exv4wii






American Oil & Gas Inc.




as Issuer,



and



[                    ],




as Trustee



Form of

Indenture




Dated as of                     




Subordinated Debt Securities















 









 








CROSS-REFERENCE TABLE




	 	 	 	 	 	 	 
	TIA SECTION	 	INDENTURE SECTION	 
	310
	 	 (a)	 	 	7.10	 
	 
	 	(b)	 	 	7.10	 
	 
	 	(c)	 	 	N.A.	 
	311 
	 	(a)	 	 	7.11	 
	 
	 	(b)	 	 	7.11	 
	 
	 	(c)	 	 	N.A.	 
	312 
	 	(a)	 	 	5.01	 
	 
	 	(b)	 	 	5.02	 
	 
	 	(c)	 	 	5.02	 
	313 
	 	(a)	 	 	5.03	 
	 
	 	(b)	 	 	5.03	 
	 
	 	(c)	 	 	12.03	 
	 
	 	(d)	 	 	5.03	 
	314 
	 	(a)(1)	 	 	4.05	(a)
	 
	 	(a)(2)	 	 	4.05	(b)
	 
	 	(a)(3)	 	 	4.05(a), 4.05(b) & 3.03	 
	 
	 	(a)(4)	 	 	4.06	(a)
	 
	 	(b)	 	 	N.A.	 
	 
	 	
(c)(1)	 	 	12.05	 
	 
	 	(c)(2)	 	 	12.05	 
	 
	 	(c)(3)	 	 	N.A.	 
	 
	 	(d)	 	 	N.A.	 
	 
	 	(e)	 	 	12.05	 
	 
	 	(f)	 	 	4.07	 
	315 
	 	(a)	 	 	7.01	(a)
	 
	 	(b)	 	 	6.07 & 12.03	 
	 
	 	(c)	 	 	7.01	 
	 
	 	(d)	 	 	7.01	 
	 
	 	(e)	 	 	6.08	 
	316 
	 	(a) (last sentence)	 	 	1.01	 
	 
	 	(a)(1)(A)	 	 	6.06	 
	 
	 	(a)(1)(B)	 	 	6.06	 
	 
	 	(a)(2)	 	 	9.01	(d)
	 
	 	(b)	 	 	6.04	 
	 
	 	(c)	 	 	5.04	 
	317 
	 	(a)(1)	 	 	6.02	 
	 
	 	(a)(2)	 	 	6.02	 
	 
	 	(b)	 	 	4.04	 
	318 
	 	(a)	 	 	12.07	 








 




			
	N.A. means Not Applicable
	 
	NOTE:	 	This Cross-Reference table shall not, for any purpose, be deemed part of this Indenture.




i









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	RECITALS OF THE COMPANY
	 	 	1	 
	 
	 	 	 	 
	ARTICLE I
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	9	 
	Section 1.03. Incorporation by Reference of TIA
	 	 	9	 
	Section 1.04. Rules of Construction
	 	 	10	 
	Section 1.05. Compliance Certificates and Opinions
	 	 	10	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Forms Generally
	 	 	10	 
	Section 2.02. Form of Face of Debt Security
	 	 	11	 
	Section 2.03. Form of Reverse of Debt Security
	 	 	14	 
	Section 2.04. Form of Trustee’s Certificate of Authentication
	 	 	17	 
	Section 2.05. Principal Amount; Issuable in Series
	 	 	17	 
	Section 2.06. Execution of Debt Securities
	 	 	20	 
	Section 2.07. Authentication and Delivery of Debt Securities
	 	 	21	 
	Section 2.08. Denomination of Debt Securities
	 	 	22	 
	Section 2.09. Registration of Transfer and Exchange
	 	 	22	 
	Section 2.10. Temporary Debt Securities
	 	 	24	 
	Section 2.11. Mutilated, Destroyed, Lost or Stolen Debt Securities
	 	 	25	 
	Section 2.12. Cancellation of Surrendered Debt Securities
	 	 	26	 
	Section 2.13. Provisions of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
	 	 	26	 
	Section 2.14. Payment of Interest; Interest Rights Preserved
	 	 	26	 
	Section 2.15. Securities Denominated in Foreign Currencies
	 	 	28	 
	Section 2.16. Wire Transfers
	 	 	28	 
	Section 2.17. Securities Issuable in the Form of a Global Security
	 	 	28	 
	Section 2.18. Medium Term Securities
	 	 	31	 
	Section 2.19. Defaulted Interest
	 	 	31	 
	Section 2.20. Judgments
	 	 	32	 
	Section 2.21. CUSIP Numbers
	 	 	33	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	REDEMPTION OF DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Applicability of Article
	 	 	33	 
	Section 3.02. Tax Redemption; Special Tax Redemption
	 	 	33	 
	Section 3.03. Notice of Redemption; Selection of Debt Securities
	 	 	35	 
	Section 3.04. Deposit of Redemption Price
	 	 	36	 
	Section 3.05. Payment of Debt Securities Called for Redemption
	 	 	37	 
	Section 3.06. Mandatory and Optional Sinking Funds
	 	 	37	 
	Section 3.07. Redemption of Debt Securities for Sinking Fund
	 	 	38	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE IV
	 	 	 	 
