Party
Beneficiaries.  Holders of
Securities of the Company are third party beneficiaries of this Indenture, and
any of them (or their representative) shall have the right to enforce the
provisions of this Indenture that benefit such Holders.


 


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Section 14.10.  Counterparts.  This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.


 


Section 14.11.  Effect of Headings.  The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


Section 14.12.  Severability.  If any provision hereof shall be
held to be invalid, illegal or unenforceable under applicable law, then the
remaining provisions hereof shall be construed as though such invalid, illegal
or unenforceable provision were not contained herein.


 


Section 14.13.  Patriot Act Compliance.  The parties hereto acknowledge
that in accordance with Section 326 of the USA Patriot Act the Trustee,
like all financial institutions, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a
relationship or opens account with Wells Fargo Bank, N.A.  The parties to this Indenture agree that they
will provide the Trustee with such information as it may request in order for
the Trustee to satisfy the requirements of the USA Patriot Act.


 


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SIGNATURES


 


IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, all as of June 24, 2008.


 


	
   

  	
  BEST BUY CO., INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ryan D. Robinson

  
	
   

  	
   

  	
  Name:  Ryan D. Robinson

  
	
   

  	
   

  	
  Title:    Senior Vice President, U.S. SBU CFO and
  Treasurer

  



 


 


Signature Page to Indenture


 

















 


	
   

  	
  WELLS FARGO BANK, N.A., as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jane Y. Schweiger

  
	
   

  	
   

  	
  Name:   Jane Y. Schweiger

  
	
   

  	
   

  	
  Title:     Vice President

  



 


 


Signature Page to Indenture