Blueprint





 







Exhibit 4.3

 



Yuma Energy, Inc.,

 



as Issuer

 



and

 



Any Subsidiary Guarantors Party Hereto

 



and

 



                    ,

 



as Trustee

 



SUBORDINATED INDENTURE

 



Dated as of
                    ,
20    



 



 





 


 

 




 








 







TABLE OF CONTENTS


 


	


ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION  

	


1


	


Section 1.01.

	


Definitions.

	


1


	


Section 1.02.

	


Officers’ Certificates and Opinions of Counsel

	


6


	


Section 1.03.

	


Form of Documents Delivered to Trustee

	


7


	


Section 1.04.

	


Acts of Holders; Record Dates

	


7


	


Section 1.05.

	


Notices, Etc., to Trustee and Company

	


9



	


Section 1.06.

	


Notice to Holders; Waiver

	


9


	


Section 1.07.

	


Conflict with Trust Indenture Act

	


9


	


Section 1.08.

	


Effect of Headings and Table of Contents

	


9


	


Section 1.09.

	


Successors and Assigns

	


10


	


Section 1.10.

	


Separability Clause

	


10



	


Section 1.11.

	


Benefits of Indenture

	


10


	


Section 1.12.

	


Governing Law

	


10


	


Section 1.13.

	


Legal Holidays

	


10


	


Section 1.14.

	


No Recourse Against Others

	


10


	


Section 1.15.

	


Indenture May Be Executed in Counterparts

	


10


	


ARTICLE TWO SECURITY FORMS  

	


11


	


Section 2.01.

	


Forms Generally

	


11


	


Section 2.02.

	


Form of Face of Security

	


11


	


Section 2.03.

	


Form of Reverse of Security

	


12


	


Section 2.04.

	


Form of Notation of Subsidiary Guarantee

	


15


	


Section 2.05.

	


Form of Legend for Global Securities

	


16


	


Section 2.06.

	


Form of Trustee’s Certificate of Authentication

	


16


	


Section 2.07.

	


Form of Conversion Notice

	


16


	


ARTICLE THREE THE SECURITIES  

	


17


	


Section 3.01.

	


Amount Unlimited; Issuable in Series

	


17


	


Section 3.02.

	


Denominations

	


19


	


Section 3.03.

	


Execution, Authentication, Delivery and Dating

	


19


	


Section 3.04.

	


Temporary Securities

	


20


	


Section 3.05.

	


Registration, Registration of Transfer and Exchange

	


21


	


Section 3.06.

	


Mutilated, Destroyed, Lost and Stolen Securities

	


22


	


Section 3.07.

	


Payment of Interest; Interest Rights Preserved

	


23


	


Section 3.08.

	


Persons Deemed Owners

	


23


	


Section 3.09.

	


Cancellation

	


24


	


Section 3.10.

	


Computation of Interest

	


24






 



 

ii







 





 

 


	


ARTICLE FOUR SATISFACTION AND DISCHARGE  

	


24


	


Section 4.01.

	


Satisfaction and Discharge of Indenture

	


24


	


Section 4.02.

	


Application of Trust Money

	


25


	


ARTICLE FIVE REMEDIES  

	


25


	


Section 5.01.

	


Events of Default

	


25


	


Section 5.02.

	


Acceleration of Maturity; Rescission and Annulment

	


27


	


Section 5.03.

	


Collection of Indebtedness and Suits for Enforcement by
Trustee

	


27


	


Section 5.04.

	


Trustee May File Proofs of Claim

	


28


	


Section 5.05.

	


Trustee May Enforce Claims Without Possession of
Securities

	


28


	


Section 5.06.

	


Application of Money Collected

	


28


	


Section 5.07.

	


Limitation on Suits

	


29


	


Section 5.08.

	


Unconditional Contractual Right of Holders to Receive Principal,
Premium and Interest

	


29


	


Section 5.09.

	


Restoration of Rights and Remedies

	


29


	


Section 5.10.

	


Rights and Remedies Cumulative

	


30


	


Section 5.11.

	


Delay or Omission Not Waiver

	


30


	


Section 5.12.

	


Control by Holders

	


30


	


Section 5.13.

	


Waiver of Past Defaults

	


30


	


Section 5.14.

	


Undertaking for Costs

	


30


	


Section 5.15.

	


Waiver of Usury, Stay or Extension Laws

	


31


	


ARTICLE SIX THE TRUSTEE  

	


31


	


Section 6.01.

	


Certain Duties and Responsibilities

	


31


	


Section 6.02.

	


Notice of Defaults

	


31


	


Section 6.03.

	


Certain Rights of Trustee

	


31


	


Section 6.04.

	


Not Responsible for Recitals or Issuance of Securities

	


32


	


Section 6.05.

	


May Hold Securities

	


32


	


Section 6.06.

	


Money Held in Trust

	


32


	


Section 6.07.

	


Compensation and Reimbursement

	


32


	


Section 6.08.

	


Conflicting Interests

	


33


	


Section 6.09.

	


Corporate Trustee Required; Eligibility

	


33


	


Section 6.10.

	


Resignation and Removal; Appointment of Successor

	


33


	


Section 6.11.

	


Acceptance of Appointment by Successor

	


34


	


Section 6.12.

	


Merger, Conversion, Consolidation or Succession to
Business

	


35


	


Section 6.13.

	


Preferential Collection of Claims Against Company and Subsidiary
Guarantors

	


35


	


Section 6.14.

	


Appointment of Authenticating Agent

	


35


	


ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
COMPANY  

	


36


	


Section 7.01.

	


Company to Furnish Trustee Names and Addresses of
Holders

	


36


	


Section 7.02.

	


Preservation of Information; Communications to Holders

	


36


	


Section 7.03.

	


Reports by Trustee

	


37


	


Section 7.04.

	


Reports by Company and Subsidiary Guarantors

	


37






 



 

iii







 





 

 


	


ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE  

	


37


	


Section 8.01.

	


Company May Consolidate, Etc., Only on Certain Terms

	


37


	


Section 8.02.

	


Subsidiary Guarantors May Consolidate, Etc., Only on Certain
Terms

	


38


	


Section 8.03.

	


Successor Substituted

	


38


	


ARTICLE NINE SUPPLEMENTAL INDENTURES  

	


39


	


Section 9.01.

	


Supplemental Indentures Without Consent of Holders

	


39


	


Section 9.02.

	


Supplemental Indentures With Consent of Holders

	


40


	


Section 9.03.

	


Execution of Supplemental Indentures

	


41


	


Section 9.04.

	


Effect of Supplemental Indentures

	


41


	


Section 9.05.

	


Conformity With Trust Indenture Act

	


41


	


Section 9.06.

	


Reference in Securities to Supplemental Indentures

	


41


	


ARTICLE TEN COVENANTS

	
 

	


41


	


Section 10.01.

	


Payment of Principal, Premium and Interest

	


41


	


Section 10.02.

	


Maintenance of Office or Agency

	


42


	


Section 10.03.

	


Money for Securities Payments to be Held in Trust

	


42


	


Section 10.04.

	


Statement by Officers as to Default

	


43


	


Section 10.05.

	


Existence

	


43


	


Section 10.06.

	


Maintenance of Properties

	


43


	


Section 10.07.

	


Payment of Taxes and Other Claims

	


43


	


Section 10.08.

	


Maintenance of Insurance

	


43


	


Section 10.09.

	


Waiver of Certain Covenants

	


44


	


ARTICLE ELEVEN REDEMPTION OF SECURITIES  

	


44


	


Section 11.01.

	


Applicability of Article

	


44


	


Section 11.02.

	


Election to Redeem; Notice to Trustee

	


44


	


Section 11.03.

	


Selection by Trustee of Securities to be Redeemed

	


44


	


Section 11.04.

	


Notice of Redemption

	


45


	


Section 11.05.

	


Deposit of Redemption Price

	


46


	


Section 11.06.

	


Securities Payable on Redemption Date

	


46


	


Section 11.07.

	


Securities Redeemed in Part

	


46


	


ARTICLE TWELVE SUBORDINATION OF SECURITIES  

	


46


	


Section 12.01.

	


Applicability of Article

	


46


	


Section 12.02.

	


Securities Subordinate to Senior Debt

	


46


	


Section 12.03.

	


Payment Over of Proceeds Upon Dissolution, Etc.

	


47


	


Section 12.04.

	


No Payment When Senior Debt of the Company in Default

	


47


	


Section 12.05.

	


Payment Permitted If No Default

	


48


	


Section 12.06.

	


Subrogation to Rights of Holders of Senior Debt of the
Company

	


49


	


Section 12.07.

	


Provisions Solely to Define Relative Rights

	


49


	


Section 12.08.

	


Trustee to Effectuate Subordination

	


49


	


Section 12.09.

	


No Waiver of Subordination Provisions

	


49


	


Section 12.10.

	


Notice to Trustee

	


50


	


Section 12.11.

	


Reliance on Judicial Order or Certificate of Liquidating
Agent

	


50






 



 

iv







 





 

 


	


Section 12.12.

	


Trustee Not Fiduciary for Holders of Senior Debt of the
Company

	


50


	


Section 12.13.

	


Rights of Trustee as Holder of Senior Debt of the Company;
Preservation of Trustee’s Rights

	


50


	


Section 12.14.

	


Article Applicable to Paying Agents

	


51


	


Section 12.15.

	


Defeasance of this Article Twelve

	


51


	


ARTICLE THIRTEEN SUBSIDIARY GUARANTEES  

	


51


	


Section 13.01.

	


Applicability of Article

	


51


	


Section 13.02.

	


Subsidiary Guarantees

	


51


	


Section 13.03.

	


Execution and Delivery of Notations of Subsidiary
Guarantees

	


53


	


Section 13.04.

	


Release of Subsidiary Guarantors

	


53


	


Section 13.05.

	


Additional Subsidiary Guarantors

	


53


	


Section 13.06.

	


Limitation on Liability

	


54


	


ARTICLE FOURTEEN SUBORDINATION OF SUBSIDIARY GUARANTEES
 

	


54


	


Section 14.01.

	


Applicability of Article

	


54


	


Section 14.02.

	


Subsidiary Guarantees Subordinate to Senior Debt of Subsidiary
Guarantors

	


54


	


Section 14.03.

	


Payment Over of Proceeds Upon Dissolution, Etc.

	


54


	


Section 14.04.

	


No Payment When Senior Debt of such Subsidiary Guarantor in
Default

	


55


	


Section 14.05.

	


Payment Permitted If No Default

	


56


	


Section 14.06.

	


Subrogation to Rights of Holders of Senior Debt of such Subsidiary
Guarantor

	


56


	


Section 14.07.

	


Provisions Solely to Define Relative Rights

	


56


	


Section 14.08.

	


Trustee to Effectuate Subordination

	


57


	


Section 14.09.

	


No Waiver of Subordination Provisions

	


57


	


Section 14.10.

	


Notice to Trustee

	


57


	


Section 14.11.

	


Reliance on Judicial Order or Certificate of Liquidating
Agent

	


58


	


Section 14.12.

	


Trustee Not Fiduciary for Holders of Senior Debt of such Subsidiary
Guarantor

	


58


	


Section 14.14.

	


Article Applicable to Paying Agents

	


58


	


Section 14.15.

	


Defeasance of this Article Fourteen

	


58


	


ARTICLE FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE
 

	


59


	


Section 15.01.

	


Company’s Option to Effect Defeasance or Covenant
Defeasance

	


59


	


Section 15.02.

	


Defeasance and Discharge

	


59


	


Section 15.03.

	


Covenant Defeasance

	


59


	


Section 15.04.

	


Conditions to Defeasance or Covenant Defeasance

	


60


	


Section 15.05.

	


Deposited Money and U.S. Government Obligations to be Held in
Trust; Miscellaneous Provisions

	


61


	


Section 15.06.

	


Reinstatement

	


62


	


ARTICLE SIXTEEN SINKING FUNDS  

	


62


	


Section 16.01.

	


Applicability of Article

	


62


	


Section 16.02.

	


Satisfaction of Sinking Fund Payments with Securities

	


62


	


Section 16.03.

	


Redemption of Securities for Sinking Fund

	


62







 




 

v








 






 

 



YUMA ENERGY, INC.

 



RECONCILIATION AND TIE OF CERTAIN SECTIONS OF THIS INDENTURE
RELATING TO SECTIONS 3.10 THROUGH 3.18, INCLUSIVE, OF THE TRUST
INDENTURE ACT OF 1939:



 


	
 

	
 

	
 


	


TRUST INDENTURE ACT SECTION




	


  

	


INDENTURE SECTION





	

Section
310(a)(1)

	


  

	


6.09


	

(a)(2)

	


  

	


6.09


	

(a)(3)

	


  

	


Not Applicable


	

(a)(4)

	


  

	


Not Applicable


	

(b)

	


  

	


6.08, 6.10


	

Section
311(a)

	


  

	


6.13


	

(b)

	


  

	


6.13


	

Section
312(a)

	


  

	


7.01, 7.02


	

(b)

	


  

	


7.02


	

(c)

	


  

	


7.02


	

Section
313(a)

	


  

	


7.03


	

(b)

	


  

	


7.03


	

(c)

	


  

	


7.03


	

(d)

	


  

	


7.03


	

Section
314(a)

	


  

	


7.04


	

(a)(4)

	


  

	


1.02, 10.04


	

(b)

	


  

	


Not Applicable


	

(c)(1)

	


  

	


1.02


	

(c)(2)

	


  

	


1.02


	

(c)(3)

	


  

	


Not Applicable


	

(d)

	


  

	


Not Applicable


	

(e)

	


  

	


1.02


	

Section
315(a)

	


  

	


6.01


	

(b)

	


  

	


6.02


	

(c)

	


  

	


6.01


	

(d)

	


  

	


6.01


	

(e)

	


  

	


5.14


	

Section
316(a)

	


  

	


1.01


	

(a)(1)(A)

	


  

	


5.02, 5.12


	

(a)(1)(B)

	


  

	


5.13


	

(a)(2)

	


  

	


Not Applicable


	

(b)

	


  

	


5.08


	

(c)

	


  

	


1.04


	

Section
317(a)(1)

	


  

	


5.03


	

(a)(2)

	


  

	


5.04


	

(b)

	


  

	


10.03


	

Section
318(a)

	


  

	


1.07








 



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



 


 




 

vi








 






THIS
SUBORDINATED INDENTURE, dated as of
                    ,
20    , among Yuma Energy, Inc., a corporation
duly organized and existing under the laws of the State of Delaware
(herein called the “Company”), having its principal
office at 1177 West Loop South, Suite 1825, Houston, Texas 77027,
each of the Subsidiary Guarantors (as hereinafter defined) party
hereto and
                    ,
a , as Trustee (herein called the
“Trustee”).