	PARTICULAR COVENANTS OF THE COMPANY
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities
	 	 	39	 
	Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
	 	 	40	 
	Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee
	 	 	41	 
	Section 4.04. Duties of Paying Agents, etc
	 	 	41	 
	Section 4.05. SEC Reports; Financial Statements
	 	 	42	 
	Section 4.06. Compliance Certificate
	 	 	43	 
	Section 4.07. Payment of Additional Interest
	 	 	43	 
	Section 4.08. Further Instruments and Acts
	 	 	45	 
	Section 4.09. Corporate Existence
	 	 	45	 
	Section 4.10. Maintenance of Properties
	 	 	45	 
	Section 4.11. Payment of Taxes and Other Claims
	 	 	45	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Company to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
	 	 	46	 
	Section 5.02. Communications to Holders
	 	 	46	 
	Section 5.03. Reports by Trustee
	 	 	46	 
	Section 5.04. Record Dates for Action by Holders
	 	 	47	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	47	 
	Section 6.02. Collection of Indebtedness by Trustee, etc
	 	 	49	 
	Section 6.03. Application of Monies Collected by Trustee
	 	 	50	 
	Section 6.04. Limitation on Suits by Holders
	 	 	51	 
	Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
	 	 	52	 
	Section 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
	 	 	52	 
	Section 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
	 	 	53	 
	Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	CONCERNING THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Certain Duties and Responsibilities
	 	 	53	 
	Section 7.02. Certain Rights of Trustee
	 	 	54	 
	Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities
	 	 	55	 
	Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities
	 	 	56	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 7.05. Monies Received by Trustee to Be Held in Trust
	 	 	56	 
	Section 7.06. Compensation and Reimbursement
	 	 	56	 
	Section 7.07. Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed
	 	 	56	 
	Section 7.08. Separate Trustee; Replacement of Trustee
	 	 	57	 
	Section 7.09. Successor Trustee by Merger
	 	 	58	 
	Section 7.10. Eligibility; Disqualification
	 	 	58	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	58	 
	Section 7.12. Compliance with Tax Laws
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	CONCERNING THE HOLDERS
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Evidence of Action by Holders
	 	 	58	 
	Section 8.02. Proof of Execution of Instruments and of Holding of Debt Securities
	 	 	59	 
	Section 8.03. Who May Be Deemed Owner of Debt Securities
	 	 	59	 
	Section 8.04. Instruments Executed by Holders Bind Future Holders
	 	 	60	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	SUPPLEMENTAL INDENTURES
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders
	 	 	60	 
	Section 9.02. Modification of Indenture with Consent of Holders of Debt Securities
	 	 	62	 
	Section 9.03. Effect of Supplemental Indentures
	 	 	64	 
	Section 9.04. Debt Securities May Bear Notation of Changes by Supplemental Indentures
	 	 	64	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Consolidations and Mergers of the Company
	 	 	64	 
	Section 10.02. Rights and Duties of Successor Company
	 	 	64	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
	 	 	 	 
