EX-4.1



 





Exhibit
4.1



EXECUTION COPY




McMoRan EXPLORATION CO.




INDENTURE




Dated as of November 14, 2007




THE BANK OF NEW YORK

Trustee




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	Article 1	 	 	 	 
	 

	 	DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.1

	 	Definitions
	 	 	1	 
	 
	 	 	 	 	 	 
	Section 1.2

	 	Other Definitions
	 	 	4	 
	 
	 	 	 	 	 	 
	Section 1.3

	 	Incorporation by Reference of Trust Indenture Act
	 	 	4	 
	 
	 	 	 	 	 	 
	Section 1.4

	 	Rules of Construction
	 	 	5	 
	 
	 	 	 	 	 	 
	 

	 	Article 2	 	 	 	 
	 

	 	THE SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.1

	 	Issuable in Series
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 2.2

	 	Establishment of Terms of Series of Securities
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 2.3

	 	Execution and Authentication
	 	 	7	 
	 
	 	 	 	 	 	 
	Section 2.4

	 	Registrar and Paying Agent
	 	 	8	 
	 
	 	 	 	 	 	 
	Section 2.5

	 	Paying Agent to Hold Money in Trust
	 	 	8	 
	 
	 	 	 	 	 	 
	Section 2.6

	 	Securityholder Lists
	 	 	8	 
	 
	 	 	 	 	 	 
	Section 2.7

	 	Transfer and Exchange
	 	 	9	 
	 
	 	 	 	 	 	 
	Section 2.8

	 	Mutilated, Destroyed, Lost and Stolen Securities
	 	 	9	 
	 
	 	 	 	 	 	 
	Section 2.9

	 	Outstanding Securities
	 	 	9	 
	 
	 	 	 	 	 	 
	Section 2.10

	 	Treasury Securities
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 2.11

	 	Temporary Securities
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 2.12

	 	Cancellation
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 2.13

	 	Defaulted Interest
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 2.14

	 	Global Securities
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 2.15

	 	CUSIP Numbers
	 	 	11	 
	 
	 	 	 	 	 	 
	 

	 	Article 3	 	 	 	 
	 

	 	REDEMPTION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.1

	 	Notice to Trustee
	 	 	12	 
	 
	 	 	 	 	 	 
	Section 3.2

	 	Selection of Securities to be Redeemed	 	 	12	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 3.3

	 	Notice of Redemption
	 	 	12	 
	 
	 	 	 	 	 	 
	Section 3.4

	 	Effect of Notice of Redemption
	 	 	12	 
	 
	 	 	 	 	 	 
	Section 3.5

	 	Deposit of Redemption Price
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 3.6

	 	Securities Redeemed in Part
	 	 	13	 
	 
	 	 	 	 	 	 
	 

	 	Article 4	 	 	 	 
	 

	 	COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.1

	 	Payment of Principal and Interest
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 4.2

	 	SEC Reports
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 4.3

	 	Compliance Certificate
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 4.4

	 	Stay, Extension and Usury Laws
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 4.5

	 	Corporate Existence
	 	 	14	 
	 
	 	 	 	 	 	 
	Section 4.6

	 	Taxes
	 	 	14	 
	 
	 	 	 	 	 	 
	 

	 	Article 5	 	 	 	 
	 

	 	SUCCESSORS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.1

	 	Company May Consolidate, Etc., Only on Certain Terms
	 	 	14	 
	 
	 	 	 	 	 	 
	Section 5.2

	 	Successor Corporation Substituted
	 	 	14	 
	 
	 	 	 	 	 	 
	 

	 	Article 6	 	 	 	 
	 

	 	DEFAULTS AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.1

	 	Events of Default
	 	 	14	 
	 
	 	 	 	 	 	 
	Section 6.2

	 	Acceleration of Maturity; Rescission and Annulment
	 	 	15	 
	 
	 	 	 	 	 	 
	Section 6.3

	 	Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	16	 
	 
	 	 	 	 	 	 
	Section 6.4

	 	Trustee May File Proofs of Claim
	 	 	17	 
	 
	 	 	 	 	 	 
	Section 6.5

	 	Trustee May Enforce Claims Without Possession of Securities
	 	 	17	 
	 
	 	 	 	 	 	 
	Section 6.6

	 	Application of Money Collected
	 	 	17	 
	 
	 	 	 	 	 	 
	Section 6.7

	 	Limitation on Suits
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 6.8

	 	Unconditional Right of Holders to Receive Principal and Interest
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 6.9

	 	Restoration of Rights and Remedies
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 6.10

	 	Rights and Remedies Cumulative
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 6.11

	 	Delay or Omission Not Waiver
	 	 	19	 
	 
	 	 	 	 	 	 





ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 6.12

	 	Control by Holders
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 6.13

	 	Waiver of Past Defaults
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 6.14

	 	Undertaking for Costs
	 	 	19	 
	 
	 	 	 	 	 	 
	 

	 	Article 7	 	 	 	 
	 

	 	TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.1

	 	Duties of Trustee
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 7.2

	 	Rights of Trustee
	 	 	20	 
	 
	 	 	 	 	 	 
	Section 7.3

	 	Individual Rights of Trustee
	 	 	21	 
	 
	 	 	 	 	 	 
	Section 7.4

	 	Trustee’s Disclaimer
	 	 	21	 
	 
	 	 	 	 	 	 
	Section 7.5

	 	Notice of Defaults
	 	 	21	 
	 
	 	 	 	 	 	 
	Section 7.6

	 	Reports by Trustee to Holders
	 	 	22	 
	 
	 	 	 	 	 	 
	Section 7.7

	 	Compensation and Indemnity
	 	 	22	 
	 
	 	 	 	 	 	 
	Section 7.8

	 	Replacement of Trustee
	 	 	22	 
	 
	 	 	 	 	 	 
	Section 7.9

	 	Successor Trustee by Merger, etc.
	 	 	23	 
	 
	 	 	 	 	 	 
	Section 7.10

	 	Eligibility; Disqualification
	 	 	24	 
	 
	 	 	 	 	 	 
	Section 7.11

	 	Preferential Collection of Claims Against Company
	 	 	24	 
	 
	 	 	 	 	 	 
	 

	 	Article 8	 	 	 	 
	 

	 	SATISFACTION AND DISCHARGE; DEFEASANCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.1

	 	Satisfaction and Discharge of Indenture
	 	 	24	 
	 
	 	 	 	 	 	 
	Section 8.2

	 	Application of Trust Funds; Indemnification
	 	 	24	 
	 
	 	 	 	 	 	 
	Section 8.3

	 	Legal Defeasance of Securities of any Series
	 	 	25	 
	 
	 	 	 	 	 	 
	Section 8.4

	 	Covenant Defeasance
	 	 	26	 
	 
	 	 	 	 	 	 
	Section 8.5

	 	Repayment to Company
	 	 	27	 
	 
	 	 	 	 	 	 
	Section 8.6

	 	Reinstatement
	 	 	27	 
	 

	 	Article 9	 	 	 	 
	 

	 	AMENDMENTS AND WAIVERS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.1

	 	Without Consent of Holders
	 	 	27	 
	 
	 	 	 	 	 	 
	Section 9.2

	 	With Consent of Holders
	 	 	27	 
	 
	 	 	 	 	 	 
	Section 9.3

	 	Limitations
	 	 	28	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 9.4

	 	Compliance with Trust Indenture Act
	 	 	29	 
	 
	 	 	 	 	 	 
	Section 9.5

	 	Revocation and Effect of Consents
	 	 	29	 
	 
	 	 	 	 	 	 
	Section 9.6

	 	Notation on or Exchange of Securities
	 	 	29	 
	 
	 	 	 	 	 	 
	Section 9.7

	 	Trustee Protected
	 	 	29	 
	 
	 	 	 	 	 	 
	Section 9.8

	 	Payment for Consent
	 	 	29	 
	 
	 	 	 	 	 	 
	 