 



RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS

 


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

 


The
Company and the Subsidiary Guarantors are members of the same
consolidated group of companies. The Subsidiary Guarantors will
derive direct and indirect economic benefit from the issuance of
the Securities. Accordingly, each Subsidiary Guarantor has duly
authorized the execution and delivery of this Indenture to provide
for its full, unconditional and joint and several guarantee of the
Securities to the extent provided in or pursuant to this
Indenture.

 


All
things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.

 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:

 


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



ARTICLE ONE



DEFINITIONS AND OTHER PROVISIONS



OF GENERAL APPLICATION

 


Section
1.01.                                 
Definitions.

 


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

 


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

 


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

 


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


 


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

 


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

 


(6)           unsecured
Debt shall not be deemed to be subordinate or junior to secured
Debt merely by virtue of its nature as unsecured
Debt.


 




 

1








 






 

 


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

 


“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” when used with respect to any
specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms “controlling” and “controlled”
have meanings correlative to the foregoing; provided that direct or
indirect beneficial ownership of 10% or more of the Voting Stock of
a Person shall be deemed to be control.

 


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

 


“Board
of Directors” means, with respect to the Company, either the
board of directors of the Company or any committee of that board
duly authorized to act for it in respect hereof, and with respect
to any Subsidiary Guarantor, either the board of directors of such
Subsidiary Guarantor or any committee of that board duly authorized
to act for it in respect hereof.

 


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

 


“Business
Day”, when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment are
authorized or obligated by law or executive order to
close.

 


“Capital
Stock” of any Person means any and all shares, interests,
participations or other equivalents (however designated) of
corporate stock or other equity participations, including
partnership interests, whether general or limited, of such
Person.

 


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


 


“Common
Stock” means the common stock, no par value, of the Company
as the same exists at the date of execution and delivery of this
Indenture or other Capital Stock of the Company into which such
common stock is converted, reclassified or changed from time to
time.

 


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

 


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

 


“Conversion
Agent” means any Person authorized by the Company to convert
any Securities on behalf of the Company.

 


“Corporate
Trust Office” means the office of the Trustee in at which at
any particular time its corporate trust business in relation to
this Indenture shall be administered, such office being located on
the date hereof at
                    .


 




 

2








 






 

 


“corporation”
means a corporation, association, limited liability company,
joint-stock company or business trust.

 


“Covenant
Defeasance” has the meaning specified in
Section 15.03.

 


“Debt”
of any Person at any date means any obligation created, assumed or
guaranteed by such Person for the repayment of borrowed
money.

 


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

 


“Defeasance”
has the meaning specified in Section 15.02.

 


“Depositary”
means, with respect to Securities of any series issuable in whole
or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act
as Depositary for such Securities as contemplated by
Section 3.01.

 


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

 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended,
and any statute successor thereto, in each case as amended from
time to time.

 


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

 


“Global
Security” means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in
Section 2.05 (or such legend as may be specified as
contemplated by Section 3.01 for such
Securities).



 


“Guarantor
Junior Subordinated Payment” has the meaning specified in
Section 14.03.


 


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


 


“Guarantor
Proceeding” has the meaning specified in
Section 14.03.


 


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

 


“Indenture”
means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument
and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively. The
term “Indenture” shall also include the terms of
particular series of Securities established as contemplated by
Section 3.01.

 


“interest”,
when used with respect to an Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest
payable after Maturity.

 


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

 


“Investment
Company Act” means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to
time.

 


“Junior
Subordinated Payment” has the meaning specified in
Section 12.03.


 




 

3








 






 


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

 


“Notice
of Default” means a written notice of the kind specified in
Section 5.01(5).

 


“Officers’
Certificate” means a certificate signed by the Chairman of
the Board of Directors, the Chief Executive Officer, the President
or an Executive Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company
or a Subsidiary Guarantor, as the case may be, and delivered to the
Trustee. One of the officers signing an Officers’ Certificate
given pursuant to Section 10.04 shall be the principal
executive, financial or accounting officer of the
Company.

 


“Opinion
of Counsel” means, as to the Company or a Subsidiary
Guarantor, a written opinion of counsel, who may be counsel for the
Company or such Subsidiary Guarantor, as the case may be, and who
shall be acceptable to the Trustee.

 


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

 


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

 


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

 


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

 


(3)           Securities
as to which Defeasance has been effected pursuant to
Section 15.02; and

 


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

 



provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date,
(A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as
of such date upon acceleration of the Maturity thereof to such date
pursuant to Section 5.02, (B) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is
not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or
determined as contemplated by Section 3.01, (C) the
principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by
Section 3.01, of the principal amount of such Security (or, in
the case of a Security described in clause (A) or
(B) above, of the amount determined as provided in such
clause), and (D) Securities owned by the Company, any
Subsidiary Guarantor or any other obligor upon the Securities or
any Affiliate of the Company, any Subsidiary Guarantor or of such
other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action,
only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the
Company, a Subsidiary Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, a Subsidiary Guarantor
or of such other obligor.


 




 

4








 






 


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

 


“Payment
Blockage Period” has the meaning specified in
Section 12.04.

 


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

 


“Place
of Payment”, when used with respect to the Securities of any
series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable
as specified as contemplated by Section 3.01.


 


“Predecessor
Security” of any particular Security means every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under
Section 3.06 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen
Security.

 


“Proceeding”
has the meaning specified in Section 12.03.

 


“Redemption
Date”, when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this
Indenture.

 


“Redemption
Price”, when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.

 


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

 


“Securities”
has the meaning stated in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered
under this Indenture.

 


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

 


“Securities
Payment” has the meaning specified in
Section 12.03.

 


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

 


“Senior
Debt” with respect to any series of Securities shall have the
meaning specified as contemplated by
Section 3.01.

 


“Senior
Nonmonetary Default” has the meaning specified in
Section 12.04.

 


“Senior
Payment Default” has the meaning specified in
Section 12.04.

 


“Significant
Subsidiary” means, at any date of determination, any
Subsidiary that represents 10% or more of the Company’s
consolidated total assets at the end of the most recent fiscal
quarter for which financial information is available or 10% or more
of the Company’s consolidated net revenues or consolidated
operating income for the most recent four quarters for which
financial information is available.


 




 

5








 






 


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

 


“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 Person means (1) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is
owned, directly or indirectly, by such Person or by one or more
other Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof or (2) any other Person (other than a
corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and power to direct the policies, management and
affairs thereof.


 


“Subsidiary
Guarantees” means the guarantees of each Subsidiary Guarantor
as provided in Article Thirteen.

 


“Subsidiary
Guarantors” means (i) the subsidiaries listed in
Schedule I hereto; (ii) each other Subsidiary of the Company
that becomes a Subsidiary Guarantor in accordance with
Section 13.05 hereof; and (iii) any successor of the
foregoing, in each case (i), (ii) and (iii) until such
Subsidiary Guarantor ceases to be such in accordance with
Section 13.04 hereof.

 


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

 


“Trustee”
means the Person named as the “Trustee” in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean 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 Obligation” has the meaning specified in
Section 15.04.

 


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

 


“Voting
Stock” of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at
all times or only so long as no senior class of securities has such
voting power by reason of any contingency.

 


“Wholly
Owned Subsidiary” of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock of which (other than
directors’ qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries
of such Person.

 


Section
1.02.                                 
Officers’ Certificates and Opinions of Counsel.

 


Upon
any application or request by the Company or any Subsidiary
Guarantor to the Trustee to take any action under any provision of
this Indenture, the Company and/or such Subsidiary Guarantor, as
appropriate, shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers’ Certificate, if to be given by an officer of the
Company or a Subsidiary Guarantor, or an Opinion of Counsel, if to
be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this
Indenture.


 




 

6








 






 


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

 


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

 


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

 


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

 


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

 


Section
1.03.                                 
Form of Documents Delivered to Trustee.

 


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

 


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

 


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

 


Section
1.04.                                 
Acts of Holders; Record Dates.

 


Whenever
in this Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Securities of any
or all series may take action (including the making of any demand
or request, the giving of any direction, notice, consent or waiver
or the taking of any other action) the fact that at the time of
taking any such action the Holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or
any number of instruments of similar tenor executed by Holders in
person or by agent or proxy appointed in writing, (b) by the
record of the Holders voting in favor thereof at any meeting of
Holders duly called and held in accordance with procedures approved
by the Trustee, (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders or
(d) in the case of Securities evidenced by a Global Security,
by any electronic transmission or other message, whether or not in
written format, that complies with the Depositary’s
applicable procedures. Such evidence (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as
the “Act” of the relevant Holders. Proof of execution
of any such instrument or of a writing appointing any such agent or
proxy shall be sufficient for any purpose of this Indenture and
(subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this
Section.


 




 

7








 






 


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

 


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

 


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

 


The
Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders
of Securities of such series, provided that the Company may not set
a record date for, and the provisions of this paragraph shall not
apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities of the relevant series on
such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph,
the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration
Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 1.06.

 


The
Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in
Section 5.02, (iii) any request to institute proceedings
referred to in Section 5.07(2) or (iv) any direction
referred to in Section 5.12, in each case with respect to
Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such
series on such record date, and no other Holders, shall be entitled
to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to
the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in
Section 1.06.

 


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


 




 

8








 






 

 


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


 


Section
1.05.                                 
Notices, Etc., to Trustee and Company.

 


Any
request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed
with:

 


(1)           the
Trustee by any Holder or by the Company or any Subsidiary Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing in the English language to or with
the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department; or

 


(2)           the
Company or any Subsidiary Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing in the English language
and mailed, first-class postage prepaid, in the case of the
Company, addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the
Company and, in the case of any Subsidiary Guarantor, to it at the
address of the Company’s principal office specified in the
first paragraph of this instrument, Attention: Chief Financial
Officer, or at any other address previously furnished in writing to
the Trustee by such Subsidiary Guarantor.

 


Section
1.06.                                 
Notice to Holders; Waiver.

 


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

 


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

 


Section
1.07.                                 
Conflict with Trust Indenture Act.

 


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

 


Section
1.08.                                 
Effect of Headings and Table of Contents.

 


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


 




 

9








 






 


 


Section
1.09.                                 
Successors and Assigns.

 


All
covenants and agreements in this Indenture by the Company and any
Subsidiary Guarantor shall bind their respective successors and
assigns, whether so expressed or not.

 


Section
1.10.                                 
Separability Clause.

 


In
case any provision in this Indenture, the Securities or the
Subsidiary Guarantees shall be invalid, illegal or unenforceable,
the validity, legality and enforce ability of the remaining
provisions shall not in any way be affected or impaired
thereby.

 


Section
1.11.                                 
Benefits of Indenture.

 


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

 


Section
1.12.                                 
Governing Law.

 


This
Indenture, the Securities and the Subsidiary Guarantees shall be
governed by and construed in accordance with the law of the State
of New York.

 


Section
1.13.                                 
Legal Holidays.

 


In
any case where any Interest Payment Date, Redemption Date, purchase
date or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of
any Security which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on
the Interest Payment Date, Redemption Date or purchase date, or at
the Stated Maturity.

 


Section
1.14.                                 
No Recourse Against Others.

 


No
director, officer, employee, incorporator, stockholder, member,
partner or trustee of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company
or any Subsidiary Guarantor under the Securities, this Indenture or
any Subsidiary Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. By accepting a
Security, each Holder shall be deemed to have waived and released
all such liability. The waiver and release shall be a part of the
consideration for the issue of the Securities.

 


Section
1.15.                                 
Indenture May Be Executed in Counterparts.

 


The
parties may sign any number of copies of this Indenture, and each
party hereto may sign any number of separate copies of this
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. The exchange of copies of
this Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of
this Indenture as to the parties hereto and may be used in lieu of
the original Indenture for all purposes. Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.


 




 

10








 






 

 



ARTICLE TWO



SECURITY FORMS

 


Section
2.01.                                 
Forms Generally.

 


The
Securities of each series and, if applicable, the notations of
Subsidiary Guarantees to be endorsed thereon shall be in
substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the
officers executing such Securities or notations of Subsidiary
Guarantees, as the case may be, as evidenced by their execution
thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.03 for the authentication and
delivery of such Securities.

 


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

 


Section
2.02.                                 
Form of Face of Security.

 


[Insert
any legend required by the Internal Revenue Code and the
regulations thereunder.]

 



Yuma Energy, Inc.

 


	
 No.

	
 $






 


Yuma
Energy, Inc., a corporation duly organized and existing under the
laws of Delaware (herein called the “Company,” which
term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
            ,
or registered assigns, the principal sum of
            
Dollars on
            
[if the Security is to bear interest prior to Maturity, insert
— , and to pay interest thereon from
            
or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on and
            
in each year, commencing
            ,
at the rate of     % per annum, until the
principal hereof is paid or made available for payment, provided
that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of
    % per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand. The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the
            
or
            
(whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].