	UNCLAIMED MONIES
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Applicability of Article
	 	 	65	 
	Section 11.02. Satisfaction and Discharge of Indenture; Defeasance
	 	 	65	 
	Section 11.03. Conditions of Defeasance
	 	 	66	 
	Section 11.04. Application of Trust Money
	 	 	67	 
	Section 11.05. Repayment to Company
	 	 	67	 
	Section 11.06. Indemnity for U.S. Government Obligations
	 	 	67	 
	Section 11.07. Reinstatement
	 	 	68	 






iv









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE XII
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Successors and Assigns of Company Bound by Indenture
	 	 	68	 
	Section 12.02. Acts of Board, Committee or Officer of Successor Company
Valid
	 	 	68	 
	Section 12.03. Required Notices or Demands
	 	 	68	 
	Section 12.04. Indenture and Debt Securities to Be Construed in Accordance
with the Laws of the State of New York
	 	 	69	 
	Section 12.05. Officers’ Certificate and Opinion of Counsel to Be Furnished
upon Application or Demand by the Company
	 	 	69	 
	Section 12.06. Payments Due on Legal Holidays
	 	 	70	 
	Section 12.07. Provisions Required by TIA to Control
	 	 	70	 
	Section 12.08. Computation of Interest on Debt Securities
	 	 	70	 
	Section 12.09. Rules by Trustee, Paying Agent and Registrar
	 	 	70	 
	Section 12.10. No Recourse Against Others
	 	 	70	 
	Section 12.11. Severability
	 	 	70	 
	Section 12.12. Effect of Headings
	 	 	70	 
	Section 12.13. Indenture May Be Executed in Counterparts
	 	 	71	 
	 
	 	 	 	 
	ARTICLE XIII
	 	 	 	 
	SUBORDINATION OF DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 13.01. Agreement To Subordinate
	 	 	71	 
	Section 13.02. Liquidation, Dissolution, Bankruptcy
	 	 	71	 
	Section 13.03. Default on Senior Indebtedness
	 	 	71	 
	Section 13.04. Acceleration of Payment of Debt Securities
	 	 	72	 
	Section 13.05. When Distribution Must Be Paid Over
	 	 	72	 
	Section 13.06. Subrogation
	 	 	72	 
	Section 13.07. Relative Rights
	 	 	72	 
	Section 13.08. Subordination May Not Be Impaired by Company
	 	 	73	 
	Section 13.09. Rights of Trustee and Paying Agent
	 	 	73	 
	Section 13.10. Distribution or Notice to Representative
	 	 	73	 
	Section 13.11. Article XIII Not to Prevent Defaults or Limit Right to
Accelerate
	 	 	73	 
	Section 13.12. Trust Monies Not Subordinated
	 	 	73	 
	Section 13.13. Trustee Entitled to Rely
	 	 	73	 
	Section 13.14. Trustee to Effectuate Subordination
	 	 	74	 
	Section 13.15. Trustee Not Fiduciary for Holders of Senior Indebtedness
	 	 	74	 
	Section 13.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions
	 	 	74	 






v 









 






     INDENTURE dated as of                     , between American Oil & Gas Inc., a Nevada corporation (the
“Company”) and [                    ], a [                    ] banking corporation, as trustee (the “Trustee”).



RECITALS




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its subordinated unsecured debentures, notes, bonds or other
evidences of indebtedness to be issued in one or more series unlimited as to principal amount
(herein called the “Debt Securities”), to bear such rates of interest, to mature at such time or
times, to be issued in one or more series and to have such other provisions as shall be fixed as
hereinafter provided. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.



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



     This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that
are required to be part of this Indenture and, to the extent applicable, shall be governed by such
provisions.



NOW, THEREFORE, THIS INDENTURE WITNESSETH




     That in order to declare the terms and conditions upon which the Debt Securities are
authenticated, issued and delivered, and in consideration of the premises, and of the purchase and
acceptance of the Debt Securities by the holders thereof, the Company and the Trustee covenant and
agree with each other, for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:



ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01 Definitions.



     The terms defined in this Section (except as in this Indenture otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture, any Company Order, any
Board Resolution, and any indenture supplemental hereto shall have the respective meanings
specified in this Section. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended, or which are by reference in such Act defined in the Securities
Act of 1933, as amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in the TIA and in said
Securities Act as in force at the date of the execution of this instrument.