	 	Article 10	 	 	 	 
	 

	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.1

	 	Trust Indenture Act Controls
	 	 	29	 
	 
	 	 	 	 	 	 
	Section 10.2

	 	Notices
	 	 	29	 
	 
	 	 	 	 	 	 
	Section 10.3

	 	Communication by Holders with Other Holders
	 	 	30	 
	 
	 	 	 	 	 	 
	Section 10.4

	 	Certificate and Opinion as to Conditions Precedent
	 	 	30	 
	 
	 	 	 	 	 	 
	Section 10.5

	 	Statements Required in Certificate or Opinion
	 	 	30	 
	 
	 	 	 	 	 	 
	Section 10.6

	 	Rules by Trustee and Agents
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.7

	 	Legal Holidays
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.8

	 	No Recourse Against Others
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.9

	 	Counterparts
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.10

	 	Governing Laws
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.11

	 	No Adverse Interpretation of Other Agreements
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.12

	 	Successors
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.13

	 	Severability
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.14

	 	Table of Contents, Headings, Etc.
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.15

	 	Securities in a Foreign Currency or in ECU
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 10.16

	 	Judgment Currency
	 	 	32	 
	 
	 	 	 	 	 	 
	 

	 	Article 11	 	 	 	 
	 

	 	SINKING FUNDS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.1

	 	Applicability of Article
	 	 	32	 
	 
	 	 	 	 	 	 
	Section 11.2

	 	Satisfaction of Sinking Fund Payments with Securities
	 	 	33	 
	 
	 	 	 	 	 	 
	Section 11.3

	 	Redemption of Securities for Sinking Fund
	 	 	33	 
	 
	 	 	 	 	 	 





iv









 






McMoRan EXPLORATION CO.

Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of
November 14, 2007




	 	 	 
	Section 310(a)(1)
	 	7.1
	(a)(2)
	 	7.1
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(a)(5)
	 	7.1
	(b)
	 	7.1
	Section 311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	Not Applicable
	Section 312(a)
	 	2.6
	(b)
	 	10.3
	(c)
	 	10.3
	Section 313(a)
	 	7.6
	(b)(1)
	 	7.6
	(b)(2)
	 	7.6
	(c)(1)
	 	7.6
	(d)
	 	7.6
	Section 314(a)
	 	4.2, 10.5
	(b)
	 	Not Applicable
	(c)(1)
	 	10.4
	(c)(2)
	 	10.4
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	10.5
	(f)
	 	Not Applicable
	Section 315(a)
	 	7.1
	(b)
	 	7.5
	(c)
	 	7.1
	(d)
	 	7.1
	(e)
	 	6.14
	Section 316(a)
	 	2.1
	a)(1)(A)
	 	6.12
	a)(1)(B)
	 	6.13
	b)
	 	6.8
	Section 317(a)(1)
	 	6.3
	(a)(2)
	 	6.4
	(b)
	 	2.5
	Section 318(a)
	 	10.1





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




v









 





     This INDENTURE dated as of November 14, 2007 between McMoRan EXPLORATION CO., a Delaware
corporation (“Company”), and THE BANK OF NEW YORK, a New York banking corporation (“Trustee”).



     Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Securities issued under this Indenture.



ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.1 Definitions.



     “Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified therein and which are owing to such Holders.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities or by agreement or
otherwise.



     “Agent” means any Registrar, Paying Agent, Service Agent or authenticating agent.



     “Authorized Newspaper” means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical to make any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a
sufficient publication of such notice.



     “Bearer” means anyone in possession from time to time of a Bearer Security.



     “Bearer Security” means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.



     “Board Of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.



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



     “Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal
holiday in The City of New York or the City of New Orleans on which banking institutions are
authorized or required by law, regulation or executive order to close.



     “Company” means the party named as such above until a successor replaces it and thereafter
means the successor.



     “Company Order” means a written order signed in the name of the Company by two Officers, one
of whom must be the Company’s chief executive officer, chief financial officer or principal
accounting officer.



1









 





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



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



     “Debt” of any Person as of any date means, without duplication, all indebtedness of such
Person in respect of borrowed money, including all interest, fees and expenses owed in respect
thereto (whether or not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments.



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



     “Depository” means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person designated as Depository for
such Series by the Company, which Depository shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such Person, “Depository” as used with
respect to the Securities of any Series shall mean the Depository with respect to the Securities of
such Series.



     “Discount Security” means a Security which is issued at a price which is less than such
Security’s stated principal amount at maturity.



     “Dollars” means the currency of The United States of America.



     “ECU” means the European Currency Unit as determined by the Commission of the European Union.



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



     “Foreign Currency” means any currency or currency unit issued by a government other than the
government of The United States of America.



     “Foreign Government Obligations” means with respect to Securities of any Series that are
denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused
to be issued such currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under clause (i) or
(ii), are not callable or redeemable at the option of the issuer thereof.



     “Global Security” or “Global Securities” means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.14 evidencing all or part of a Series of
Securities, issued to the Depository for such Series or its nominee, and registered in the name of
such Depository or nominee.



     “Holder” or “Securityholder” means a Person in whose name a Security is registered or the
holder of a Bearer Security.



     “Indenture” means this Indenture as amended from time to time and shall include the form and
terms of particular Series of Securities established as contemplated hereunder.



     “Maturity” means, when used with respect to any Security or installment of principal thereof,
the date on which the principal of such Security or such installment of principal becomes due and
payable as therein or herein



2









 







provided, whether at the Stated Maturity or by declaration of acceleration, call for
redemption, notice of option to elect repayment or otherwise.



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



     “Officers’ Certificate” means a certificate signed by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal accounting officer.



     “Opinion of Counsel” means a written opinion of legal counsel. The counsel may be an employee
of or counsel to the Company.



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



     “Principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.



     “Responsible Officer” shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs 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 such person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.



     “Series” or “Series of Securities” means each series of debentures, notes or other Debt
instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.



     “Significant Subsidiary” means (i) any direct or indirect Subsidiary of the Company that would
be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on the date
hereof, or (ii) any group of direct or indirect Subsidiaries of the Company that, taken together as
a group, would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on
the date hereof.



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



     “Subsidiary” of any specified Person means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power for the election of directors
of such corporation (irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by such Person, or by one or more other
Subsidiaries, or by such Person and one or more other Subsidiaries.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect
on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust
Indenture Act as so amended.



3









 





     “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, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any Series shall mean the Trustee with respect to Securities of that Series.



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



     Section 1.2 Other Definitions.