 




 

11








 






 

 


[If
the Security is not to bear interest prior to Maturity, insert
— The principal of this Security shall not bear interest
except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such
case the overdue principal and any overdue premium shall bear
interest at the rate of     % per annum (to the
extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest
on overdue principal or premium which is not paid on demand shall
bear interest at the rate of     % per annum
(to the extent that the payment of such interest on interest shall
be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest
on any overdue interest shall be payable on demand.]

 


Payment
of the principal of (and premium, if any) and [if applicable,
insert — any such] interest on this Security will be made at
the office or agency of the Company maintained for that purpose in
            ,
in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment
of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register.

 


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

 


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

 


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

 



Dated:

 


Yuma
Energy, Inc.

 




By:                                                               





 



Attest:

 


 


 


 


 

 


Section
2.03.                                 
Form of Reverse of Security.

 


This
Security is one of a duly authorized issue of securities of the
Company (herein called the “Securities”), issued and to
be issued in one or more series under an Indenture, dated as of
            ,
20    (herein called the
“Indenture”, which term shall have the meaning assigned
to it in such instrument), among the Company, the Subsidiary
Guarantors named therein and
            ,
as Trustee (herein called the “Trustee”, which term
includes any successor trustee under the Indenture), and reference
is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of
the Company, the Subsidiary Guarantors, the Trustee, the holders of
Senior Debt and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the
face hereof [if applicable, insert—, limited in aggregate
principal amount to
$        ].

 


[If
applicable, insert—The Securities of this series are subject
to redemption upon not less than 30 nor more than 60 days’
notice by mail, [if applicable, insert—(1) on
            in
any year commencing with the year
            and
ending with the year
            through
operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert—on or after
            ,
20    ], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable,
insert—on or before
            ,
    %, and if redeemed] during the 12-month
period beginning of the years indicated,


 




 

12








 






 

 


 



 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	


Year




	


  

	


Redemption



 Price

	


  

	


Year

	


  

	


Redemption



 Price


	
 

	


  

	
 

	


  

	
 

	


  

	
 






 



and thereafter at a Redemption Price equal to
    % of the principal amount, together in the
case of any such redemption [if applicable, insert—(whether
through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]

 


[If
applicable, insert—The Securities of this series are subject
to redemption upon not less than 30 nor more than 60 days’
notice by mail, (1) on
            in
any year commencing with the year
            and
ending with the year
            through
operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the
table below, and (2) at any time [if applicable,
insert—on or after
            ],
as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the
12-month period beginning of the years indicated,



 


	
 

	
 

	
 

	
 

	
 


	


Year




	


  

	


Redemption Price For Redemption Through Operation of
the Sinking Fund

	


  

	


Redemption Price For Redemption Otherwise Than
Through Operation of the Sinking Fund


	
 

	


  

	
 

	


  

	
 






 



and thereafter at a Redemption Price equal to
    % of the principal amount, together in the
case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption
Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]

 


[If
applicable, insert—Notwithstanding the foregoing, the Company
may not, prior to
                    ,
redeem any Securities of this series as contemplated by [if
applicable, insert—clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less than
    % per annum.]

 


[If
applicable, insert—The sinking fund for this series provides
for the redemption on
            in
each year beginning with the year
            and
ending with the year
            of
[if applicable, insert—not less than
$            (“mandatory
sinking fund”) and not more than]
$        aggregate
principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through
[if applicable, insert—mandatory] sinking fund payments may
be credited against subsequent [if applicable,
insert—mandatory] sinking fund payments otherwise required to
be made [if applicable, insert—, in the inverse order in
which they become due].]

 


[If
the Security is subject to redemption of any kind, insert—In
the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.]

 


[If
the Security is subject to conversion, insert—Subject to the
provisions of the Indenture, the Holder has the right to convert
the principal amount of this Security into fully paid and
nonassessable shares of Common Stock of the Company at the initial
conversion price per share of Common Stock of
$        (or
$        in principal
amount of Securities for each such share of Common Stock), or at
the adjusted conversion price then in effect, if adjustment has
been made as provided in the Indenture, upon surrender of the
Security to the Conversion Agent, together with a fully executed
notice in substantially the form attached hereto and, if required
by the Indenture, an amount equal to accrued interest payable on
this Security.]


 




 

13








 






 

 


 

 


The
indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Debt of the Company, and
this Security is issued subject to the provisions of the Indenture
with respect thereto. Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.

 


[If
applicable, insert—As provided in the Indenture and subject
to certain limitations therein set forth, the obligations of the
Company under this Security are guaranteed on a senior subordinated
basis pursuant to the Indenture as indicated in the notation of
Subsidiary Guarantee endorsed hereon. The Indenture provides that a
Subsidiary Guarantor shall be released from its Subsidiary
Guarantee upon compliance with certain conditions.]

 


[If
applicable, insert—The Indenture contains provisions for
Defeasance at any time of [the entire indebtedness of this
Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance
with certain conditions set forth in the Indenture.]

 


[If
the Security is not an Original Issue Discount Security,
insert—If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]

 


[If
the Security is an Original Issue Discount Security,
insert—If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal
of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture. Such
amount shall be equal to—insert formula for determining the
amount. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue
principal, premium and interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of
the Company’s obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of
this series shall terminate.]

 


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


 


As
provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of
a receiver or trustee or for any other remedy thereunder, unless
such Holder shall have previously given the Trustee written notice
of a continuing Event of Default with respect to the Securities of
this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee
reasonable security or indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed
herein [if applicable, insert—or the right to convert this
Security in accordance with its terms].


 




 

14








 






 


 

 


No
reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal
of and any premium and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed [if
applicable, insert—and to convert such Security in accordance
with its terms].

 


As
provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on
this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company
and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more
new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.

 


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

 


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

 


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


 


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

 


Section
2.04.                                 
Form of Notation of Subsidiary Guarantee.

 



NOTATION OF SUBSIDIARY GUARANTEE

 


Each
of the Subsidiary Guarantors (which term includes any successor
Person under the Indenture) has jointly and severally, fully,
unconditionally and absolutely guaranteed to the extent set forth
in the Indenture and subject to the provisions in the Indenture,
the due and punctual payment of the principal of, and premium, if
any, and interest on the Securities and all other amounts due and
payable under the Indenture and the Securities by the
Company.

 


The
obligations of the Subsidiary Guarantors to the Holders of
Securities and to the Trustee pursuant to the Subsidiary Guarantee
and the Indenture are expressly set forth in Article Thirteen of
the Indenture and reference is hereby made to the Indenture for the
precise terms of the Subsidiary Guarantee.

 


[Insert
Names of Subsidiary Guarantors]

 



By:                                                                           

 



Title:                                                                           


 




 

15








 






 

 


 


Section
2.05.                                 
Form of Legend for Global Securities.

 


Unless
otherwise specified as contemplated by Section 3.01 for the
Securities evidenced thereby, every Global Security authenticated
and delivered 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 A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.

 


Section
2.06.                                 
Form of Trustee’s Certificate of Authentication.

 


The
Trustee’s certificates of authentication shall be in
substantially the following form:

 


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

 


 


As
Trustee

 



By:                                                                           


Authorized
Officer

 


Section
2.07.                                 
Form of Conversion Notice.

 


Each
convertible Security shall have attached thereto, or set forth on
the reverse of the Security, a notice of conversion in
substantially the following form:

 



Conversion Notice

 



To: Yuma Energy, Inc.

 


The
undersigned owner of this Security hereby: (i) irrevocably
exercises the option to convert this Security, or the portion
hereof below designated, for shares of Common Stock of Yuma Energy,
Inc. in accordance with the terms of the Indenture referred to in
this Security and (ii) directs that such shares of Common
Stock deliverable upon the conversion, together with any check in
payment for fractional shares and any Security(ies) representing
any unconverted principal amount hereof, be issued and delivered to
the registered holder hereof unless a different name has been
indicated below. If shares are to be delivered registered in the
name of a Person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto. Any amount
required to be paid by the undersigned on account of interest
accompanies this Security.



 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	


Dated

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	


Signature






 


Fill
in for registration of shares if to be delivered, and of Securities
if to be issued, otherwise than to and in the name of the
registered holder. 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	


  

	
 


	
 

	
 

	


Social Security or other

	


  

	
 


	
 

	
 

	


Taxpayer Identification Number

	


  

	
 


	
 

	
 

	
 


	
 

	
 


	
 

	


  

	
 


	

(Name)

	


  

	
 


	
 

	
 

	
 


	
 

	
 


	
 

	


  

	
 


	

(Please
print name and address)

	


  

	
 


	
 

	
 

	
 


	
 

	
 


	
 

	


  

	


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


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	


$                                     
                                       

	
 

	
 






 



Signature Guarantee*



 



__________________

 


	


*

	


Participant in a recognized Signature Guarantee Medallion Program
(or other signature acceptable to the Trustee).







 




 

16








 






 

 



ARTICLE THREE



THE SECURITIES

 


Section
3.01.                                 
Amount Unlimited; Issuable in Series.

 


The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.

 


The
Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to
Section 3.03, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities
of any series,


 


(1)           the
title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other
series);

 


(2)           if
the Securities of the series will not have the benefit of the
Subsidiary Guarantees of the Subsidiary
Guarantors;

 


(3)           any
change to the subordination provisions which applies to the
Securities of the series from those contained in Article Twelve
with respect to the Securities and/or, if applicable, those
contained in Article Fourteen with respect to the Subsidiary
Guarantees, and the definitions of Senior Debt and Designated
Senior Debt which shall apply to the Securities of the series, and,
if applicable, the Subsidiary Guarantees;

 


(4)           any
limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.04, 3.05,
3.06, 9.06 or 11.07 and except for any Securities which, pursuant
to Section 3.03, are deemed never to have been authenticated
and delivered hereunder);

 


(5)           the
Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such
interest;

 


(6)           the
date or dates on which the principal of any Securities of the
series is payable;

 


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

 


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

 


(9)           the
period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the option of the Company
and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be
evidenced;

 


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

 


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

 


 




 

17








 






 


 

 


(12)           if
the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts
shall be determined;

 


(13)           if
other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or
any premium or interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including
for purposes of the definition of “Outstanding” in
Section 1.01;

 


(14)           if
the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other
than that or those in which such Securities are stated to be
payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to
which such election is made shall be payable, the periods within
which and the terms and conditions upon which such election is to
be made and the amount so payable (or the manner in which such
amount shall be determined);

 


(15)           if
other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;

 


(16)           if
the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the
principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to
be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the
principal amount shall be determined);

 


(17)           if
applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 15.02
or Section 15.03 or both such Sections and, if other than by a
Board Resolution, the manner in which any election by the Company
to defease such Securities shall be evidenced;

 


(18)           if
applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositories for such Global
Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set
forth in Section 2.05 and any circumstances in addition to or
in lieu of those set forth in clause (2) of the last paragraph
of Section 3.05 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee
thereof;

 


(19)           any
addition to or change in the Events of Default which applies 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 5.02;

 


(20)           any
addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series;

 


(21)           whether
the Securities of the series will be convertible into Common Stock
(or cash in lieu thereof) and, if so, the terms and conditions upon
which such conversion will be effected; and

 


 




 

18








 






 


 

 


(22)           any
other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by
Section 9.01(5)).

 

 


All
Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and
(subject to Section 3.03) set forth, or determined in the
manner provided, in the Officers’ Certificate referred to
above or in any such indenture supplemental hereto.

 


If
any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers’ Certificate setting forth
the terms of the series.

 


The
Securities of each series shall have the benefit of the Subsidiary
Guarantees unless the Company elects otherwise upon the
establishment of a series pursuant to this
Section 3.01.


 


Section
3.02.                                 
Denominations.

 


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

 


Section
3.03.                                 
Execution, Authentication, Delivery and Dating.

 


The
Securities shall be executed on behalf of the Company by its
Chairman of the Board of Directors, its Chief Executive Officer,
President or one of its Executive Vice Presidents. If its corporate
seal is reproduced thereon, then it shall be attested by its
Secretary or one of its Assistant Secretaries. The signature of any
of these officers on the Securities may be manual or
facsimile.

 


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

 


At
any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
executed by the Company and, if applicable, having endorsed thereon
the notations of Subsidiary Guarantees executed as provided in
Section 13.03 by the Subsidiary Guarantors to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the
series have been established by or pursuant to one or more Board
Resolutions as permitted by Sections 2.01 and 3.01, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating,

 


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

 


(2)           if
the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 3.01, that such
terms have been established in conformity with the provisions of
this Indenture; and


 




 

19








 






 

 


(3)           that
such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, and, if
applicable, the notations of Subsidiary Guarantees endorsed thereon
will constitute valid and legally binding obligations of the
Subsidiary Guarantors, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.

 


If
such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.

 


Notwithstanding
the provisions of Section 3.01 and of the preceding paragraph,
if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers’
Certificate otherwise required pursuant to Section 3.01 or the
Company Order and Opinion of Counsel otherwise required pursuant to
such preceding paragraph at or prior to the authentication of each
Security of such series if such documents are delivered at or prior
to the authentication upon original issuance of the first Security
of such series to be issued.

 


Each
Security shall be dated the date of its
authentication.

 


No
Security or Subsidiary Guarantee shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in
Section 3.09, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.

 


Section
3.04.                                 
Temporary Securities.

 


Pending
the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities and, if applicable, having endorsed thereon the
notations of Subsidiary Guarantees in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities and, if
applicable, notations of Subsidiary Guarantees may determine, as
evidenced by their execution of such Securities and notations of
Subsidiary Guarantees.