     “Affiliate” of any specified Person means any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, such specified Person. For
purposes of this definition, control of a Person shall mean 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. The Trustee may request and may conclusively rely upon an
Officers’ Certificate to determine whether any Person is an Affiliate of any specified Person.



1









 





     “Agent” means any Registrar or paying agent.



     “Attributable Indebtedness”, when used with respect to any Sale/Leaseback Transaction, means,
as at the time of determination, the present value (discounted at a rate equivalent to the
Company’s then current weighted average cost of funds for borrowed money as at the time of
determination, compounded on a semiannual basis) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale/Leaseback Transaction
(including any period for which such lease can be extended).



     “Authorized Newspaper” means a newspaper in an official language of the place of publication
or in the English language, customarily published at least once a day, and customarily published
for at least five days in each calendar week whether or not published on days that are Legal
Holidays in the place of publication, and of general circulation in such city or cities specified
pursuant to Section 2.05 with respect to the Debt Securities of any series. Where successive
publications are required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day in such city.



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



     “Bank Indebtedness” means any and all amounts payable under or in respect of any note, loan or
credit agreement with a banking institution, including principal, premium (if any), interest
(including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing interest is allowed
in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees and all other
amounts payable thereunder or in respect thereof.



     “Bearer Holder” means, with respect to any Bearer Security or Coupon, the bearer thereof.



     “Bearer Security” means any Debt Security (with or without Coupons), title to which passes by
delivery only, but does not include any Coupons.



     “Board of Directors” means, when used with reference to the Company, either the board of
directors of the Company, or any authorized committee of such board of directors of the Company.



     “Board Resolution” means, when used with reference to the Company, a copy of one or more
resolutions, certified by the Secretary or an assistant Secretary of the Company, to have been duly
adopted by its Board of Directors and to be in full force and effect on the date of such
certification delivered to the Trustee.



     “Business Day” means any day other than a Legal Holiday.



     “Capital Stock” of any Person means and includes any and all shares, rights to purchase,
warrants or options (whether or not currently exercisable), participation or other equivalents of
or interests in (however designated) the equity (which includes, but is not limited to, common
stock, preferred stock and partnership and joint venture interests) of such Person (excluding any
debt securities that are convertible into, or exchangeable for, such equity).



2









 





     “Capitalized Lease Obligation” of any Person means any obligation of such Person to pay rent
or other amounts under a lease of property, real or personal, that is required to be capitalized
for financial reporting purposes in accordance with GAAP; and the amount of such obligation shall
be the capitalized amount thereof determined in accordance with GAAP.



     “Common Equity” of any Person means and includes all Capital Stock of such Person that is
generally entitled to (i) vote in the election of directors of such Person, or (ii) if such Person
is not a corporation, vote or otherwise participate in the selection of the governing body,
partners, managers or others that will control the management and policies of such Person.



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



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



     “Consolidated Net Tangible Assets” means, for the Company and its Restricted Subsidiaries on a
consolidated basis determined in accordance with GAAP, the aggregate amounts of assets (less
depreciation and valuation reserves and other reserves and items deductible from gross book value
of specific asset accounts under GAAP) that would be included on a balance sheet after deducting
therefrom (a) all liability items except deferred income taxes, commercial paper, short term bank
indebtedness, Funded Indebtedness, other long-term liabilities and shareholders’ equity and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like
intangibles.



     “Coupon” means any interest coupon appertaining to a Bearer Security.



     “Coupon Security” means any Bearer Security authenticated and delivered with one or more
Coupons appertaining thereto.



     “Currency” means Dollars or Foreign Currency.



     “Currency Hedge Obligations” means, at any time as to any Person, the obligations of such
Person at such time that were incurred in the ordinary course of business pursuant to any foreign
currency exchange agreement, option or futures contract or other similar agreement or arrangement
designed to protect against or manage such Person’s or any of its Subsidiaries’ exposure to
fluctuations in foreign currency exchange rates.



     “Custodian” means any receiver, trustee, assignee, liquidation or similar official under any
Bankruptcy Law.