	 	 	 	 	 
	 	 	DEFINED IN
	                    TERM	 	SECTION
	“Bankruptcy Law”
	 	 	6.1	 
	“Custodian”
	 	 	6.1	 
	“Event of Default”
	 	 	6.1	 
	“Journal”
	 	 	10.15	 
	“Judgment Currency”
	 	 	10.16	 
	“Legal Holiday”
	 	 	10.7	 
	“Mandatory Sinking Fund Payment”
	 	 	11.1	 
	“Market Exchange Rate”
	 	 	10.15	 
	“New York Banking Day”
	 	 	10.16	 
	“Optional Sinking Fund Payment”
	 	 	11.1	 
	“Paying Agent”
	 	 	2.4	 
	“Registrar”
	 	 	2.4	 
	“Required Currency”
	 	 	10.16	 
	“Service Agent”
	 	 	2.4	 






     Section 1.3 Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have the following
meanings:




	 	(a)	 	“Commission” means the SEC.
	 
	 	(b)	 	“indenture securities” means the Securities.
	 
	 	(c)	 	“indenture security holder” means a Securityholder.
	 
	 	(d)	 	“indenture to be qualified” means this Indenture.
	 
	 	(e)	 	“indenture trustee” or “institutional trustee” means the Trustee.
	 
	 	(f)	 	“obligor” on the indenture securities means the Company and any successor obligor upon the
Securities.




4









 











     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.



     Section 1.4 Rules of Construction. Unless the context otherwise requires:



          (a) a term has the meaning assigned to it;




          (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with
generally accepted accounting principles;




          (c) references to “Generally Accepted Accounting Principles” shall mean generally accepted
accounting principles in effect as of the time when and for the period as to which such accounting
principles are to be applied;




          (d) “or” is not exclusive;




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




          (f) provisions apply to successive events and transactions.




ARTICLE 2

THE SECURITIES




     Section 2.1 Issuable in Series. The aggregate principal amount of Securities that may
be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in
one or more Series. All Securities of a Series shall be identical except as may be set forth in a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate detailing the
adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the
case of Securities of a Series to be issued from time to time, the Board Resolution, supplemental
indenture hereto or Officers’ Certificate may provide for the method by which specified terms (such
as interest rate, maturity date, record date or date from which interest shall accrue) are to be
determined. Securities may differ between Series in respect of any matters; provided that all
Series of Securities shall be equally and ratably entitled to the benefits of this Indenture.



     Section 2.2 Establishment of Terms of Series of Securities. At or prior to the
issuance of any Securities within a Series, the following shall be established by a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate pursuant to authority
granted under a Board Resolution:



          (a) the title of the Series (which shall distinguish the Securities of that particular Series
from the Securities of any other Series);




          (b) the price or prices (expressed as a percentage of the principal amount thereof) at which
the Securities of the Series will be issued;




          (c) any limit upon the aggregate principal amount of the Securities of the Series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series
pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);




          (d) the Stated Maturity or Maturity on which the principal of the Securities of the Series is
payable or the method of determination thereof;




          (e) the rate or rates (which may be fixed or variable) per annum or, if applicable, the method
used to determine such rate or rates (including, but not limited to, any commodity, commodity
index, stock exchange index or financial index) at which the Securities of the Series shall bear
interest, if any;




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          (f) the date or dates from which such interest, if any, shall accrue, the date or dates on
which such interest, if any, shall commence and be payable and any regular record date for the
interest payable on any interest payment date or the manner of determination of such date and the
record date for the determination of holders to whom interest is payable on such date;




          (g) the Persons who shall be entitled to receive interest on the Series of Securities, if
other than the record holder on the record date;




          (h) the place or places where the principal of and interest, if any, on the Securities of the
Series shall be payable, or the method of such payment, if by wire transfer, mail or other means;




          (i) the right, if any, to extend or defer the payment of interest on the Securities of the
Series and the duration of such extension;




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




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




          (l) the dates, if any, on which, and the price or prices at which, the Securities of the
Series will be repurchased by the Company at the option of the Holders thereof and other detailed
terms and provisions of such repurchase obligations;




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




          (n) the forms of the Securities of the Series in bearer or fully registered form (and, if in
fully registered form, whether the Securities will be issuable as Global Securities);




          (o) if other than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2;




          (p) whether the Securities will be convertible into or exchangeable for shares of common stock
or other securities of the Company and, if so, the terms and conditions upon which such Securities
will be convertible or exchangeable, including the conversion or exchange price and the conversion
or exchange period;




          (q) the currency of denomination of the Securities of the Series, which may be Dollars or any
Foreign Currency, including, but not limited to, the ECU, and if such currency of denomination is a
composite currency other than the ECU, the agency or organization, if any, responsible for
overseeing such composite currency;




          (r) the designation of the currency, currencies or currency units in which payment of the
principal of and interest, if any, on the Securities of the Series will be made;




          (s) if payments of principal of or interest, if any, on the Securities of the Series are to be
made in one or more currencies or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect to such payments will be
determined;




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          (t) the manner in which the amounts of payment of principal of or interest, if any, on the
Securities of the Series will be determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;




          (u) the provisions, if any, relating to any security provided for the Securities of the
Series;




          (v) any addition to or change in the Events of Default which apply to any Securities of the
Series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 6.2;




          (w) any addition to or change in the covenants set forth in ARTICLE 4 or 5 which
applies to Securities of the Series;




          (x) any other terms of the Securities of the Series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 9.1, but which may
modify or delete any provision of this Indenture insofar as it applies to such Series);




          (y) any provisions granting special rights to holders when a specified event occurs; and




          (z) any depositories, interest rate calculation agents, exchange rate calculation agents or
other agents with respect to Securities of such Series if other than those appointed herein.




     All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture hereto or Officers’ Certificate.



     Section 2.3 Execution and Authentication.



          (a) Two Officers shall sign the Securities for the Company by manual or facsimile signature.




          (b) If an Officer whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.




          (c) A Security shall not be valid until authenticated by the manual signature of the Trustee
or an authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.




          (d) The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or
Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Company
or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in
writing.




          (e) Each Security shall be dated the date of its authentication unless otherwise provided by a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.




          (f) The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to
Section 2.2, except as provided in Section 2.8.




          (g) Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (i) the Board Resolution,
supplemental indenture




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hereto or Officers’ Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or of Securities
within that Series, (ii) an Officers’ Certificate complying with Section 10.4, and (iii) an
Opinion of Counsel complying with Section 10.4.




          (h) The Trustee shall have the right to decline to authenticate and deliver any Securities of
such Series: (i) if the Trustee, being advised by counsel, determines that such action may not
lawfully be taken; or (ii) if the Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee of directors and/or vice-presidents shall determine that
such action would expose the Trustee to personal liability to Holders of any then outstanding
Series of Securities.




          (i) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the Company or an
Affiliate.




     Section 2.4 Registrar and Paying Agent.



          (a) The Company shall maintain, with respect to each Series of Securities, at the place or
places specified with respect to such Series pursuant to Section 2.2, an office or agency
where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where
Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”)
and where notices and demands to or upon the Company in respect of the Securities of such Series
and this Indenture may be served (“Service Agent”). The Registrar shall keep a register with
respect to each Series of Securities and to their transfer and exchange. The Company will give
prompt written notice to the Trustee of the name and address, and any change in the name or
address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail
to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the
Trustee with the name and 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 appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.