 


If
temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same
series, of any authorized denominations and of like tenor and
aggregate principal amount and, if applicable, having endorsed
thereon the notations of Subsidiary Guarantees executed by the
Subsidiary Guarantors. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such
series and tenor.


 




 

20








 






 

 


Section
3.05.                                 
Registration, Registration of Transfer and Exchange.

 


The
Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the
“Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed “Security
Registrar” for the purpose of registering Securities and
transfers of Securities as herein provided.

 


Upon
surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for
that series, the Company shall execute, if applicable the
Subsidiary Guarantors shall execute the notations of Subsidiary
Guarantees endorsed thereon and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal
amount.

 


At
the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the notations of Subsidiary Guarantees endorsed
thereon and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.

 


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

 


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

 


No
service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to
Section 3.04, 9.06, 11.07 or otherwise not involving any
transfer.

 


If
the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required
(A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor,
as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under
Section 11.03 and ending at the close of business on the day
of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed
in part.

 


The
provisions of clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:

 


(1)           Each
Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of
this Indenture.


 




 

21








 






 


(2)           Notwithstanding
any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for
such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling
or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the
Exchange Act, and in either case the Company fails to appoint a
successor Depositary within 90 days, (B) there shall have
occurred and be continuing an Event of Default with respect to such
Global Security and the Depositary shall have notified the Trustee
of its decision to exchange such Global Security for Securities in
certificated form, (C) subject to the rules of the Depositary,
the Company shall have elected to terminate the book-entry system
through the Depositary or (D) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing
as have been specified for this purpose as contemplated by
Section 3.01.

 


(3)           Subject
to clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for
such Global Security shall direct.

 


(4)           Every
Security authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section,
Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a
nominee thereof.

 


Section
3.06.                                 
Mutilated, Destroyed, Lost and Stolen Securities.

 


If
any mutilated Security is surrendered to the Trustee, the Company
shall execute, and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding and, if applicable the Subsidiary
Guarantors shall execute the notation of Subsidiary Guarantee
endorsed thereon.

 


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 from any loss that any of them may suffer
if a Security is replaced, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute, and the Trustee
shall authenticate and deliver, 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 and, if applicable the Subsidiary
Guarantors shall execute the notation of Subsidiary Guarantee
endorsed thereon.

 


In
case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable or is to be converted,
the Company in its discretion may, instead of issuing a new
Security, pay or authorize the conversion of such Security (without
surrender thereof save in the case of a mutilated
Security).

 


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

 


Every
new Security 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.


 




 

22








 






 

 


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

 


Section
3.07.                                 
Payment of Interest; Interest Rights Preserved.

 


Except
as otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest on any Security which
is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest.

 


Any
interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called “Defaulted Interest”) shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:

 


(1)           The
Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and
the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in
the manner set forth in Section 1.06, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).

 


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

 


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

 


Section
3.08.                                 
Persons Deemed Owners.

 


Prior
to due presentment of a Security for registration of transfer, the
Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors, or the Trustee may treat
the Person in whose name such Security is registered as the owner
of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Section 3.07) any interest
on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, any
Subsidiary Guarantor, the Trustee nor any agent of the Company, any
Subsidiary Guarantor, or the Trustee shall be affected by notice to
the contrary.


 




 

23








 






 

 


Section
3.09.                                 
Cancellation.

 


All
Securities surrendered for payment, redemption, purchase,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in
this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of in
accordance with its standard procedures, unless as directed by a
Company Order.

 


Section
3.10.                                 
Computation of Interest.

 


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

 



ARTICLE FOUR



SATISFACTION AND DISCHARGE

 


Section
4.01.                                 
Satisfaction and Discharge of Indenture.

 


This
Indenture shall upon Company Request cease to be of further effect
with respect to the Securities of any series, and the Trustee, at
the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture,
when

 


(1)           either

 


(A)           all
Securities of such series theretofore authenticated and delivered
(other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06 and (ii) Securities of such
series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for
cancellation; or

 


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

 


(i)           have
become due and payable, or

 


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

 


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

 


and
the Company or, if applicable, a Subsidiary Guarantor, in the case
of (i), (ii) or (iii) above, has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust for
the purpose money in an amount sufficient, without consideration of
any reinvestment of interest, to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;


 




 

24








 






 

 


(2)           the
Company or a Subsidiary Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company and the Subsidiary
Guarantors with respect to the Securities of such series;
and

 


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

 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations
of the Company to the Trustee under Section 6.07, the
obligations of the Company with respect to the Securities of such
series under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, any
surviving rights of conversion, the obligations of the Trustee to
any Authenticating Agent under Section 6.14 and, if money
shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the
Trustee under Section 4.02 and the last paragraph of
Section 10.03 shall survive.

 


Section
4.02.                                 
Application of Trust Money.

 


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

 



ARTICLE FIVE



REMEDIES

 


Section
5.01.                                 
Events of Default.

 


“Event
of Default”, wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned
by the provisions of Article Twelve or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of
any administrative or governmental body):

 


(1)           default
in the payment of any interest upon any Security of that series
when it becomes due and payable, and continuance of such default
for a period of 30 days; or

 


(2)           default
in the payment of the principal of or any premium on any Security
of that series at its Maturity; or

 


(3)           default
in the deposit of any sinking fund payment, when and as due by the
terms of a Security of that series; or

 


(4)           default
in the performance, or breach, of any covenant of the Company or,
if the Subsidiary Guarantors have issued Subsidiary Guarantees with
respect to the Securities of such series, any Subsidiary Guarantor
in Article Eight of this Indenture; or

 


(5)           default
in the performance, or breach, of any covenant or warranty of the
Company or, if the Subsidiary Guarantors have issued Subsidiary
Guarantees with respect to the Securities of such series, any
Subsidiary Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of
such default or breach 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


 




 

25








 






 


(6)           any
Debt of the Company, any Significant Subsidiary or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with
respect to the Securities of such series, any Subsidiary Guarantor
is not paid within any applicable grace period after final maturity
or is accelerated by the holders thereof because of a default and
the total amount of such Debt unpaid or accelerated exceeds $25.0
million, or its foreign currency equivalent at the time; provided,
however, that if any such default is cured or waived or any such
acceleration rescinded, or such Debt is repaid, within a period of
30 days from the continuation of such default beyond the applicable
grace period or the occurrence of such acceleration, as the case
may be, such Event of Default and any consequential acceleration of
the Securities shall be automatically rescinded, so long as such
rescission does not conflict with any judgment or decree;
or

 


(7)           any
judgment or decree for the payment of money in excess of $25.0
million or its foreign currency equivalent (net of any amounts
covered by insurance or a binding indemnity agreement) at the time
it is entered against the Company, any Significant Subsidiary or,
if the Subsidiary Guarantors have issued Subsidiary Guarantees with
respect to the Securities of such series, any Subsidiary Guarantor,
remains outstanding for a period of 60 consecutive days following
the entry of such judgment or decree and is not discharged, waived
or the execution thereof stayed; or

 


(8)           the
entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company, any
Significant Subsidiary or, if the Subsidiary Guarantors have issued
Subsidiary Guarantees with respect to the Securities of such
series, any Subsidiary Guarantor in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or



 


(B)           a
decree or order adjudging the Company, any Significant Subsidiary
or any such Subsidiary Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company, any Significant Subsidiary or any such Subsidiary
Guarantor, under any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company, any Significant
Subsidiary or any such Subsidiary Guarantor, or of any substantial
part of its or their property, or ordering the winding up or
liquidation of its or their affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
or

 


(9)           the
commencement by the Company, any Significant Subsidiary or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with
respect to the Securities of such series, any Subsidiary Guarantor
of a voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it or them to the entry of a decree or
order for relief in respect of the Company, any Significant
Subsidiary or any such Subsidiary Guarantor in an involuntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it or them, or the filing by it or them of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it or them to
the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, any
Significant Subsidiary or any such Subsidiary Guarantor or of any
substantial part of its or their property, or the making by it or
them of an assignment for the benefit of creditors, or the
admission by it or them in writing of its or their inability to pay
its or their debts generally as they become due, or the taking of
corporate action by the Company, any Significant Subsidiary or any
such Subsidiary Guarantor in furtherance of any such action;
or

 


(10)           in
the event the Subsidiary Guarantors have issued Subsidiary
Guarantees with respect to the Securities of such series, the
Subsidiary Guarantee of any Subsidiary Guarantor is held by a final
non-appealable order or judgment of a court of competent
jurisdiction to be unenforceable or invalid or ceases for any
reason to be in full force and effect (other than in accordance
with the terms of this Indenture) or any Subsidiary Guarantor or
any Person acting on behalf of any Subsidiary Guarantor denies or
disaffirms such Subsidiary Guarantor’s obligations under its
Subsidiary Guarantee (other than by reason of a release of such
Subsidiary Guarantor from its Subsidiary Guarantee in accordance
with the terms of this Indenture); or


 




 

26








 






 

 


(11)           any
other Event of Default provided with respect to Securities of that
series.

 


Section
5.02.                                 
Acceleration of Maturity; Rescission and Annulment.

 


If
an Event of Default (other than an Event of Default with respect to
the Company specified in Section 5.01(8) or 5.01(9)) with
respect to Securities of any series at the time Outstanding occurs
and is continuing, 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 of all
the Securities of that series (or, if any Securities of that series
are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the
terms thereof) 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), together with any accrued and unpaid interest thereon,
shall become immediately due and payable. If an Event of Default
with respect to the Company specified in Section 5.01(8) or
5.01(9) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of
that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof), together
with any accrued and unpaid interest thereon, shall automatically,
and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and
payable.

 


At
any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article 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

 


(1)           the
Company or, if applicable, any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to
pay

 


(A)           all
overdue interest on all Securities of that
series,

 


(B)           the
principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any 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
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

 


(2)           all
Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series
which has become due solely by such declaration of acceleration,
have been cured or waived as provided in
Section 5.13.

 


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

 


Section
5.03.                                 
Collection of Indebtedness and Suits for Enforcement by
Trustee.

 


The
Company covenants that if

 


(1)           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

 


(2)           default
is made in the payment of the principal of (or premium, if any, on)
any Security at the Maturity thereof,


 




 

27








 






 

 



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 any premium
and interest and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and
premium and on 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 cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.

 


If
an Event of Default with respect to 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
5.04.                                 
Trustee May File Proofs of Claim.

 


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

 


No
provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or any Subsidiary Guarantee or
the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors’ or other similar
committee.

 


Section
5.05.                                 
Trustee May Enforce Claims Without Possession of
Securities.

 


All
rights of action and claims under this Indenture or the Securities
or any Subsidiary Guarantee 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
5.06.                                 
Application of Money Collected.

 


Any
money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal or any premium 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:


 




 

28








 






 

 


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

 


SECOND:
Subject to Article Twelve and Article Fourteen, to the payment of
the amounts then due and unpaid for principal of and any premium
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 any premium and
interest, respectively; and

 


THIRD:
The balance, if any, to the Company or to such other Person as a
court of competent jurisdiction shall direct.

 


Section
5.07.                                 
Limitation on Suits.

 


Subject
to Section 5.08 hereof, 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

 


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

 


(2)           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;

 


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

 


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

 


(5)           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 of such Holders.

 


Section
5.08.                                 
Unconditional Contractual Right of Holders to Receive Principal,
Premium and Interest.

 


Notwithstanding
any other provision in this Indenture, the Holder of any Security
shall have the contractual right, which is absolute and
unconditional, to receive payment of the principal of and any
premium and (subject to Section 3.07) interest on such
Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption or offer by the Company to
purchase the Securities pursuant to the terms of this Indenture, on
the Redemption Date or purchase date, as applicable) and, if
applicable, to convert such Security in accordance with its terms,
and to institute suit for the enforcement of any such right, and
such rights shall not be impaired without the consent of such
Holder.

 


Section
5.09.                                 
Restoration of Rights and Remedies.

 


If
the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding,
the Company, the Subsidiary Guarantors, 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.


 




 

29








 






 

 


Section
5.10.                                 
Rights and Remedies Cumulative.

 


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

 


Section
5.11.                                 
Delay or Omission Not Waiver.

 


No
delay or omission of the Trustee or of any Holder of any 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
5.12.                                 
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

 


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

 


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

 


Section
5.13.                                 
Waiver of Past Defaults.

 


The
Holders of not less than a majority in principal amount of the
Outstanding Securities 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

 


(1)           in
the payment of the principal of or any premium or interest on any
Security of such series (including any Security which is required
to have been purchased by the Company pursuant to an offer to
purchase by the Company made pursuant to the terms of this
Indenture), or

 


(2)           in
respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series.

 


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

 


Section
5.14.                                 
Undertaking for Costs.

 


In
any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of
such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act;
provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit
instituted by the Company or any Subsidiary Guarantor.


 




 

30








 






 


Section
5.15.                                 
Waiver of Usury, Stay or Extension Laws.

 


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

 



ARTICLE SIX



THE TRUSTEE

 


Section
6.01.                                 
Certain Duties and Responsibilities.

 


The
duties and responsibilities of the Trustee shall be as expressly
set forth in this Indenture and as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of
this Section.

 


Section
6.02.                                 
Notice of Defaults.

 


If
a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such
series notice of such default as and to the extent provided by the
Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 5.01(5) with
respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term “default”
means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of
such series.

 


Section
6.03.                                 
Certain Rights of Trustee.

 


Subject
to the provisions of Section 6.01:

 


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

 


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

 


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


 




 

31








 






 


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

 


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

 


(6)           the
Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally
or by agent or attorney; and

 


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

 


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

 


The
recitals contained herein and in the Securities and the notations
of Subsidiary Guarantees, except the Trustee’s certificates
of authentication, shall be taken as the statements of the Company
or the Subsidiary Guarantors, as the case may be, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities or
the Subsidiary Guarantees. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds
thereof.

 


Section
6.05.                                 
May Hold Securities.