     “Debt Security” or “Debt Securities” has the meaning stated in the first recital of this
Indenture and more particularly means any debt security or debt securities, as the case may be of
any series authenticated and delivered under this Indenture.



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



3









 





     “Depositary” means, unless otherwise specified by the Company pursuant to either Section 2.05
or 2.17, with respect to Registered Debt Securities of any series issuable or issued in whole or in
part in the form of one or more Global Securities, The Depository Trust Company, New York, New
York, another clearing agency or any successor thereto registered as a clearing agency under the
Exchange Act or other applicable statute or regulations.



     “Designated Senior Indebtedness” means any Senior Indebtedness which, at the date of
determination, has an aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to, at least $100 million and is
specifically designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as “Designated Senior Indebtedness” for purposes of this Indenture and has been
designated as “Designated Senior Indebtedness” for purposes of this Indenture in an Officers’
Certificate received by the Trustee.



     “Dollar” or “$” means a dollar or other equivalent unit of legal tender as at the time for
payment of public or private debts in the United States.



     “Dollar Equivalent” means, with respect to any monetary amount in a Foreign Currency, at any
time for the determination thereof, the amount of Dollars obtained by converting such Foreign
Currency involved in such computation into Dollars at the spot rate for the purchase of Dollars
with the applicable Foreign Currency as quoted by [                    ] (unless another comparable financial
institution is designated by the Company) in New York, New York at approximately 11:00 a.m. (New
York City time) on the date two business days prior to such determination.



     “Euro” means the currency introduced at the start of the third stage of European economic and
monetary union pursuant to the Treaty establishing the European Union, as amended by the Treaty on
European Union and the Treaty of Amsterdam.



     “European Union” means the European Community, the European Coal and Steel Community and the
European Atomic Energy Community, or their successors in the European Union.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor
statute.



     “Floating Rate Security” means a Debt Security that provides for the payment of interest at a
variable rate determined periodically by reference to an interest rate index specified pursuant to
Section 2.05.



     “Foreign Currency” means a currency issued by the government of any country other than the
United States, or a composite currency the value of which is determined by reference to the values
of the currencies of any group of countries.



     “Funded Indebtedness” means all Indebtedness (including Indebtedness incurred under any
revolving credit, letter of credit or working capital facility) that matures by its terms, or that
is renewable at the option of any obligor thereon to a date, more than one year after the date on
which such Indebtedness is originally incurred.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public



4









 




Accountants and statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, as in effect on the date on which the Debt Securities
of the applicable series are issued.




     “Global Security” means with respect to any series of Debt Securities issued hereunder, a Debt
Security which is executed by the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture and
any Indentures supplemental hereto, or resolution of the Board of Directors and set forth in an
Officers’ Certificate, which shall be registered in the name of the Depositary or its nominee and
which shall represent, and shall be denominated in an amount equal to the aggregate principal
amount of, all the Outstanding Debt Securities of such series or any portion thereof, in either
case having the same terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining interest.



     “Hedging Obligations” of any Person means the obligations of such Person pursuant to any
Currency Hedge Obligations, Interest Rate Hedging Agreements or Oil and Gas Hedging Contracts.



     “Holder,” “Holder of Debt Securities” or other similar terms means, with respect to a
Registered Security, the Registered Holder and, with respect to a Bearer Security or a Coupon, the
Bearer Holder.



     “Indebtedness” of any Person at any date means, without duplication, (i) all indebtedness of
such Person for borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), (ii) all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement obligations with
respect thereto), other than standby letters of credit incurred by such Person in the ordinary
course of business, (iv) all obligations of such Person to pay the deferred and unpaid purchase
price of property or services, except trade payables and accrued expenses incurred in the ordinary
course of business, (v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness of others secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person, (vii) all Indebtedness of others guaranteed by such Person
to the extent of such guarantee and (viii) all Hedging Obligations of such Person.




     “Indenture” means this instrument as originally executed, or, if amended or supplemented as
herein provided, as so amended or supplemented and shall include the form and terms of particular
series of Debt Securities as contemplated hereunder, whether or not a supplemental Indenture is
entered into with respect thereto.