          (b) The Company may also from time to time designate one or more co-registrars, additional
paying agents or additional service agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Company
of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so
specified pursuant to Section 2.2 for Securities of any Series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation or rescission and of
any change in the name or address of any such co-registrar, additional paying agent or additional
service agent. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes
any additional paying agent; and the term “Service Agent” includes any additional service agent.




          (c) The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service
Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be,
is appointed prior to the time Securities of that Series are first issued.




     Section 2.5 Paying Agent to Hold Money in Trust. The Company shall require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust,
for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal or interest on the Series of Securities, and will
notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying Agent.



     Section 2.6 Securityholder Lists. The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of



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Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment
date and at such other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of Securityholders of
each Series of Securities.



     Section 2.7 Transfer and Exchange.



          (a) Where Securities of a Series are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount of Securities of
the same Series, the Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and exchanges, the Trustee
shall authenticate Securities at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Section 2.11, 3.6 or 9.6).




          (b) Neither the Company nor the Registrar shall be required (i) to issue, register the
transfer of, or exchange Securities of any Series for the period beginning at the opening of
business fifteen days immediately preceding the mailing of a notice of redemption of Securities of
that Series selected for redemption and ending at the close of business on the day of such mailing,
or (ii) to register the transfer of or exchange Securities of any Series selected, called or being
called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.




     Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities.



          (a) If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.




          (b) If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and
make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.




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




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




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




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






     Section 2.9 Outstanding Securities.





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          (a) The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest on a Global Security effected by the Trustee in accordance with the provisions hereof and
those described in this Section as not outstanding.




          (b) If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding
until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona
fide purchaser.




          (c) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on
that date, then on and after that date such Securities of the Series cease to be outstanding and
interest on them ceases to accrue.




          (d) A Security does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security.




          (e) In determining whether the Holders of the requisite principal amount of outstanding
Securities have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for
such purposes shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.2.




     Section 2.10 Treasury Securities. In determining whether the Holders of the required
principal amount of Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver Securities of a Series owned by the Company or an Affiliate of
the Company shall be disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such request, demand, authorization, direction, notice,
consent or waiver, only Securities of a Series that the Trustee knows are so owned shall be so
disregarded.



     Section 2.11 Temporary Securities. Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a
Company Order. Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate
definitive Securities of the same Series and date of maturity in exchange for temporary Securities.
Until so exchanged, temporary securities shall have the same rights under this Indenture as the
definitive Securities.



     Section 2.12 Cancellation. The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or payment. The Trustee
shall cancel all Securities surrendered for transfer, exchange, payment, replacement or
cancellation and shall dispose of such canceled Securities (subject to the record retention
requirement of the Exchange Act) and deliver a certificate of such disposal to the Company, unless
the Company otherwise directs. The Company may not issue new Securities to replace Securities that
it has paid or delivered to the Trustee for cancellation.



     Section 2.13
Defaulted Interest. If the Company defaults in a payment of interest on a Series
of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any
interest payable on the defaulted interest, to the Persons who are Securityholders of the Series on
a subsequent special record date. The Company shall fix the record date and payment date. At
least 30 days before the record date, the Company shall mail to the Trustee and to each
Securityholder of the Series a notice that states the record date, the payment date and the amount
of interest to be paid. The Company may pay defaulted interest in any other lawful manner.




     Section 2.14 Global Securities.




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          (a) Terms of Securities. A Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate shall establish whether the Securities of a Series shall be issued in whole
or in part in the form of one or more Global Securities and the Depository for such Global Security
or Securities.




          (b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained
in Section 2.7 and in addition thereto, any Global Security shall be exchangeable pursuant
to Section 2.7 for Securities registered in the names of Holders other than the Depository
for such Security or its nominee only if (i) such Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Global Security or if at any time such
Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depository within 90 days of such event, (ii) the Company
executes and delivers to the Trustee an Officers’ Certificate to the effect that such Global
Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing. Any Global Security
that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as the Depository shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.




     Except as provided in this Section 2.14(b), a Global Security may not be transferred
except as a whole by the Depository with respect to such Global Security to a nominee of such
Depository, by a nominee of such Depository to such Depository or another nominee of such
Depository or by the Depository or any such nominee to a successor Depository or a nominee of such
a successor Depository.



          (c) Legend. Unless otherwise provided pursuant to Section 2.2, any Global
Security issued hereunder shall bear a legend in substantially the following form:



“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF THE DEPOSITORY OR A NOMINEE OF THE DEPOSITORY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITORY.”




          (d) Acts of Holders. The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under this Indenture.




          (e) Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of, premium,
if any, and interest, if any, on any Global Security shall be made to the Holder thereof.




          (f) Consents, Declaration and Directions. Except as provided in Section
2.14(e), the Company, the Trustee and any Agent shall treat a Person as the Holder of such
principal amount of outstanding Securities of such Series represented by a Global Security as shall
be specified in a written statement of the Depositary with respect to such Global Security, for
purposes of obtaining any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.




     Section 2.15 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
elements of identification printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.



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ARTICLE 3

REDEMPTION




     Section 3.1 Notice to Trustee. The Company may, with respect to any Series of
Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem
and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such
time and on such terms as provided for in such Securities. If a Series of Securities is redeemable
and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of
the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of
the redemption date and the principal amount of Series of Securities to be redeemed. The Company
shall give the notice at least 45 days before the redemption date (or such shorter notice as may be
acceptable to the Trustee).



     Section 3.2 Selection of Securities to be Redeemed. Unless otherwise indicated for a
particular Series by a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall
select the Securities of the Series to be redeemed in any manner that the Trustee deems fair and
appropriate. The Trustee shall make the selection from Securities of the Series outstanding not
previously called for redemption. The Trustee may select for redemption portions of the principal
of Securities of the Series that have denominations larger than $1,000. Securities of the Series
and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with
respect to Securities of any Series issuable in other denominations pursuant to Section
2.2(m), the minimum principal denomination for each Series and integral multiples thereof.
Provisions of this Indenture that apply to Securities of a Series called for redemption also apply
to portions of Securities of that Series called for redemption.



     Section 3.3 Notice of Redemption. Unless otherwise indicated for a particular Series
by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder whose Securities are to be redeemed and if any Bearer Securities
are outstanding, publish on one occasion a notice in an Authorized Newspaper. The notice shall
identify the Securities of the Series to be redeemed and shall state:



          (a) the redemption date;




          (b) the redemption price, or if not then ascertainable, the manner of calculation thereof;




          (c) the name and address of the Paying Agent;




          (d) that Securities of the Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;




          (e) if fewer than all the outstanding Securities of the Series are to be redeemed, the
identification and principal amounts of the particular Securities of the Series to be redeemed;




          (f) that interest on Securities of the Series called for redemption ceases to accrue on and
after the redemption date;




          (g) that no representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Securities; and




          (h) any other information as may be required by the terms of the particular Series or the
Securities of a Series being redeemed.




     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense.



     Section 3.4 Effect of Notice of Redemption. Once notice of redemption is mailed or
published as provided in Section 3.3, Securities of a Series called for redemption become
due and payable on the redemption date



12









 







and at the redemption price. A notice of redemption may not be conditional. If mailed in the
manner provided for in Section 3.3, the notice of redemption shall be conclusively presumed
to have been given whether or not the Holder receives such notice. Failure to give such notice or
any defect in the notice to any Holder shall not affect the validity of the notice or the
redemption. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption
price plus accrued interest to the redemption date.