 


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

 


Section
6.06.                                 
Money Held in Trust.

 


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

 


Section
6.07.                                 
Compensation and Reimbursement.

 


The
Company and each Subsidiary Guarantor jointly and severally
agree

 


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

 


(2)           except
as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith;
and


 




 

32








 






 


(3)           to
indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of
its powers or duties hereunder.

 


Section
6.08.                                 
Conflicting Interests.

 


If
the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by
virtue of being a trustee under this Indenture with respect to
Securities of more than one series.

 


Section
6.09.                                 
Corporate Trustee Required; Eligibility.

 


There
shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee
shall be a Person that is eligible pursuant to the Trust Indenture
Act to act as such, and has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of
this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the
Trustee with respect to the Securities of any series shall cease to
be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article.

 


Section
6.10.                                 
Resignation and Removal; Appointment of Successor.

 


No
resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of
Section 6.11.

 


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

 


The
Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to
the Trustee and to the Company.

 


If
at any time:

 


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

 


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

 


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


 




 

33








 






 

 



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

 


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

 


The
Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities
of any series to all Holders of Securities of such series in the
manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust
Office.

 


Section
6.11.                                 
Acceptance of Appointment by Successor.

 


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

 


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


 




 

34








 






 


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

 


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

 


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

 


Any
Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee shall be a
party, or any Person succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. As soon as practicable, the successor Trustee shall
mail a notice of its succession to the Company and the Holders of
the Securities then Outstanding. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such
Securities.

 


Section
6.13.                                 
Preferential Collection of Claims Against Company and Subsidiary
Guarantors.

 


If
and when the Trustee shall be or become a creditor of the Company,
any Subsidiary Guarantor or any other obligor upon the Securities,
the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Company, such Subsidiary Guarantor or any such other
obligor.

 


Section
6.14.                                 
Appointment of Authenticating Agent.

 


The
Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration
of transfer, conversion or partial redemption thereof or pursuant
to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a Person organized and
doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions
of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this
Section.

 


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


 




 

35








 






 


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

 


The
Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such
payments, subject to the provisions of
Section 6.07.

 


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

 


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

 


 


As
Trustee


 



By:                                                                           


As
Authenticating Agent


 



By:                                                                           


Authorized
Officer

 



ARTICLE SEVEN



HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
COMPANY

 


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

 


The
Company will furnish or cause to be furnished to the Trustee with
respect to the Securities of each series:

 


(1)           not
more than 10 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders
of Securities of such series as of such record date,
and

 


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

 



excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.

 


Section
7.02.                                 
Preservation of Information; Communications to
Holders.


 




 

36








 






 

 


 

 


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

 


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

 


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

 


Section
7.03.                                 
Reports by Trustee.

 


The
Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.

 


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

 


Section
7.04.                                 
Reports by Company and Subsidiary Guarantors .

 


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

 



ARTICLE EIGHT



CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 


Section
8.01.                                 
Company May Consolidate, Etc., Only on Certain Terms.

 


The
Company shall not, in a single transaction or a series of related
transactions, consolidate with or merge into any other Person or
permit any other Person to consolidate with or merge into the
Company or, directly or indirectly, transfer, convey, sell, lease
or otherwise dispose of all or substantially all of its assets,
unless:

 


(1)           in
a transaction in which the Company does not survive or in which the
Company transfers, conveys, sells, leases or otherwise disposes of
all or substantially all of its assets, the successor entity (for
purposes of this Article Eight, a “Successor Company”)
shall be a corporation, partnership, trust or other entity
organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and any
premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;


 




 

37








 






 

 


 

 


(2)           immediately
before and after giving pro forma effect to such transaction and
treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as having
been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall
have happened and be continuing;

 


(3)           if,
as a result of any such consolidation or merger or such transfer,
conveyance, sale, lease or other disposition, properties or assets
of the Company would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not be permitted
by this Indenture, the Company or the Successor Company, as the
case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or
prior to) all indebtedness secured thereby;

 


(4)           any
other conditions provided pursuant to Section 3.01 with
respect to the Securities of a series are satisfied;
and

 


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

 


Section
8.02.                                 
Subsidiary Guarantors May Consolidate, Etc., Only on Certain
Terms.

 


Except
in a transaction resulting in the release of a Subsidiary Guarantor
in accordance with the terms of this Indenture, each Subsidiary
Guarantor shall not, and the Company shall not permit any
Subsidiary Guarantor to, in a single or a series of related
transactions, consolidate or merge with or into any Person (other
than the Company or another Subsidiary Guarantor) or permit any
Person (other than another Subsidiary Guarantor) to consolidate or
merge with or into such Subsidiary Guarantor or, directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of its assets unless, in each
case:

 


(1)             
in a transaction in which such
Subsidiary Guarantor does not survive or in which all or
substantially all of the assets of such Subsidiary Guarantor are
transferred, conveyed, sold, leased or otherwise disposed of, the
successor entity (the “Successor Subsidiary Guarantor”)
shall be a corporation, partnership, trust or other entity
organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia, and
shall expressly assume by an indenture supplemental hereto executed
and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of all obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee and this Indenture and the
performance of every covenant of this Indenture on the part of such
Subsidiary Guarantor to be performed or observed;
and

 


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

 


Section
8.03.                                 
Successor Substituted.

 


(a)           Upon
any consolidation of the Company with, or merger of the Company
into, any other Person or any transfer, conveyance, sale, lease or
other disposition of all or substantially all of the assets of the
Company in accordance with Section 8.01, the Successor Company
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 Person had been named as the Company
herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the
Securities.


 




 

38








 






 


(b)           Upon
any consolidation of a Subsidiary Guarantor with, or merger of such
Subsidiary Guarantor into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or
substantially all of the assets of such Subsidiary Guarantor in
accordance with Section 8.02, the Successor Subsidiary
Guarantor shall succeed to, and be substituted for, and may
exercise every right and power of, such Subsidiary Guarantor under
this Indenture with the same effect as if such successor Person had
been named as a Subsidiary Guarantor herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and its
Subsidiary Guarantee.

 



ARTICLE NINE



SUPPLEMENTAL INDENTURES

 


Section
9.01.                                 
Supplemental Indentures Without Consent of Holders.

 


Without
the consent of any Holders, the Company, when authorized by a Board
Resolution, the Subsidiary Guarantors, when authorized by their
respective Board Resolutions, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the
following purposes:

 


(1)           to
evidence the succession of another Person to the Company or any
Subsidiary Guarantor and the assumption by any such successor of
the covenants of the Company or any Subsidiary Guarantor herein and
in the Securities or Subsidiary Guarantees, as the case may be;
or

 


(2)           to
add to the covenants of the Company or the Subsidiary Guarantors
for the benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company or
the Subsidiary Guarantors; or

 


(3)           to
add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series);
or

 


(4)           to
add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form;
or

 


(5)           to
add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither
(i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security
Outstanding; or

 


(6)           to
secure the Securities; or

 


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

 


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


 




 

39








 






 


(9)           to
cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision
herein; or

 


(10)           to
make any other provisions with respect to matters or questions
arising under this Indenture, provided that such action pursuant to
this clause (10) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect;
or

 


(11)           to
add new Subsidiary Guarantors; or

 


(12)           to
make any change to the provisions of Article Twelve or Article
Fourteen that limits or terminates the benefits applicable to any
holder of Senior Debt.

 


Section
9.02.                                 
Supplemental Indentures With Consent of Holders.

 


With
the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to
the Company, the Subsidiary Guarantors and the Trustee, the
Company, when authorized by a Board Resolution, the Subsidiary
Guarantors, when authorized by their respective Board Resolutions,
and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders
of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected
thereby:

 


(1)           change
the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02,
or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of
(a) any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or
in the case of an offer to purchase Securities which has been made
pursuant to a covenant contained in this Indenture, on or after the
applicable purchase date) or (b) any conversion right with
respect to any Security, or modify the provisions of this Indenture
with respect to the conversion or subordination of the Securities
or the Subsidiary Guarantees, in a manner adverse to the Holders,
or release any Subsidiary Guarantee other than as provided in this
Indenture; or

 


(2)           reduce
the percentage in principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or

 


(3)           modify
any of the provisions of this Section, Section 5.13 or
Section 10.09, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to “the
Trustee” and concomitant changes in this Section and
Section 10.09, or the deletion of this proviso, in accordance
with the requirements of Sections 6.11 and 9.01(8);
or

 


(4)           following
the making of an offer to purchase Securities from any Holder which
has been made pursuant to a covenant contained in this Indenture,
modify the provisions of this Indenture with respect to such offer
to purchase in a manner adverse to such Holder.

 


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


 




 

40








 






 

 


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

 


After
a supplemental indenture under this Section 9.02 requiring the
consent of the Holders of any series of Securities is approved, the
Company shall mail to Holders of that series of Securities a notice
briefly describing any amendment or supplement hereto effected by
such supplemental indenture. The failure to give such notice to any
such Holders, or any defect therein, shall not impair or affect the
validity of any amendment or supplement hereto effected by such
supplemental indenture with respect to other Holders.

 


Section
9.03.                                 
Execution of Supplemental Indentures.

 


In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own
rights, duties or immunities under this Indenture or
otherwise.

 


Section
9.04.                                 
Effect of Supplemental Indentures.

 


Upon
the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby.

 


Section
9.05.                                 
Conformity With Trust Indenture Act.

 


Every
supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture
Act.

 


Section
9.06.                                 
Reference in Securities to Supplemental Indentures.

 


Securities
of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company, if applicable the notations of Subsidiary
Guarantees may be endorsed thereon and such new Securities may be
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.

 



ARTICLE TEN



COVENANTS

 


Section
10.01.                                 
Payment of Principal, Premium and Interest.

 


The
Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of
and any premium and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
Principal, premium, if any, and interest shall be considered paid
on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 11:00 A.M., New York City time, on
the due date money deposited with it in immediately available funds
and designated for and sufficient to pay all principal, premium, if
any, and interest then due, and such Paying Agent is not prohibited
from paying such money to the Holders entitled thereto on such date
pursuant to the terms of Article Twelve or Article Fourteen of this
Indenture.


 




 

41








 






 

 


Section
10.02.                                 
Maintenance of Office or Agency.

 


The
Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may
be presented or surrendered for payment or, if applicable, for
conversion, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands
to or upon the Company or any Subsidiary Guarantor in respect of
the Securities of that series or any Subsidiary Guarantee and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and each of
the Company and the Subsidiary Guarantors hereby appoints the
Trustee as its agent to receive all such presentations, surrenders,
notices and demands.

 


The
Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in
each Place of Payment 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 location of any such other office or agency.

 


Section
10.03.                                 
Money for Securities Payments to be Held in Trust.

 


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

 


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

 


The
Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent
will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company, the Subsidiary
Guarantors, if applicable, or any other obligor upon the Securities
of that series in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that
series.

 


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

 


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


 




 

42








 






 


Section
10.04.                                 
Statement by Officers as to Default.

 


(a)
The Company and the Subsidiary Guarantors will deliver to the
Trustee, within 90 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the best knowledge of the
signers thereof (i) the Company or any Subsidiary Guarantor,
as the case may be, is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company or any Subsidiary Guarantor
shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge and
(ii) any event has occurred and remains in existence
prohibiting any payments on any series of Securities then
Outstanding and, if any such event exists, a description of such
event and what action the Company is taking or proposes to take
with respect thereto.

 


(b)
The Company shall, so long as any series of Securities is
Outstanding, deliver to the Trustee, as soon as possible and in any
event within five days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or
the lapse of time or both, would constitute an Event of Default, an
Officers’ Certificate setting forth the details of such Event
of Default or default, and the action which the Company proposes to
take with respect thereto.

 


Section
10.05.                                 
Existence.

 


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

 


Section
10.06.                                 
Maintenance of Properties.

 


The
Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order (reasonable wear
and tear excepted) and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business
of any Subsidiary and not disadvantageous in any material respect
to the Holders.

 


Section
10.07.                                 
Payment of Taxes and Other Claims.

 


The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property
of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate
proceedings.

 


Section
10.08.                                 
Maintenance of Insurance.


 




 

43








 






 


The
Company shall, and shall cause its Subsidiaries to, keep at all
times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the
Company to be responsible to the extent that property of similar
character is usually so insured by corporations similarly situated
and owning like properties in accordance with good business
practice.

 


Section
10.09.                                 
Waiver of Certain Covenants.

 


Except
as otherwise specified as contemplated by Section 3.01 for
Securities of such series, the Company and the Subsidiary
Guarantors may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or
condition set forth in any of Sections 10.05 through 10.08 or in
any covenant provided pursuant to Section 3.01(21), 9.01(2) or
9.01(5) or (7) for the benefit of the Holders of such series if
before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.

 



ARTICLE ELEVEN



REDEMPTION OF SECURITIES

 


Section
11.01.                                 
Applicability of Article.

 


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

 


Section
11.02.                                 
Election to Redeem; Notice to Trustee.

 


The
election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as
contemplated by Section 3.01 for such Securities.

 


In
case of any redemption at the election of the Company of less than
all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least five
Business Days prior to giving notice of such redemption (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers’ Certificate evidencing compliance with such
restriction.

 


Section
11.03.                                 
Selection by Trustee of Securities to be Redeemed.

 


If
less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor
are to be redeemed or unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be
selected by the Trustee, from the Outstanding Securities of such
series not previously called for redemption, (i) in compliance
with the requirements of the principal national securities exchange
on which such Securities are listed, if such Securities are listed
on any national securities exchange, and (ii) if such
Securities are not so listed, on a pro rata basis, by lot or by
such other method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of a portion
of the principal amount of any Security of such series, provided
that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If
less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be
selected by the Trustee, from the Outstanding Securities of such
series and specified tenor not previously called for redemption in
accordance with the preceding sentence.