     “Interest” includes, when used with respect to a Bearer Security, any additional interest
payable on such Bearer Security pursuant to Section 3.02 or 4.07 and, when used with respect to any
Original Issue Discount Security which by its terms bears interest only after Stated Maturity,
means interest payable after maturity (whether at Stated Maturity, upon acceleration or redemption
or otherwise) or after the date, if any, on which the Company becomes obligated to acquire a Debt
Security, whether by purchase or otherwise.



     “Interest Rate Hedging Agreements” means, with respect to any Person, the obligations of such
Person under (i) interest rate swap agreements, interest rate cap agreements



5









 




and interest rate collar agreements and (ii) other agreements or arrangements designed to protect
such Person or any of its Subsidiaries against fluctuations in interest rates.




     “Legal Holiday” means a Saturday, Sunday or a day on which banking institutions are not
authorized or obligated to be open.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset (including, without limitation, any production
payment, advance payment or similar arrangement with respect to minerals in place), whether or not
filed, recorded or otherwise perfected under applicable law. For the purposes of this Indenture,
the Company or any Restricted Subsidiary shall be deemed to own subject to a Lien any asset which
it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capitalized Lease Obligation (other than any Capitalized Lease Obligation relating to
any building, structure, equipment or other property used or to be used in the ordinary course of
business of the Company and the Restricted Subsidiaries) or other title retention agreement
relating to such asset the right of set-off, whether by operation of law or by contract, does not
constitute a Lien unless there is a related obligation to maintain a deposit of cash or other
assets in respect of which such right of set-off may be exercised.



     “Net Proceeds” means, with respect to any Sale/Leaseback Transaction entered into by the
Company or any Restricted Subsidiary, the aggregate net proceeds received by the Company or such
Restricted Subsidiary from such Sale/Leaseback Transaction after payment of expenses, taxes,
commissions and similar amounts incurred in connection therewith, whether such proceeds are in cash
or in property (valued at the fair market value thereof at the time of receipt, as determined by
the Board of Directors).



     “Officer” means the Chairman of the Board, Chief Executive Officer, President, Chief Financial
Officer, Treasurer, any Assistant Treasurer, Controller, or any Vice President or Assistant Vice
President of a Person.



     “Officers’ Certificate” means a certificate signed by an Officer and by the Secretary or
Assistant or Attesting Secretary of the Company. Each such certificate shall include the
statements provided for in Section 12.05, if and to the extent required by the provisions thereof.



     “Oil and Gas Hedging Contracts” means any oil and gas purchase or hedging agreement, and other
agreement or arrangement, in each case, that is designed to provide protection against oil and gas
price fluctuations.



     “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable
to the Trustee. The counsel may be an employee of or counsel to the Company.



     “Original Issue Discount Debt Security” means any Debt 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 6.01.



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



     (a) Debt Securities of that series theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;



6









 





     (b) Debt Securities of that series 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 paying
agent) for the Holders of such Debt Securities; provided, that, if such Debt 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; and



     (c) Debt Securities of that series which have been paid pursuant to Section 2.11 or in
exchange for or in lieu of which other Debt Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Debt Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debt Securities owned by the Company or any other obligor upon
the Debt Securities or any Affiliate of the Company 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 or
waiver, only Debt Securities which an officer of the Trustee actually knows to be so owned shall be
so disregarded. Debt 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 Debt Securities and that the pledgee is not the Company or any other
obligor upon the Debt Securities or an Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of Outstanding Debt Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Debt Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon a declaration of acceleration of the maturity thereof pursuant
to Section 6.01. In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of a Debt Security denominated in one or
more Foreign Currencies or currency units that shall be deemed to be Outstanding for such purposes
shall be the Dollar Equivalent, determined in the manner provided as contemplated by Section 2.05
on the date of original issuance of such Debt Security, of the principal amount (or, in the case of
any Original Issue Discount Security, the Dollar Equivalent on the date of original issuance of
such Security of the amount determined as provided in the preceding sentence above) of such Debt
Security.