     Section 3.5 Deposit of Redemption Price. On or before the redemption date, the
Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and
accrued interest, if any, on all Securities to be redeemed on that date.



     Section 3.6 Securities Redeemed in Part. Upon surrender of a Security that is
redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series
and the same maturity equal in principal amount to the unredeemed portion of the Security
surrendered.



ARTICLE 4

COVENANTS




     Section 4.1 Payment of Principal and Interest. The Company covenants and agrees for
the benefit of the Holders of each Series of Securities that it will duly and punctually pay the
principal of and interest, if any, on the Securities of that Series in accordance with the terms of
such Securities and this Indenture.



     Section 4.2 SEC Reports. The Company shall deliver to the Trustee within 30 days
after it files them with the SEC copies of the annual reports and of the information, documents,
and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section
314(a). Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).



     Section 4.3 Compliance Certificate.



          (a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company, an Officers’ Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge).




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




     Section 4.4 Stay, Extension and Usury Laws. The Company covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law has been enacted.



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     Section 4.5 Corporate Existence. Subject to ARTICLE 5, the Company will do or
cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Subsidiary in accordance with
the respective organizational documents of each Subsidiary and the rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any Subsidiary, if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to
the Holders.



     Section 4.6 Taxes. The Company shall, and shall cause each of its Subsidiaries to,
pay prior to delinquency all material taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings.



ARTICLE 5

SUCCESSORS




     Section 5.1 Company May Consolidate, Etc., Only on Certain Terms. The Company shall
not consolidate with, merge with or into any other person or convey, transfer or lease all or
substantially all of its properties and assets to any Person, unless:



          (a) either (i) the Company shall be the continuing corporation or (ii) the person (if other
than the Company) formed by such consolidation or into which the Company is merged or the person
which acquires by conveyance, transfer or lease all or substantially all of the properties and
assets of the Company (A) shall be a corporation organized and validly existing under the laws of
the United States or any State thereof or the District of Columbia and (B) shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all of the obligations of the Company under the Notes and this Indenture;




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




          (c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental
indenture, comply with this ARTICLE 5 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.




     For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the
properties and assets of one or more Subsidiaries (other than to the Company or another
Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially
all of the properties and assets of the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.



     Section 5.2 Successor Corporation Substituted. The successor person formed by such
consolidation or into which the Company is merged or the successor person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor had been
named as the Company herein; and thereafter, except in the case of a lease, the Company shall be
discharged from all obligations and covenants under this Indenture. The Company, the Trustee and
the successor person shall enter into a supplemental indenture to evidence the succession and
substitution of such successor person and such discharge and release of the Company.



ARTICLE 6

DEFAULTS AND REMEDIES




     Section 6.1 Events of Default. “Event of Default”, wherever used herein with respect
to Securities of any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental




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indenture hereto or Officers’ Certificate, it is provided that such Series shall not have the
benefit of said Event of Default:




          (a) default in the payment of any interest on any Security of that Series when it becomes due
and payable, and continuance of such default for a period of 30 days (unless the entire amount of
such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the
expiration of such period of 30 days); or




          (b) default in the payment of the principal of any Security of that Series at its Maturity; or




          (c) default in the deposit of any sinking fund payment, when and as due in respect of any
Security of that Series; or




          (d) default in the performance or breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty that has been included in this Indenture solely for
the benefit of a Series of Securities other than that Series), which default continues uncured for
a period of 60 days after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of
the outstanding Securities of that Series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or




          (e) the Company or any of its Significant Subsidiaries pursuant to or within the meaning of
any Bankruptcy Law:




               (i) commences a voluntary case,



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



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



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



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




               (i) is for relief against the Company or any of its Significant Subsidiaries in an involuntary
case,



               (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries or for all or
substantially all of its property, or



               (iii) orders the liquidation of the Company or any of its Significant Subsidiaries, and the
order or decree remains unstayed and in effect for 90 days; or



          (g) any other Event of Default provided with respect to Securities of that Series, which is
specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in
accordance with Section 2.2.




     The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.



     Section 6.2 Acceleration of Maturity; Rescission and Annulment.



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          (a) If an Event of Default with respect to Securities of any Series at the time outstanding
occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or
(f)), then in every such case the Trustee or the Holders of not less than 25% in principal
amount of the outstanding Securities of that Series may declare the principal amount (or, if any
Securities of that Series are Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of
the Securities of that Series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in Section 6.1(e) or (f) shall occur, the
principal amount (or specified amount) of and accrued and unpaid interest, if any, on all
outstanding Securities shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.




          (b) At any time after such a declaration of acceleration with respect to 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 provided, the Holders of a majority in principal amount of the
outstanding Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:




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



                    (A) all overdue interest, if any, on all Securities of that
Series,



                    (B) the principal of any Securities of that Series which have
become due otherwise than by
such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in
such Securities,



                    (C) to the extent that payment of such interest is lawful,
interest upon any overdue principal
and overdue interest at the rate or rates prescribed therefor in such Securities, and



                    (D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and



               (ii) all Events of Default with respect to Securities of that Series, other than the
non-payment of the principal (or a specified portion of the principal) of Securities of that Series
which have become due solely by such declaration of acceleration, have been cured or waived as
provided in Section 6.13.



          (c) No such rescission shall affect any subsequent Default or impair any right consequent
thereon.




     Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The
Company covenants that if



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




          (b) default is made in the payment of principal of any Security at the Maturity thereof, or




          (c) default is made in the deposit of any sinking fund payment when and as due by the terms of
a Security,



then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal or any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient to


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




     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.



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



     Section 6.4 Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,



          (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid
in respect of the Securities and to file such 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 of
the Holders allowed in such judicial proceeding, and




          (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.7.




     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 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 6.5 Trustee May Enforce Claims Without Possession of Securities. All rights
of action and claims under this Indenture or the Securities may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, 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.



     Section 6.6 Application of Money Collected. Any money collected by the Trustee
pursuant to this ARTICLE shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:



     First: To the payment of all amounts due the Trustee under Section 7.7; and



17









 





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



     Third: To the Company.



     The Trustee may fix a record date and payment date for any payment to Securityholders pursuant
to this Section 6.6. At least 15 days before such record date, the Company shall mail to
each Securityholder and the Trustee a notice that states the record date, the payment date and the
amount to be paid.



     Section 6.7 Limitation on Suits. No Holder of any Security of any Series shall have
any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy hereunder, unless



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




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




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




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




          (e) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the outstanding Securities
of that Series;



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




     Section 6.8 Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal of and interest, if
any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such Holder.



     Section 6.9 Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.



     Section 6.10 Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in
Section 2.8, 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



18









 







and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.



     Section 6.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of
any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this ARTICLE or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.



     Section 6.12 Control by Holders. The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such Series; provided that



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




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




          (c) subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer
of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability.




     Section 6.13 Waiver of Past Defaults. Subject to Section 6.2, the Holders of
not less than a majority in principal amount of the outstanding Securities of any Series may on
behalf of the Holders of all the Securities of such Series waive any past Default hereunder with
respect to such Series and its consequences, except a Default in the payment of the principal of or
interest on any Security of such Series; provided, however, that the Holders of a majority in
principal amount of the outstanding Securities of any Series may rescind an acceleration of the
Securities of such Series and its consequences, including any related payment default that resulted
from such acceleration. 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 6.14 Undertaking for Costs. All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or interest on any Security on
or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of
redemption, on the redemption date).