 




 

44








 






 


The
Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed.

 


The
provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized
denomination) for such Security.

 


For
all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Securities which has been or is to be redeemed. If any
Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such
Security shall be deemed (so far as may be) to be the portion
selected for redemption. Upon any redemption of less than all the
Securities of a series, for purposes of selection for redemption
the Company and the Trustee may treat as Outstanding Securities
surrendered for conversion during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat
as Outstanding any Security authenticated and delivered during such
period in exchange for the unconverted portion of any Security
converted in part during such period.

 


Section
11.04.                                 
Notice of Redemption.

 


Notice
of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at
his address appearing in the Security Register; provided, however,
notice of redemption may be given more than 60 days prior to the
Redemption Date if the notice is issued in connection with a
satisfaction and discharge pursuant to Article Four.

 


All
notices of redemption shall state:

 


(1)           the
Redemption Date,

 


(2)           the
Redemption Price, if then determinable and otherwise the method of
its determination,

 


(3)           if
less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to
be redeemed and, if less than all the Outstanding Securities of any
series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be
redeemed,

 


(4)           that
on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said
date,

 


(5)           the
place or places where each such Security is to be surrendered for
payment of the Redemption Price,

 


(6)           that
the redemption is for a sinking fund, if such is the case;
and

 


(7)           if
applicable, the conversion price then in effect and the date on
which the right to convert such Securities will
expire.

 


Notice
of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the
Company and shall be irrevocable. If any Security called for
redemption is converted pursuant hereto, any money deposited with
the Trustee or any Paying Agent or so segregated and held in trust
for the redemption of such Security shall be paid to the Company
upon delivery of a Company Request to the Trustee or such Paying
Agent, or, if then held by the Company, shall be discharged from
such trust.


 




 

45








 






 


Section
11.05.                                 
Deposit of Redemption Price.

 


Prior
to 11:00 A.M., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 10.03) an amount of money
sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest
on, all the Securities which are to be redeemed on that
date.

 


Section
11.06.                                 
Securities Payable on Redemption Date.

 


Notice
of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease
to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.01,
installments of interest whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates
according to their terms and the provisions of
Section 3.07.

 


If
any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium
shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Security.

 


Section
11.07.                                 
Securities Redeemed in Part.

 


Any
Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, if applicable, the
Subsidiary Guarantors shall execute the notations of Subsidiary
Guarantees endorsed thereon, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a
new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.

 



ARTICLE TWELVE



SUBORDINATION OF SECURITIES

 


Section
12.01.                                 
Applicability of Article.

 


Unless
otherwise provided with respect to the Securities of any series in
or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities pursuant to
Section 3.01, the provisions of this Article shall be
applicable to each series of Securities.

 


Section
12.02.                                 
Securities Subordinate to Senior Debt.

 


The
Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article
(subject to the provisions of Article Four and Article Fifteen),
the payment of the principal of (and premium, if any) and interest
on each and all of the Securities of such series is hereby
expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Debt of the
Company.


 




 

46








 






 


No
provisions of this Article Twelve shall prevent the occurrence of
any Event of Default.

 


Section
12.03.                                 
Payment Over of Proceeds Upon Dissolution, Etc.

 


In
the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or
other similar case or proceeding in connection therewith, relative
to the Company or to its creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment for
the benefit of creditors or any other marshalling of assets and
liabilities of the Company, then and in any such event specified in
(a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a “Proceeding”) the holders of
Senior Debt of the Company shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of all
Senior Debt of the Company, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company, before
the Holders of the Securities are entitled to receive any payment
or distribution of any kind or character, whether in cash, property
or securities (including any payment or distribution which may be
payable or deliverable by reason of the payment of any other
indebtedness of the Company subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred
to as a “Junior Subordinated Payment”), on account of
principal of (or premium, if any) or interest on the Securities or
on account of any purchase or other acquisition of Securities by
the Company or any Subsidiary of the Company (all such payments,
distributions, purchases and acquisitions, other than the payment
or distribution of stock or securities of the Company referred to
in the second succeeding paragraph, herein referred to,
individually and collectively, as a “Securities
Payment”), and to that end the holders of Senior Debt of the
Company shall be entitled to receive, for application to the
payment thereof, any Securities Payment which may be payable or
deliverable in respect of the Securities in any such
Proceeding.

 


In
the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have
received any Securities Payment before all Senior Debt of the
Company is paid in full or payment thereof provided for in cash or
cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Company, and if such fact shall, at
or prior to the time of such Securities Payment, have been made
known to the Trustee or, as the case may be, such Holder, then and
in such event such Securities Payment shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for
application to the payment of all Senior Debt of the Company
remaining unpaid, to the extent necessary to pay all Senior Debt of
the Company in full, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Debt of the
Company.

 


For
purposes of this Article only, the words “any payment or
distribution of any kind or character, whether in cash, property or
securities” shall not be deemed to include a payment or
distribution of stock or securities of the Company provided for by
a plan of reorganization or readjustment authorized by an order or
decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or
readjustment which stock or securities are subordinated in right of
payment to all then outstanding Senior Debt of the Company to
substantially the same extent as the Securities are so subordinated
as provided in this Article. The consolidation of the Company with,
or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance
or other disposition of all or substantially all of its assets to
another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a Proceeding for the purposes of this
Section if the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
other disposition such assets, as the case may be, shall, as a part
of such consolidation, merger, conveyance or transfer, comply with
the conditions set forth in Article Eight.

 


Section
12.04.                                 
No Payment When Senior Debt of the Company in Default.


 




 

47








 






 


In
the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall
be made unless and until such Senior Payment Default shall have
been cured or waived or shall have ceased to exist or all amounts
then due and payable in respect of Senior Debt of the Company shall
have been paid in full, or provision shall have been made for such
payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company;
provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article
Sixteen by delivering and crediting pursuant to Section 16.02
Securities which have been acquired (upon redemption or otherwise)
prior to such Senior Payment Default.

 


“Senior
Payment Default” means any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt of
the Company when due, whether at the Stated Maturity of any such
payment or by declaration of acceleration, call for redemption or
otherwise.

 


In
the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by
the Company, the Subsidiary Guarantors and the Trustee of written
notice of such Senior Nonmonetary Default from the agent for the
Designated Senior Debt which is the subject of such Senior
Nonmonetary Default, no Securities Payment shall be made during the
period (the “Payment Blockage Period”) commencing on
the date of such receipt of such written notice and ending on the
earlier of (i) the date on which such Senior Nonmonetary
Default shall have been cured or waived or shall have ceased to
exist or all Designated Senior Debt the subject of such Senior
Nonmonetary Default shall have been discharged; (ii) the 179th
day after the date of such receipt of such written notice; or
(iii) the date on which the Payment Blockage Period shall have
been terminated by written notice to the Company, any Subsidiary
Guarantor or the Trustee from the agent for the Designated Senior
Debt initiating the Payment Blockage Period; provided, however,
that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Sixteen by
delivering and crediting pursuant to Section 16.02 Securities
which have been acquired (upon redemption or otherwise) prior to
the date of such receipt of such written notice. No more than one
Payment Blockage Period may be commenced with respect to the
Securities of a particular series during any 360-day period and
there shall be a period of at least 181 consecutive days in each
360-day period when no Payment Blockage Period is in effect. For
all purposes of this paragraph, no Senior Nonmonetary Default that
existed or was continuing on the date of commencement of any
Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period, whether or
not within a period of 360 consecutive days, unless such Senior
Nonmonetary Default shall have been cured for a period of not less
than 90 consecutive days.

 


“Senior
Nonmonetary Default” means the occurrence or existence and
continuance of any event of default with respect to any Designated
Senior Debt, other than a Senior Payment Default, permitting the
holders of such Designated Senior Debt (or a trustee or agent on
behalf of the holders thereof) to declare such Designated Senior
Debt due and payable prior to the date on which it would otherwise
become due and payable.

 


In
the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited
by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such Securities Payment, have
been made known to the Trustee or, as the case may be, such Holder,
then and in such event such Securities Payment shall be paid over
and delivered forthwith to the Company.

 


The
provisions of this Section shall not apply to any Securities
Payment with respect to which Section 12.03 would be
applicable.

 


Section
12.05.                                 
Payment Permitted If No Default.

 


Nothing
contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time
except during the pendency of any Proceeding referred to in
Section 12.03 or under the conditions described in
Section 12.04, from making Securities Payments, or
(b) the application by the Trustee of any money deposited with
it hereunder to Securities Payments or the retention of such
Securities Payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such
Securities Payment would have been prohibited by the provisions of
this Article.


 




 

48








 






 


Section
12.06.                                 
Subrogation to Rights of Holders of Senior Debt of the
Company.

 


Subject
to the payment in full of all amounts due or to become due on or in
respect of Senior Debt of the Company, or the provision for such
payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company, the
Holders of the Securities shall be subrogated to the rights of the
holders of such Senior Debt of the Company to receive payments and
distributions of cash, property and securities applicable to the
Senior Debt of the Company until the principal of (and premium, if
any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the
holders of the Senior Debt of the Company of any cash, property or
securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the
holders of Senior Debt of the Company by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other
than holders of Senior Debt of the Company and the Holders of the
Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt of the
Company.

 


Section
12.07.                                 
Provisions Solely to Define Relative Rights.

 


The
provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one
hand and the holders of Senior Debt of the Company on the other
hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall
(a) impair, as among the Company, its creditors other than
holders of Senior Debt of the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt of the Company, is intended to rank
equally with all other general obligations of the Company), to pay
to the Holders of the Securities the principal of (and premium, if
any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than
the holders of Senior Debt of the Company; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the
holders of Senior Debt of the Company to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such
Holder.

 


Section
12.08.                                 
Trustee to Effectuate Subordination.

 


Each
Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided
in this Article and appoints the Trustee his attorney-in-fact for
any and all such purposes.

 


Section
12.09.                                 
No Waiver of Subordination Provisions.

 


No
right of any present or future holder of any Senior Debt of the
Company to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the
Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be
otherwise charged with.

 


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


 




 

49








 






 


Section
12.10.                                 
Notice to Trustee.

 


The
Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof
from the Company or a holder of Senior Debt of the Company or from
any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of
Section 6.01, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least
three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium,
if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such money and to apply the
same to the purpose for which such money was received and shall not
be affected by any notice to the contrary which may be received by
it within three Business Days prior to such date.

 


Subject
to the provisions of Section 6.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Debt of the
Company (or a trustee therefor) to establish that such notice has
been given by a holder of Senior Debt of the Company (or a trustee
therefor). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any
Person as a holder of Senior Debt of the Company to participate in
any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt of the
Company held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this
Article, and if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.

 


Section
12.11.                                 
Reliance on Judicial Order or Certificate of Liquidating
Agent.

 


Upon
any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of
Section 6.01, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such Proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt of the Company and
other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.

 


Section
12.12.                                 
Trustee Not Fiduciary for Holders of Senior Debt of the
Company.

 


The
Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt of the Company and shall not be liable to
any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company, a Subsidiary
Guarantor or to any other Person cash, property or securities to
which any holders of Senior Debt of the Company shall be entitled
by virtue of this Article or otherwise.

 


Section
12.13.                                 
Rights of Trustee as Holder of Senior Debt of the Company;
Preservation of Trustee’s Rights.

 


The
Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt of
the Company which may at any time be held by it, to the same extent
as any other holder of Senior Debt of the Company, and nothing in
this Indenture shall deprive the Trustee of any of its rights as
such holder.


 




 

50








 






 


Nothing
in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.

 


Section
12.14.                                 
Article Applicable to Paying Agents.

 


In
case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the
term “Trustee” as used in this Article shall in such
case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee;
provided, however, that Section 12.13 shall not apply to the
Company, any Subsidiary Guarantor or any Affiliate of the Company
if it or such Subsidiary Guarantor or Affiliate acts as Paying
Agent.

 


Section
12.15.                                 
Defeasance of this Article Twelve.

 


The
subordination of the Securities of a series provided by this
Article Twelve is expressly made subject to the provisions for
Defeasance or Covenant Defeasance in Article Fifteen hereof and,
anything herein to the contrary notwithstanding, upon the
effectiveness of any such Defeasance or Covenant Defeasance, the
Securities of such series then outstanding shall thereupon cease to
be subordinated pursuant to this Article Twelve.

 



ARTICLE THIRTEEN



SUBSIDIARY GUARANTEES

 


Section
13.01.                                 
Applicability of Article.

 


Unless
the Company elects to issue any series of Securities without the
benefit of the Subsidiary Guarantees, which election shall be
evidenced in or pursuant to the Board Resolution or supplemental
indenture establishing such series of Securities pursuant to
Section 3.01, the provisions of this Article shall be
applicable to each series of Securities except as otherwise
specified in or pursuant to the Board Resolution or supplemental
indenture establishing such series pursuant to
Section 3.01.

 


Section
13.02.                                 
Subsidiary Guarantees.

 


Subject
to Section 13.01, each Subsidiary Guarantor hereby, jointly
and severally, fully and unconditionally guarantees to each Holder
of a Security authenticated and delivered by the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on such Security when and as the same shall become due and
payable, whether at the Stated Maturity, by acceleration, call for
redemption, offer to purchase or otherwise, in accordance with the
terms of such Security and of this Indenture, and each Subsidiary
Guarantor similarly guarantees to the Trustee the payment of all
amounts owing to the Trustee in accordance with the terms of this
Indenture. In case of the failure of the Company punctually to make
any such payment, each Subsidiary Guarantor hereby, jointly and
severally, agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated
Maturity or by acceleration, call for redemption, offer to purchase
or otherwise, and as if such payment were made by the
Company.