     “Pari Passu” as applied to the ranking of any Indebtedness of a Person in relation to other
Indebtedness of such Person, means that each such Indebtedness either (a) is not subordinate in
right of payment to any Indebtedness or (b) is subordinate in right of payment to the same
Indebtedness as is the other, and is so subordinate to the same extent, and is not subordinate in
right of payment to each other or to any Indebtedness as to which the other is not so subordinate.



     “Person” means any individual, corporation, partnership, joint venture, incorporated or
unincorporated association, joint-stock company, trust, unincorporated organization or government
or other agency or political subdivision thereof or other entity of any kind.



7









 





     “Place of Payment” means, when used with respect to the Debt Securities of any series, the
place or places where the principal of, and premium, if any, and interest on, the Debt Securities
of that series are payable as specified pursuant to Section 2.05.



     “Preferred Stock”, as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of such Person.



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



     “Registered Holder” means the Person in whose name a Registered Security is registered in the
Debt Security Register (as defined in Section 2.09(a)).



     “Registered Security” means any Debt Security registered as to principal and interest in the
Debt Security Register (as defined in Section 2.09(a)).



     “Registrar” has the meaning set forth in Section 2.09(a).



     “Representative” means the trustee, agent or representative (if any) for an issue of Senior
Indebtedness.



     “Restricted Subsidiary” means each of the existing Subsidiaries of the Company and any
Subsidiary of the Company that is a successor corporation of any of the existing Subsidiaries. The
status of any Subsidiary of the Company as a Restricted Subsidiary shall continue, so long as it is
a Subsidiary of the Company.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended, and any successor statute.



     “Senior Indebtedness” means, as to any series of Debt Securities subordinated pursuant to the
provisions of Article XIII, the Indebtedness of the Company identified as Senior Indebtedness in
the resolution of the Board of Directors and accompanying Officers’ Certificate or supplemental
Indenture setting forth the terms, including as to Subordination, of such series, which may include
all indebtedness of the Company, whether outstanding on the date hereof or hereafter created,
incurred or assumed, which is for money borrowed, or evidenced by a note or similar instrument.



     “Stated Maturity” means, with respect to any Debt Security, the date specified in such Debt
Security as the fixed date on which the payment of principal of such Debt Security is due and
payable, including pursuant to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such Debt Security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such contingency has
occurred).



     “Subsidiary” of any Person means any corporation of which at least a majority of the aggregate
voting power of all classes of the Common Equity is owned by such Person directly or



8









 




through one or more other Subsidiaries of such Person, and any entity other than a corporation in
which such Person, directly or indirectly, owns at least a majority of the Common Equity of such
entity.




     “TIA” means the Trust Indenture Act of 1939, as amended, as in effect on the date of this
Indenture as originally executed and, to the extent required by law, as amended.



     “Trustee” initially means [                    ] and any other Person or Persons appointed as such from
time to time pursuant to Section 7.08, and, subject to the provisions of Article VII, includes its
or their successors and assigns. If at any time there is more than one such Person, “Trustee” as
used with respect to the Debt Securities of any series shall mean the Trustee with respect to the
Debt Securities of that series.



     “Trust Officer” means any officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.



     “United States” means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its jurisdiction.



     “United States Alien” means any Person who, for United States Federal income tax purposes, is
a foreign corporation, a nonresident alien individual, a nonresident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more members of which is, for United States
Federal income tax purposes, a foreign corporation, a nonresident alien individual or a nonresident
alien fiduciary of a foreign estate or trust.



     “U.S. Government Obligations” means direct obligations of the United States, obligations on
which the payment of principal and interest is fully guaranteed by the United States or obligations
or guarantees for the payment of which the full faith and credit of the United States is pledged.



     “Yield to Maturity” means the yield to maturity, calculated at the time of issuance of a
series of Debt Securities, or, if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.



     Section 1.02 Other Definitions.



	 	 	 	 	 
	Term	 	Defined in Section	 
	“Debt Security Register”
	 	 	2.09	 
	“Defaulted Interest”
	 	 	2.19	 
	“Designated Currency”
	 	 	2.20	 
	“Determination Notice”
	 	 	3.02	 
	“Event of Default”
	 	 	6.01	 
	“Registrar”
	 	 	2.09	 
	“Successor Company”
	 	 	10.01	 






     Section 1.03 Incorporation by Reference of TIA. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a part of this
Indenture.