ARTICLE 7

TRUSTEE




     Section 7.1 Duties of Trustee.



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




19









 








          (b) Except during the continuance of an Event of Default:




               (i) The Trustee need perform only those duties that are specifically set forth in this
Indenture and no others.



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



          (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:




               (i) This paragraph does not limit the effect of paragraph (b) of this Section.



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



               (iii) The Trustee shall not be liable with respect to any action taken, suffered or omitted to
be taken by it with respect to Securities of any Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the outstanding Securities of such
Series relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such Series.



          (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.




          (e) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




          (g) No provision of this Indenture shall require the Trustee to risk its own funds or
otherwise incur any financial liability in the performance of any of its duties, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk is not reasonably assured to it.




          (h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the
protections and immunities as are set forth in paragraphs (a), (b) and (c) of this Section with
respect to the Trustee.




          (i) Every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA and the provisions of this ARTICLE 7 shall apply to the Trustee in
its role as Registrar, Paying Agent and Service Agent.




     Section 7.2 Rights of Trustee.



          (a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been signed or presented by
the proper




20









 







Person. The Trustee need not investigate any fact or matter stated in the document. The
Trustee may, however, in its discretion make such further inquiry or investigation into such facts
or matters as it may see fit.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.




          (c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care. No Depository shall be deemed an agent of the
Trustee and the Trustee shall not be responsible for any act or omission by any Depository.




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers; provided that the Trustee’s
conduct does not constitute willful misconduct or negligence.




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




          (f) The permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as a duty unless so specified herein.




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




          (h) In addition, the Trustee shall not be deemed to have knowledge of any Default or Event of
Default except (i) any Event of Default occurring pursuant to Sections 6.1(a), 6.1(b), 6.1(c)
and 4.3 hereof or (ii) any Default or Event of Default of which the Trustee shall have received
written notification in the manner set forth in this Indenture or a Responsible Officer of the
Trustee shall have obtained actual knowledge. Delivery of reports, information and documents to
the Trustee under Section 4.2 is for informational purposes only and the information and
the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information
contained therein, or determinable from information contained therein including the Company’s
compliance with any of their covenants thereunder (as to which the Trustee is entitled to rely
exclusively on an Officers’ Certificate).




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




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




     Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
an Affiliate with the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee is also subject to Sections 7.10 and 7.11.



     Section 7.4 Trustee’s Disclaimer. The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities, it shall not be accountable for the
Company’s use of the proceeds from the Securities, and it shall not be responsible for any
statement in any Security other than its authentication.



     Section 7.5 Notice of Defaults. If a Default or Event of Default occurs and is
continuing with respect to the Securities of any Series and if it is known to a Responsible Officer
of the Trustee, the Trustee shall mail to



21









 







each Securityholder of the Securities of that Series and, if any Bearer Securities are
outstanding, publish on one occasion in an Authorized Newspaper, notice of a Default or Event of
Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has
knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default
in payment of principal of or interest on any Security of any Series, the Trustee may withhold the
notice if and so long as its corporate trust committee or a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of Securityholders of that
Series.



     Section 7.6 Reports by Trustee to Holders.



          (a) Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear on the register kept by the Registrar and, if
any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated as
of such May 15, in accordance with, and to the extent required under, TIA Section 313.




          (b) A copy of each report at the time of its mailing to Securityholders of any Series shall be
filed with the SEC and each stock exchange on which the Securities of that Series are listed. The
Company shall promptly notify the Trustee when Securities of any Series are listed on any stock
exchange and of any delisting thereof.




     Section 7.7 Compensation and Indemnity.



          (a) The Company shall pay to the Trustee from time to time reasonable compensation for its
services. The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s agents and counsel.




          (b) The Company shall indemnify the Trustee (including the cost of defending itself) against
any loss, liability, claim, damage, cost or expense incurred by it except as set forth in the next
paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders,
agents, successors and assigns of the Trustee.




          (c) The Company need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee
through its own willful misconduct, negligence or bad faith.




          (d) To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Securities of any Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on particular Securities of that Series.




          (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.1(e) or (f) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.




          (f) The provisions of this Section 7.7 shall survive the resignation or removal of the
Trustee and the termination of this Indenture.




     Section 7.8 Replacement of Trustee.



          (a) A resignation or removal of the Trustee and appointment of a successor Trustee shall
become effective only upon the successor Trustee’s acceptance of appointment as provided in this
Section.




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          (b) The Trustee may resign with respect to the Securities of one or more Series by so
notifying the Company. The Holders of a majority in principal amount of the Securities of any
Series may remove the Trustee with respect to that Series by so notifying the Trustee and the
Company. The Company may remove the Trustee with respect to Securities of one or more Series if:




               (i) the Trustee fails to comply with Section 7.10;



               (ii) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;



               (iii) a Custodian or public officer takes charge of the Trustee or its property; or



               (iv) the Trustee becomes incapable of acting.



          (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.




          (d) If a successor Trustee with respect to the Securities of any one or more Series does not
take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.




          (e) If the Trustee with respect to the Securities of any one or more Series fails to comply
with Section 7.10, any Securityholder who has been a bona fide Holder of a Security of the
applicable Series for at least six months may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.




          (f) A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee subject to the lien provided for in
Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to
each Series of Securities for which it is acting as Trustee under this Indenture. A successor
Trustee shall mail a notice of its succession to each Securityholder of each such Series and, if
any Bearer Securities are outstanding, publish such notice on one occasion in an Authorized
Newspaper. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company’s obligations under Section 7.7 hereof shall continue for the benefit of the
retiring trustee with respect to expenses and liabilities incurred by it prior to such replacement.




     Section 7.9 Successor Trustee by Merger, etc.



          (a) If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.




          (b) In case at the time such successor or successors by merger, conversion or consolidation 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 such successor to
the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such certificates 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.




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     Section 7.10 Eligibility; Disqualification. This Indenture shall always have a
Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall
always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA Section 310(b).



     Section 7.11 Preferential Collection of Claims Against Company. The Trustee is
subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.



ARTICLE 8

SATISFACTION AND DISCHARGE; DEFEASANCE




     Section 8.1 Satisfaction and Discharge of Indenture. This Indenture shall upon
Company Order cease to be of further effect (except as hereinafter provided in this
Section 8.1) as it relates to all Securities of any Series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture as it relates to all Securities of any Series, when



          (a) either




               (i) all Securities of such Series theretofore authenticated and delivered (other than
Securities that have been destroyed, lost or stolen and that have been replaced or paid) 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



                    (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, or



                    (D) are deemed paid and discharged pursuant to
Section 8.3, as applicable;


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 an amount sufficient for the purpose of paying and discharging
the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) 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 hereunder by the Company;
and




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




          (d) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.7, and, if money shall have been deposited with the
Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1
8.2 and 8.5 shall survive.




     Section 8.2 Application of Trust Funds; Indemnification.



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          (a) Subject to the provisions of Section 8.5, all money deposited with the Trustee
pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money
received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with or received by the Trustee or to make
Mandatory Sinking Fund Payments or analogous payments as contemplated by Section 8.3 or
8.4.