 




 

51








 






 


Each
of the Subsidiary Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be absolute, unconditional,
irrespective of, and shall be unaffected by, the validity,
regularity or enforceability of such Security or this Indenture,
the absence of any action to enforce the same or any release,
amendment, waiver or indulgence granted to the Company or any other
guarantor or any consent to departure from any requirement of any
other guarantee of all or any of the Securities of such series or
any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor; provided,
however, that, notwithstanding the foregoing, no such release,
amendment, waiver or indulgence shall, without the consent of such
Subsidiary Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or alter the
Stated Maturity thereof. Each of the Subsidiary Guarantors hereby
waives the benefits of diligence, presentment, demand for payment,
any requirement that the Trustee or any of the Holders protect,
secure, perfect or insure any security interest in or other lien on
any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral,
filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Subsidiary Guarantee will not
be discharged in respect of such Security except by complete
performance of the obligations contained in such Security and in
such Subsidiary Guarantee. Each Subsidiary Guarantor agrees that
if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to
accelerate the maturity of the Securities of a series, to collect
interest on the Securities of a series, or to enforce or exercise
any other right or remedy with respect to the Securities of a
series, such Subsidiary Guarantor agrees to pay to the Trustee for
the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of
the Holders.

 


The
indebtedness of each Subsidiary Guarantor evidenced by the
Subsidiary Guarantees is, to the extent provided in this Indenture,
subordinate and subject in right of payment to the prior payment in
full of all Senior Debt of each Subsidiary Guarantor, and the
Subsidiary Guarantees are issued subject to the provisions of this
Indenture with respect thereto. Each Holder of such Security, by
accepting the same, will be deemed to have (a) agreed to and
be bound by such provisions, (b) authorized and directed the
Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and
(c) appointed the Trustee his attorney-in-fact for any and all
such purposes.

 


Each
Subsidiary Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Subsidiary Guarantee is
endorsed against the Company in respect of any amounts paid by such
Subsidiary Guarantor on account of such Security pursuant to the
provisions of its Subsidiary Guarantee or this Indenture; provided,
however, that no Subsidiary Guarantor shall be entitled to enforce
or to receive any payments arising out of, or based upon, such
right of subrogation until the principal of (and premium, if any)
and interest on all Securities of the relevant series issued
hereunder shall have been paid in full.

 


Each
Subsidiary Guarantor that makes or is required to make any payment
in respect of its Subsidiary Guarantee shall be entitled to seek
contribution from the other Subsidiary Guarantors to the extent
permitted by applicable law; provided, however, that no Subsidiary
Guarantor shall be entitled to enforce or receive any payments
arising out of, or based upon, such right of contribution until the
principal of (and premium, if any) and interest on all Securities
of the relevant series issued hereunder shall have been paid in
full.

 


Each
Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against
the Company for liquidation or reorganization, should the Company
become insolvent or make an assignment for the benefit of creditors
or should a receiver or trustee be appointed for all or any part of
the Company’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the
Securities of a series, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or returned by
any Holder of the Securities, whether as a “voidable
preference,” “fraudulent transfer,” or otherwise,
all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or
returned.


 




 

52








 






 


Section
13.03.                                 
Execution and Delivery of Notations of Subsidiary
Guarantees.

 


To
further evidence the Subsidiary Guarantee set forth in
Section 13.02, each of the Subsidiary Guarantors hereby agrees
that a notation relating to such Subsidiary Guarantee,
substantially in the form set forth in Section 2.04, shall be
endorsed on each Security entitled to the benefits of the
Subsidiary Guarantee authenticated and delivered by the Trustee and
executed by either manual or facsimile signature of an officer of
such Subsidiary Guarantor, or in the case of a Subsidiary Guarantor
that is a limited partnership, an officer of the general partner of
each Subsidiary Guarantor. Each of the Subsidiary Guarantors hereby
agrees that the Subsidiary Guarantee set forth in
Section 13.02 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation
relating to the Subsidiary Guarantee. If any officer of the
Subsidiary Guarantor, or in the case of a Subsidiary Guarantor that
is a limited partnership, any officer of the general partner of the
Subsidiary Guarantor, whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, the
Subsidiary Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of
the Subsidiary Guarantee set forth in this Indenture on behalf of
the Subsidiary Guarantors.

 


Section
13.04.                                 
Release of Subsidiary Guarantors.

 


Unless
otherwise specified pursuant to Section 3.01 with respect to a
series of Securities, each Subsidiary Guarantee will remain in
effect with respect to the respective Subsidiary Guarantor until
the entire principal of, premium, if any, and interest on the
Securities to which such Subsidiary Guarantee relates shall have
been paid in full or otherwise satisfied and discharged in
accordance with the provisions of such Securities and this
Indenture and all amounts owing to the Trustee hereunder have been
paid; provided, however, that if (i) such Subsidiary Guarantor
ceases to be a Subsidiary in compliance with the applicable
provisions of this Indenture, (ii) either Defeasance or
Covenant Defeasance occurs with respect to such Securities pursuant
to Article Fifteen or (iii) all or substantially all of the
assets of such Subsidiary Guarantor or all of the Capital Stock of
such Subsidiary Guarantor is sold (including by sale, merger,
consolidation or otherwise) by the Company or any Subsidiary in a
transaction complying with the requirements of this Indenture,
then, in each case of (i), (ii) or (iii), upon delivery by the
Company of an Officers’ Certificate and an Opinion of Counsel
stating that all conditions precedent herein provided for relating
to the release of such Subsidiary Guarantor from its obligations
under its Subsidiary Guarantee and this Article Thirteen have been
complied with, such Subsidiary Guarantor shall be released and
discharged of its obligations under its Subsidiary Guarantee and
under this Article Thirteen without any action on the part of the
Trustee or any Holder, and the Trustee shall execute any documents
reasonably required in order to acknowledge the release of such
Subsidiary Guarantor from its obligations under its Subsidiary
Guarantee endorsed on the Securities of such series and under this
Article Thirteen.

 


Section
13.05.                                 
Additional Subsidiary Guarantors.

 


Unless
otherwise specified pursuant to Section 3.01 with respect to a
series of Securities, the Company will cause any domestic Wholly
Owned Subsidiary of the Company that becomes a Subsidiary after the
date the Securities of a series are first issued hereunder to
become a Subsidiary Guarantor as soon as practicable after such
Subsidiary becomes a Subsidiary. The Company shall cause any such
Wholly Owned Subsidiary to become a Subsidiary Guarantor with
respect to the Securities by executing and delivering to the
Trustee (a) a supplemental indenture, in form and substance
satisfactory to the Trustee, which subjects such Person to the
provisions (including the representations and warranties) of this
Indenture as a Subsidiary Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been
duly authorized and executed by such Person and such supplemental
indenture and such Person’s obligations under its Subsidiary
Guarantee and this Indenture constitute the legal, valid, binding
and enforceable obligations of such Person (subject to such
customary exceptions concerning creditors’ rights and
equitable principles as may be acceptable to the Trustee in its
discretion).


 




 

53








 






 

 


Section
13.06.                                            
Limitation on Liability.

 


Any
term or provision of this Indenture to the contrary
notwithstanding, the maximum amount of the Subsidiary Guarantee of
any Subsidiary Guarantor shall not exceed the maximum amount that
can be hereby guaranteed by such Subsidiary Guarantor without
rendering such Subsidiary Guarantee voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar
laws affecting the rights of creditors generally.

 



ARTICLE FOURTEEN



SUBORDINATION OF SUBSIDIARY GUARANTEES

 


Section
14.01.                                 
Applicability of Article.

 


Unless
otherwise provided with respect to the Securities of any series in
or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities pursuant to
Section 3.01, the provisions of this Article shall be
applicable to each series of Securities.

 


Section
14.02.                                 
Subsidiary Guarantees Subordinate to Senior Debt of Subsidiary
Guarantors.

 


Each
Subsidiary Guarantor covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article Four and Article
Fifteen), the Subsidiary Guarantee of such Subsidiary Guarantor is
hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Debt of such Subsidiary
Guarantor.

 


No
provisions of this Article Fourteen shall prevent the occurrence of
any Event of Default.

 


Section
14.03.                                 
Payment Over of Proceeds Upon Dissolution, Etc.

 


In
the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or
other similar case or proceeding in connection therewith, relative
to any Subsidiary Guarantor or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding
up of any Subsidiary Guarantor, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of any Subsidiary Guarantor,
then and in any such event specified in (a), (b) or
(c) above (each such event, if any, herein sometimes referred
to as a “Guarantor Proceeding”) the holders of Senior
Debt of such Subsidiary Guarantor shall be entitled to receive
payment in full of all amounts due or to become due on or in
respect of all Senior Debt of such Subsidiary Guarantor, or
provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt of such Subsidiary Guarantor, before the Holders of the
Securities are entitled to receive any payment or distribution of
any kind or character, whether in cash, property or securities
(including any payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of
such Subsidiary Guarantor subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred
to as a “Guarantor Junior Subordinated Payment”), on
account of the Subsidiary Guarantee of such Subsidiary Guarantor
(all such payments, other than the payment or distribution of stock
or securities of a Subsidiary Guarantor referred to in the second
succeeding paragraph, herein referred to, individually and
collectively, as a “Guarantee Payment”), and to that
end the holders of Senior Debt of such Subsidiary Guarantor shall
be entitled to receive, for application to the payment thereof, any
Guarantee Payment which may be payable or deliverable in respect of
such Subsidiary Guarantor’s Subsidiary Guarantee in any such
Guarantor Proceeding.


 




 

54








 






 


In
the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have
received any Guarantee Payment before all Senior Debt of such
Subsidiary Guarantor is paid in full or payment thereof provided
for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of such Subsidiary
Guarantor, and if such fact shall, at or prior to the time of such
Guarantee Payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such Guarantee
Payment shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of
such Subsidiary Guarantor for application to the payment of all
Senior Debt of such Subsidiary Guarantor remaining unpaid, to the
extent necessary to pay all Senior Debt of such Subsidiary
Guarantor in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt of such
Subsidiary Guarantor.

 


For
purposes of this Article only, the words “any payment or
distribution of any kind or character, whether in cash, property or
securities” shall not be deemed to include a payment or
distribution of stock or securities of a Subsidiary Guarantor
provided for by a plan of reorganization or readjustment authorized
by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of
any other corporation provided for by such plan of reorganization
or readjustment which stock or securities are subordinated in right
of payment to all then outstanding Senior Debt of such Subsidiary
Guarantor to substantially the same extent as the Subsidiary
Guarantees are so subordinated as provided in this Article. The
consolidation of a Subsidiary Guarantor with, or the merger of a
Subsidiary Guarantor into, another Person or the liquidation or
dissolution of such Subsidiary Guarantor following the conveyance
or other disposition of all or substantially all of its assets to
another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a Guarantor Proceeding for the purposes
of this Section if the Person formed by such consolidation or into
which such Subsidiary Guarantor is merged or the Person which
acquires by conveyance or transfer such assets, as the case may be,
shall, as a part of such consolidation, merger, conveyance or other
disposition, comply with the conditions set forth in Article
Eight.

 


Section
14.04.                                 
No Payment When Senior Debt of such Subsidiary Guarantor in
Default.

 


In
the event that any Senior Payment Default shall have occurred and
be continuing, then no Guarantee Payment shall be made unless and
until such Senior Payment Default shall have been cured or waived
or shall have ceased to exist or all amounts then due and payable
in respect of the relevant Senior Debt of the Company shall have
been paid in full, or provision shall have been made for such
payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of such Senior Debt; provided, that
nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Sixteen by
delivering and crediting pursuant to Section 16.02 Securities
which have been acquired (upon redemption or otherwise) prior to
such Senior Payment Default.

 


In
the event that any Senior Nonmonetary Default shall have occurred
and be continuing, then, upon the receipt by the Company, the
Subsidiary Guarantors and the Trustee of written notice of such
Senior Nonmonetary Default from any holder, or agent for the
holders, of any Designated Senior Debt of the Company, no Guarantee
Payment shall be made during the applicable Payment Blockage
Period; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance
with Article Sixteen by delivering and crediting pursuant to
Section 16.02 Securities which have been acquired (upon
redemption or otherwise) prior to the date of such receipt of such
written notice. No more than one Payment Blockage Period may be
commenced with respect to the Subsidiary Guarantees during any
360-day period and there shall be a period of at least 181
consecutive days in each 360-day period when no Payment Blockage
Period is in effect. For all purposes of this paragraph, no Senior
Nonmonetary Default that existed or was continuing on the date of
commencement of any Payment Blockage Period shall be, or be made,
the basis for the commencement of a subsequent Payment Blockage
Period, whether or not within a period of 360 consecutive days,
unless such Senior Nonmonetary Default shall have been cured for a
period of not less than 90 consecutive days.


 




 

55








 






 

 


In
the event that, notwithstanding the foregoing, a Subsidiary
Guarantor shall make any Guarantee Payment to the Trustee or any
Holder prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such Guarantee
Payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such Guarantee Payment
shall be paid over and delivered forthwith to the
Company.

 


The
provisions of this Section shall not apply to any Guarantee Payment
with respect to which Section 14.03 would be
applicable.

 


Section
14.05.                                 
Payment Permitted If No Default.

 


Nothing
contained in this Article or elsewhere in this Indenture or in any
of the Subsidiary Guarantees shall prevent (a) a Subsidiary
Guarantor, at any time except during the pendency of any Guarantor
Proceeding referred to in Section 14.03 or under the
conditions described in Section 14.04, from making Guarantee
Payments, or (b) the application by the Trustee of any money
deposited with it hereunder to Guarantee Payments or the retention
of such Guarantee Payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such
Guarantee Payment would have been prohibited by the provisions of
this Article.

 


Section
14.06.                                 
Subrogation to Rights of Holders of Senior Debt of such Subsidiary
Guarantor.

 


Subject
to the payment in full of all amounts due or to become due on or in
respect of Senior Debt of a Subsidiary Guarantor, or the provision
for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt of such
Subsidiary Guarantor, the Holders of the Securities shall be
subrogated to the rights of the holders of such Senior Debt of such
Subsidiary Guarantor to receive payments and distributions of cash,
property and securities applicable to the Senior Debt of such
Subsidiary Guarantor until the principal of (and premium, if any)
and interest on the Securities shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of
the Senior Debt of a Subsidiary Guarantor of any cash, property or
securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the
holders of Senior Debt of a Subsidiary Guarantor by Holders of the
Securities or the Trustee, shall, as among a Subsidiary Guarantor,
its creditors other than holders of Senior Debt of such Subsidiary
Guarantor and the Holders of the Securities, be deemed to be a
payment or distribution by such Subsidiary Guarantor to or on
account of the Senior Debt of such Subsidiary
Guarantor.

 


Section
14.07.                                 
Provisions Solely to Define Relative Rights.

 


The
provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one
hand and the holders of Senior Debt of a Subsidiary Guarantor on
the other hand. Nothing contained in this Article or elsewhere in
this Indenture or in the Subsidiary Guarantees is intended to or
shall (a) impair, as among a Subsidiary Guarantor, its
creditors other than holders of Senior Debt of such Subsidiary
Guarantor and the Holders of the Securities, the obligation of such
Subsidiary Guarantor, which is absolute and unconditional (and
which, subject to the rights under this Article of the holders of
Senior Debt of such Subsidiary Guarantor, is intended to rank
equally with all other general obligations of such Subsidiary
Guarantor), to guarantee payment to the Holders of the Securities
of the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights
against a Subsidiary Guarantor of the Holders of the Securities and
creditors of such Subsidiary Guarantor other than the holders of
Senior Debt of such Subsidiary Guarantor; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the
holders of Senior Debt of a Subsidiary Guarantor to receive cash,
property and securities otherwise payable or deliverable to the
Trustee or such Holder.


 




 

56








 






 


Section
14.08.                                 
Trustee to Effectuate Subordination.

 


Each
Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided
in this Article and appoints the Trustee his attorney-in-fact for
any and all such purposes.

 


Section
14.09.                                 
No Waiver of Subordination Provisions.

 


No
right of any present or future holder of any Senior Debt of a
Subsidiary Guarantor to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of such Subsidiary Guarantor or by
any act or failure to act, in good faith, by any such holder, or by
any noncompliance by such Subsidiary Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged
with.

 


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

 


Section
14.10.                                 
Notice to Trustee.

 


Each
Subsidiary Guarantor shall give prompt written notice to the
Trustee of any fact known to such Subsidiary Guarantor which would
prohibit the making of any payment to or by the Trustee in respect
of its Subsidiary Guarantee. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in
respect of the Subsidiary Guarantees, unless and until the Trustee
shall have received written notice thereof from a Subsidiary
Guarantor or a holder of Senior Debt of such Subsidiary Guarantor
or from any trustee therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of
Section 6.01, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least
three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium,
if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such money and to apply the
same to the purpose for which such money was received and shall not
be affected by any notice to the contrary which may be received by
it within three Business Days prior to such date.

 


Subject
to the provisions of Section 6.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Debt of a
Subsidiary Guarantor (or a trustee therefor) to establish that such
notice has been given by a holder of Senior Debt of such Subsidiary
Guarantor (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt of a
Subsidiary Guarantor to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt of such Subsidiary Guarantor held by
such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment
to such Person pending judicial determination as to the right of
such Person to receive such payment.


 




 

57








 






 

 


Section
14.11.                                 
Reliance on Judicial Order or Certificate of Liquidating
Agent.

 


Upon
any payment or distribution of assets of a Subsidiary Guarantor
referred to in this Article, the Trustee, subject to the provisions
of Section 6.01, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such Guarantor Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the
Senior Debt of such Subsidiary Guarantor and other indebtedness of
such Subsidiary Guarantor, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.

 


Section
14.12.                                 
Trustee Not Fiduciary for Holders of Senior Debt of such Subsidiary
Guarantor.

 


The
Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt of a Subsidiary Guarantor and shall not be
liable to any such holders if it shall in good faith mistakenly pay
over or distribute to Holders of Securities or to the Company, a
Subsidiary Guarantor, or to any other Person cash, property or
securities to which any holders of Senior Debt of such Subsidiary
Guarantor shall be entitled by virtue of this Article or
otherwise.

 


Section
14.13.                                 
Rights of Trustee as Holder of Senior Debt of such Subsidiary
Guarantor; Preservation of Trustee’s Rights.

 


The
Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt of
a Subsidiary Guarantor which may at any time be held by it, to the
same extent as any other holder of Senior Debt of such Subsidiary
Guarantor, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.

 


Nothing
in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.

 


Section
14.14.                                 
Article Applicable to Paying Agents.

 


In
case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the
term “Trustee” as used in this Article shall in such
case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee;
provided, however, that Section 14.13 shall not apply to the
Company, any Subsidiary Guarantor or any Affiliate of the Company
if it or such Subsidiary Guarantor or Affiliate acts as Paying
Agent.

 


Section
14.15.                                 
Defeasance of this Article Fourteen.

 


The
subordination of the Subsidiary Guarantees provided by this Article
Fourteen is expressly made subject to the provisions for Defeasance
or Covenant Defeasance of a series of Securities in Article Fifteen
hereof and, anything herein to the contrary notwithstanding, upon
the effectiveness of any such Defeasance or Covenant Defeasance
with respect to a series of Securities, the Subsidiary Guarantees
of the Securities of such series shall thereupon cease to be
subordinated pursuant to this Article Fourteen.


 




 

58








 






 



ARTICLE FIFTEEN



DEFEASANCE AND COVENANT DEFEASANCE

 


Section
15.01.                                 
Company’s Option to Effect Defeasance or Covenant
Defeasance.

 


The
Company may elect, at its option at any time, to have
Section 15.02 or Section 15.03 applied to any Securities
or any series of Securities, as the case may be, designated
pursuant to Section 3.01 as being defeasible pursuant to such
Section 15.02 or 15.03, in accordance with any applicable
requirements provided pursuant to Section 3.01 and upon
compliance with the conditions set forth below in this Article. Any
such election shall be evidenced in or pursuant to a Board
Resolution or in another manner specified as contemplated by
Section 3.01 for such Securities.

 


Section
15.02.                                 
Defeasance and Discharge.

 


Upon
the Company’s exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as
the case may be, the Company shall be deemed to have been
discharged from its obligations, and each Subsidiary Guarantor
shall be deemed to have been discharged from its obligations with
respect to its Subsidiary Guarantee of such Securities, and the
provisions of Articles Twelve and Fourteen shall cease to be
effective, with respect to such Securities and Subsidiary
Guarantees as provided in this Section on and after the date the
conditions set forth in Section 15.04 are satisfied (herein
called “Defeasance”). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which
shall survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of such Securities to receive,
solely from the trust fund described in Section 15.04 and as
more fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities when
payments are due, or, if applicable, to convert such Securities in
accordance with their terms, (2) the Company’s and each
Subsidiary Guarantor’s obligations with respect to such
Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, and,
if applicable, their obligations with respect to the conversion of
such Securities, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (4) this Article.
Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have
Section 15.03 applied to such Securities.

 


Section
15.03.                                 
Covenant Defeasance.

 


Upon
the Company’s exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as
the case may be, (1) the Company shall be released from its
obligations under Section 8.01(3), Sections 10.05 through
10.08, inclusive, and any covenants provided pursuant to
Section 3.01(21), 9.01(2) or 9.01(7) for the benefit of the
Holders of such Securities, and (2) the occurrence of any
event specified in Sections 5.01(5) (with respect to any of
Section 8.01(3), Sections 10.05 through 10.08, inclusive, and
any such covenants provided pursuant to Section 3.01(21),
9.01(2) or 9.01(5) or (7)), 5.01(6), 5.01(7), 5.01(10) and 5.01(11)
shall be deemed not to be or result in an Event of Default and
(3) the provisions of Articles Twelve, Thirteen and Fourteen
shall cease to be effective, in each case with respect to such
Securities and Subsidiary Guarantees as provided in this Section on
and after the date the conditions set forth in Section 15.04
are satisfied (herein called “Covenant Defeasance”).
For this purpose, such Covenant Defeasance means that, with respect
to such Securities, the Company and the Subsidiary Guarantors, as
applicable, may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of
Section 5.01(5)) or Articles Twelve, Thirteen or Fourteen,
whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or Article or by reason of any reference
in any such Section or Article to any other provision herein or in
any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.


 




 

59








 






 


Section
15.04.                                 
Conditions to Defeasance or Covenant Defeasance.

 


The
following shall be the conditions to the application of
Section 15.02 or Section 15.03 to any Securities or any
series of Securities, as the case may be:

 


(1)           The
Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.09 and agrees to comply
with the provisions of this Article applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with
the terms of this Indenture and such Securities. As used herein,
“U.S. Government Obligation” means (x) any
security which is (i) a direct obligation of the United States
of America for the payment of which the full faith and credit of
the United States of America is pledged or (ii) an obligation
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, which, in either case
(i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is
specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, 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
depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary
receipt.

 


(2)           In
the event of an election to have Section 15.02 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Defeasance were not to
occur.

 


(3)           In
the event of an election to have Section 15.03 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result
of the deposit and Covenant Defeasance to be effected with respect
to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to
occur.

 


(4)           The
Company shall have delivered to the Trustee an Officers’
Certificate to the effect that neither such Securities nor any
other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such
deposit.

 


(5)           No
event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities shall
have occurred and be continuing at the time of such deposit (other
than a default or an Event of Default resulting from the borrowing
of funds to be applied to such deposit (and any similar concurrent
deposit relating to other Debt) and the granting of liens to secure
such borrowing) or, with regard to any such event specified in
Sections 5.01(7) and (8), at any time on or prior to the 121st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 121st
day).


 




 

60








 






 


(6)           Such
Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).

 


(7)           Such
Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company or any Subsidiary is a party or by
which it is bound.

 


(8)           At
the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt of the
Company or any Subsidiary Guarantor shall have occurred and be
continuing, (B) no event of default with respect to any Senior
Debt of the Company or any Subsidiary Guarantor shall have resulted
in such Senior Debt becoming, and continuing to be, due and payable
prior to the date on which it would otherwise have become due and
payable (unless payment of such Senior Debt has been made or duly
provided for), and (C) no other event of default with respect
to any Senior Debt of the Company or any Subsidiary Guarantor shall
have occurred and be continuing permitting (after notice or lapse
of time or both) the holders of such Senior Debt (or a trustee on
behalf of such holders) to declare such Senior Debt due and payable
prior to the date on which it would otherwise have become due and
payable.

 


(9)           The
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that such deposit shall not cause either the Trustee
or the trust so created to be subject to the Investment Company Act
of 1940.

 


(10)           The
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.

 


Section
15.05.                                 
Deposited Money and U.S. Government Obligations to be Held in
Trust; Miscellaneous Provisions.

 


Subject
to the provisions of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 15.06, the
Trustee and any such other trustee are referred to collectively as
the “Trustee”) pursuant to Section 15.04 in
respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any such
Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal and
any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
Money and U.S. Government Obligations so held in trust shall not be
subject to the provisions of Article Twelve or Article
Fourteen.

 


The
Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 15.04 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of Outstanding Securities.

 


Anything
in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as
provided in Section 15.04 with respect to any Securities
which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.


 




 

61








 






 


Section
15.06.                                 
Reinstatement.

 


If
the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by
reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such
Securities from which the Company has been discharged or released
pursuant to Section 15.02 or 15.03 shall be revived and
reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 15.05 with respect to such
Securities in accordance with this Article; provided, however, that
if the Company makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any)
of the Holders of such Securities to receive such payment from the
money so held in trust.

 



ARTICLE SIXTEEN



SINKING FUNDS

 


Section
16.01.                                 
Applicability of Article.

 


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

 


The
minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a “mandatory
sinking fund payment”, and any payment in excess of such
minimum amount provided for by the terms of such Securities is
herein referred to as an “optional sinking fund
payment.” If provided for by the terms of any Securities, the
cash amount of any sinking fund payment may be subject to reduction
as provided in Section 16.02. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the
terms of such Securities.

 


Section
16.02.                                 
Satisfaction of Sinking Fund Payments with Securities.

 


The
Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may
apply as a credit Securities of a series which have been
(x) converted or (y) redeemed either at the election of
the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all
or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms
of such Securities as and to the extent provided for by the terms
of such Securities; provided, however, that the Securities to be so
credited have not been previously so credited. The Securities to be
so credited shall be received and credited for such purpose by the
Trustee at the Redemption Price, as specified in the Securities so
to be redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced
accordingly.

 


Section
16.03.                                 
Redemption of Securities for Sinking Fund.


 




 

62








 






 

 

 


Not
less than 35 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, 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 Securities
pursuant to Section 16.02 and will also deliver to the Trustee
any Securities to be so delivered. Not less than 32 days prior to
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 11.03 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 11.04. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.

 


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


 



[Remainder of Page Intentionally Left Blank – Signature Pages
Follow]




 

63








 






 


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


 



ISSUER:


 



Yuma Energy, Inc.


 


 



By:                                                                           


Name:


Title:


 



SUBSIDIARY GUARANTORS:


 


 


 



By:                                                                           


Name:


Title:
_________________


 


 



TRUSTEE


 


 


 


as
Trustee


 



By:                                                                           


Name:


Title:




 

64








 







SCHEDULE I

 



SUBSIDIARY GUARANTORS

 


 




Subsidiary                                                                                                 


State of Organization






	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 







 




 

65