          (b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations
deposited pursuant to Section 8.3 or 8.4 or the interest and principal received in respect
of such obligations other than any payable by or on behalf of Holders.




          (c) The Trustee shall deliver or pay to the Company from time to time upon Company Request any
U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in
Section 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof delivered to the Trustee,
are then in excess of the amount thereof which then would have been required to be deposited for
the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money
were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations or Foreign Government Obligations held under this Indenture.




     Section 8.3 Legal Defeasance of Securities of any Series. Unless this
Section 8.3 is otherwise specified pursuant to Section 2.2 to be inapplicable to
Securities of any Series, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates
to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at
the expense of the Company, shall, at Company Request, execute proper instruments acknowledging the
same), except as to:



          (a) the rights of Holders of Securities of such Series to receive, from the trust funds
described in subparagraph (d) hereof, (i) payment of the principal of and each installment of
principal of and interest on the outstanding Securities of such Series on the Stated Maturity of
such principal or installment of principal or interest and (ii) the benefit of any Mandatory
Sinking Fund Payments applicable to the Securities of such Series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and the Securities of such
Series;




          (b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5;




          (c) the rights, powers, trust and immunities of the Trustee hereunder; provided that the
following conditions shall have been satisfied:




          (d) the Company shall have deposited or caused to be deposited irrevocably with the Trustee 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) in the case
of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or
currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations,
or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a
composite currency), money and/or Foreign Government Obligations, which through the payment of
interest and principal in respect thereof, in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash, 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 each installment of principal
(including mandatory sinking fund or analogous payments) of and interest, if any, on all the
Securities of such Series on the dates such installments of interest or principal are due;




25









 








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




          (f) 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 during the preference period applicable
to the Company;




          (g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel to the effect that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) 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 Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not occurred;




          (h) such deposit shall not result in the trust arising from such deposit constituting an
investment company (as defined in the Investment Company Act of 1940, as amended), or such trust
shall be qualified under such Act or exempt from regulation thereunder; and




          (i) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.




     Section 8.4 Covenant Defeasance. Unless this Section 8.4 is otherwise
specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, on and
after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the
Company may omit to comply with any term, provision or condition set forth under Sections 4.2,
4.3, 4.4, 4.5 (other than with respect to the Company) and 4.6, as well as any
additional covenants contained in a supplemental indenture hereto for a particular Series of
Securities or a Board Resolution or an Officers’ Certificate delivered pursuant to
Section 2.2 (and the failure to comply with any such covenants shall not constitute a
Default or Event of Default under Section 6.1) and the occurrence of any event described in
clause (e) of Section 6.1 shall not constitute a Default or Event of Default hereunder,
with respect to the Securities of such Series; provided that the following conditions shall have
been satisfied:



          (a) with reference to this Section 8.4, the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars,
cash in Dollars (or such other money or currencies as shall then be legal tender in the United
States) and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series
denominated in a Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof delivered to the Trustee,
to pay principal and interest, if any, on and any mandatory sinking fund in respect of the
Securities of such Series on the dates such installments of interest or principal are due;




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




          (c) 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 during the preference period applicable
to the Company;




          (d) the Company shall have delivered to the Trustee an Opinion of Counsel confirming that
Holders of the Securities of such Series will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and 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
deposit and defeasance had not occurred; and




26









 








          (e) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.




     Section 8.5 Repayment to Company. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property law designates
another Person.



     Section 8.6 Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Section 8.1, 8.3 or 8.4, as the
case may be, by reason of any legal proceeding or by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.1, 8.3 or 8.4, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 8.1, 8.3 or 8.4, as the case may be;
provided, however, that if the Company makes any payment of principal of, premium, if any, or
interest on any Securities because of reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent.



ARTICLE 9

AMENDMENTS AND WAIVERS




     Section 9.1 Without Consent of Holders. The Company and the Trustee may amend or
supplement this Indenture or the Securities of one or more Series without the consent of any
Securityholder:



          (a) to cure any ambiguity, omission, defect or inconsistency;




          (b) to comply with ARTICLE 5;




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




          (d) to secure the Securities or any Series;




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




          (f) to make any change that does not adversely affect the rights of any Securityholder in any
material respect;




          (g) to provide for the issuance of and establish the form and terms and conditions of
Securities of any Series as permitted by this Indenture;




          (h) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more Series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; or




          (i) to comply with requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA.




     Section 9.2 With Consent of Holders.



          (a) The Company and the Trustee may enter into a supplemental indenture hereto with the
written consent of the Holders of at least a majority in principal amount of the outstanding
Securities of each Series



27









 






affected by such supplemental indenture (including consents obtained in connection with a
tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture hereto or of modifying in any manner the rights of the
Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at
least a majority in principal amount of the outstanding Securities of each Series affected by such
waiver by notice to the Trustee (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series) may waive compliance by the Company with any
provision of this Indenture or the Securities with respect to such Series.




          (b) It shall not be necessary for the consent of the Holders of Securities under this
Section 9.2 to approve the particular form of any proposed supplemental indenture hereto or
waiver, but it shall be sufficient if such consent approves the substance thereof. After a
supplemental indenture hereto or waiver under this Section becomes effective, the Company shall
mail to the Holders of Securities affected thereby and, if any Bearer Securities affected thereby
are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly describing
the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.




     Section 9.3 Limitations. Without the consent of each Securityholder affected, an
amendment or waiver may not:



          (a) change the amount of Securities whose Holders must consent to an amendment, supplement or
waiver;




          (b) reduce the rate of or extend the time for payment of interest (including default interest)
on any Security;




          (c) reduce the principal or change the Stated Maturity of any Security or reduce the amount
of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;




          (d) reduce the principal amount of a Security issued with original issue discount or any other
Security payable upon acceleration of the maturity thereof;




          (e) waive a Default or Event of Default in the payment of the principal of or interest, if
any, on any Security (except a rescission of acceleration of the Securities of any Series by the
Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);




          (f) make the principal of or interest, if any, on any Security payable in any currency other
than that stated in the Security;




          (g) make any change in Section 6.8, 6.13, 9.3 (this sentence), 10.15 or 10.16;




          (h) waive a redemption payment with respect to any Security or change any of the provisions
with respect to the redemption of any Securities;




          (i) make any change with respect to the ranking of any Securities relative to any other Debt
or other obligation of the Company;




          (j) release any security interest that may have been granted in favor of the Securityholder;
or




          (k) make any change in a Securityholder’s ability to convert or exchange Securities in any
material respect.




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     Section 9.4 Compliance with Trust Indenture Act. Every amendment to this Indenture or
the Securities of one or more Series shall be set forth in a supplemental indenture hereto that
complies with the TIA as then in effect.



     Section 9.5 Revocation and Effect of Consents.



          (a) Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security
is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same Debt as the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective.




          (b) Any amendment or waiver once effective shall bind every Securityholder of each Series
affected by such amendment or waiver unless it is of the type described in any of clauses
(a) through (k) of Section 9.3. In that case, the amendment or waiver shall bind each
Holder of a Security who has consented to it and every subsequent Holder of a Security or portion
of a Security that evidences the same Debt as the consenting Holder’s Security.




          (c) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Securityholders entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed,
then notwithstanding the immediately preceding paragraph, those Persons who were Securityholders at
such record date (or their duly assigned proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such action, whether or
not such Persons continue to be Holders after such record date.




     Section 9.6 Notation on or Exchange of Securities. If an amendment changes the terms
of any Security of any Series, the Trustee may require the Holder of the Security to deliver such
Security to the Trustee. The Trustee may place an appropriate notation on the Security regarding
the changed terms and return such Security to the Holder. Alternatively, the Company in exchange
for Securities of any Series may issue and the Trustee shall authenticate upon request new
Securities of that Series that reflect the amendment or waiver.



     Section 9.7 Trustee Protected. In executing, or accepting the additional trusts
created by, any supplemental indenture hereto permitted by this ARTICLE or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be provided with, and (subject
to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel and an
Officer’s Certificate stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee shall sign all supplemental indentures hereto, except
that the Trustee need not sign any supplemental indenture hereto that adversely affects its rights.



     Section 9.8 Payment for Consent. Neither the Company nor any Affiliate of the Company
shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture applicable to the Securities of any
Series or the Securities of any Series unless such consideration is offered to be paid to all
Holders of the Securities of such Series that so consent, waive or agree to amend in the time frame
set forth in solicitation documents relating to such consent.



ARTICLE 10

MISCELLANEOUS




     Section 10.1 Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.



     Section 10.2 Notices.



29









 





          (a) Any notice or communication by the Company or the Trustee to the other is duly given if in
writing and delivered in person or mailed by first-class mail:




	 	 	 
	if to the Company:

	 	McMoRan Exploration Co.
	 

	 	1615 Poydras Street
	 

	 	New Orleans, Louisiana 70112
	 

	 	Attention: Kathleen L. Quirk
	 
	 	 
	if to the Trustee:

	 	The Bank of New York
	 

	 	101 Barclay Street, 8W
	 

	 	New York, NY 10286
	 

	 	Attention: Corporate Trust Administration






          (b) The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.




          (c) Any notice or communication to a Securityholder shall be mailed by first-class mail to his
address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding,
published in an Authorized Newspaper. Failure to mail a notice or communication to a
Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to
other Securityholders of that or any other Series.




          (d) If a notice or communication is mailed or published in the manner provided above, within
the time prescribed, it is duly given, whether or not the Securityholder receives it.




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




     Section 10.3 Communication by Holders with Other Holders. Securityholders of any
Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or
any other Series with respect to their rights under this Indenture or the Securities of that Series
or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection
of TIA Section 312(c).



     Section 10.4 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:



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




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




     Section 10.5 Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and 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




30









 








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




     Section 10.6 Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable
rules and set reasonable requirements for its functions.



     Section 10.7 Legal Holidays. Unless otherwise provided by Board Resolution,
supplemental indenture hereto or Officers’ Certificate for a particular Series, a “Legal Holiday”
is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.



     Section 10.8 No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a Security waives
and releases all such liability. The waiver and release are part of the consideration for the
issue of the Securities.



     Section 10.9 Counterparts. This Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.



     Section 10.10 Governing Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE,
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.



     Section 10.11 No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret another indenture, loan or Debt agreement of the Company or a Subsidiary. Any
such indenture, loan or Debt agreement may not be used to interpret this Indenture.



     Section 10.12 Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.



     Section 10.13 Severability. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     Section 10.14 Table of Contents, Headings, Etc. The Table of Contents, Cross
Reference Table, and headings of the ARTICLES and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and shall in no way modify
or restrict any of the terms or provisions hereof.



     Section 10.15 Securities in a Foreign Currency or in ECU.



          (a) Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 2.2 with respect to a particular Series
of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series or all Series
affected by a particular action at the time outstanding and, at such time, there are outstanding
Securities of any Series which are denominated in a coin or currency other than Dollars (including
ECUs), then the principal amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this
Section 10.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York
City for cable transfers of that currency as published by the Federal Reserve Bank of New York;
provided, however, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Union (or any successor thereto) as published in the
Official Journal



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of the European Union (such publication or any successor publication, the “Journal”). If such
Market Exchange Rate is not available for any reason with respect to such currency, the Trustee
shall use, in its sole discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs, rates of exchange from
one or more major banks in The City of New York or in the country of issue of the currency in
question or, in the case of ECUs, in Luxembourg or such other quotations or, in the case of ECUs,
rates of exchange as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a Series denominated in currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.




          (b) All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Company and all Holders.




     Section 10.16 Judgment Currency. The Company agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal of or interest or
other amount on the Securities of any Series (the “Required Currency”) into a currency in which a
judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a New York Banking Day, then, the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the New York Banking
Day preceding the day on which final unappealable judgment is entered and (b) its obligations under
this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with
Subsection (a)), in any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York
Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or executive order to
close.



     Section 10.17 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.



ARTICLE 11

SINKING FUNDS




     Section 11.1 Applicability of Article.



          (a) The provisions of this ARTICLE shall be applicable to any sinking fund for the retirement
of the Securities of a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.




          (b) The minimum amount of any sinking fund payment provided for by the terms of the Securities
of any Series is herein referred to as a “Mandatory Sinking Fund Payment” and any other amount
provided for by the terms of Securities of such Series is herein referred to as an “Optional
Sinking Fund Payment”. If provided for by the terms of Securities of any Series, the cash amount
of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each
sinking fund payment shall be applied to the redemption of Securities of any Series as provided for
by the terms of the Securities of such Series.




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     Section 11.2 Satisfaction of Sinking Fund Payments with Securities. The Company may,
in satisfaction of all or any part of any sinking fund payment with respect to the Securities of
any Series to be made pursuant to the terms of such Securities (a) deliver outstanding Securities
of such Series to which such sinking fund payment is applicable (other than any of such Securities
previously called for mandatory sinking fund redemption) and (b) apply as credit Securities of such
Series to which such sinking fund payment is applicable and which have been redeemed either at the
election of the Company pursuant to the terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted Optional Sinking Fund Payments or
other optional redemptions pursuant to the terms of such Securities; provided that such Securities
have not been previously so credited. Such Securities shall be received by the Trustee, together
with an Officers’ Certificate with respect thereto, not later than 15 days prior to the date on
which the Trustee begins the process of selecting Securities for redemption, and shall be credited
for such purpose by the Trustee at the price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments
pursuant to this Section 11.2, the principal amount of Securities of such Series to be
redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption, except upon receipt of a Company Order that
such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment; provided, however, that the Trustee or such
Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the
Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Securities of that Series purchased by the Company having an unpaid
principal amount equal to the cash payment required to be released to the Company.



     Section 11.3 Redemption of Securities for Sinking Fund. Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture hereto or Officers’ Certificate
in respect of a particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying
the amount of the next ensuing Mandatory Sinking Fund Payment for that Series pursuant to the terms
of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that
Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to
the next ensuing Mandatory Sinking Fund Payment, and the Company shall thereupon be obligated to
pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officers’ Certificate in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner specified in
Section 3.2 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.3. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and in the manner stated
in Sections 3.4, 3.5 and 3.6.



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



	 	 	 	 	 	 	 
	 	 	McMoRan EXPLORATION CO.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Kathleen L. Quirk	 	 
	 

	 	Name:
	 	 

Kathleen L. Quirk
	 	 
	 

	 	Title:
	 	Senior Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	The Bank of New York, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Robert A. Massimillo	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Robert A. Massimillo	 	 
	 

	 	Title:	 	Vice President	 	 






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