9









 





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



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



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



     (c) “or” is not exclusive;



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



     (e) provisions apply to successive events and transactions.



     (f) unsecured Indebtedness shall not be deemed to be subordinate or junior to Secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness; and



     (g) the principal amount of any noninterest bearing or other discount security at any date
shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated
such date prepared in accordance with GAAP.



     Section 1.05. Compliance Certificates and Opinions. Upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers’ Certificate of the Company stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.



     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 or she has made such
examination or investigation as is necessary to enable him or her 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.



ARTICLE II

DEBT SECURITIES




     Section 2.01. Forms Generally. The Debt Securities and Coupons, if any, of each series shall
be in substantially the form set forth in this Article, or in such other form or forms as shall



10









 




be established by or pursuant to a Board Resolution of the Company with respect to the Debt
Securities 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 the Company may deem appropriate (and, if not contained in a
supplemental Indenture entered into in accordance with Article IX, as are not prohibited by the
provisions of this Indenture) or as may be required or appropriate to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange on which such series
of Debt Securities may be listed, or to conform to general usage, or as may, consistently herewith,
be determined by the officers executing such Debt Securities and Coupons, as evidenced by their
execution of the Debt Securities and Coupons. If the form or forms of Debt Securities of any
series is established by action taken pursuant to a Board Resolution of the Company, either an
Officers’ Certificate of the Company shall certify that such action shall have been duly taken or a
copy of an appropriate record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company, and, in either case, delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 2.07 for the authentication and delivery of such Debt
Securities.




     The definitive Debt Securities of each series, Coupons, if any, 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 Debt Securities and Coupons, as evidenced by their execution of such
Debt Securities and Coupons.



     The forms of Global Securities of any series shall have such provisions and legends as are
customary for Debt Securities of such series in global form, including without limitation any
legend required by the Depositary for the Debt Securities of such series.



     The Trustee’s Certificates of Authentication shall be in substantially the form set forth in
this Article II.



     Each Bearer Security and each Coupon shall bear a legend substantially to the following
effect: “Any United States Person who holds this obligation will be subject to limitations under
the United States Federal income tax laws, including the limitations provided in Sections 165(j)
and 1287(a) of the Internal Revenue Code.”



     Section 2.02. Form of Face of Security.



     [If the Debt Security is an Original Issue Discount Security, insert – FOR PURPOSES OF SECTION
1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF THE ORIGINAL
ISSUE DISCOUNT IS                     , THE ISSUE DATE IS                     , 20 [AND] [,] THE YIELD TO MATURITY IS
[                    ,]
[AND THE ORIGINAL ISSUE DISCOUNT FOR THE SHORT ACCRUAL PERIOD IS                      AND THE METHOD USED
TO DETERMINE THE YIELD THEREFOR IS                     ]]



     [Insert any other legend required by the United States Internal Revenue Code or the
regulations thereunder].



     [If a Global Security, — insert legend required by Section 2.17 of the Indenture] [If
applicable, insert — UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK



11









 




CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]




AMERICAN OIL & GAS INC.




			
	No.                     
	 	$                    






	 	 	 

	 

	 	CUSIP No.






     AMERICAN OIL & GAS INC., a Nevada corporation (herein called the “Company”, which term
includes any successor corporation 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 Debt Security is to bear interest prior to Stated
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. 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 Debt Security (or one or more Predecessor Debt 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 Debt Security (or one or more Predecessor Debt Securities) is registered at the close of
business on a special record date for the payment of such Defaulted Interest to be filled by the
Trustee, notice whereof shall be given to Holders of Debt 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 Debt 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].



     [If the Debt Security is not to bear interest prior to Maturity, insert — The principal of
this Debt 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 of
this Debt Security shall bear interest at the rate of      % per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of      % per annum (to the
extent that the payment of such interest shall be legally enforceable), which shall accrue from the
date of such demand for payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]



12









 





     [If a Global Security, insert — Payment of the principal of (and premium, if any) and [if
applicable, insert — any such] interest on this Debt Security by transfer of immediately available
funds to a bank account in            designated by the Holder 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
[state other currency].]



     [If a Definitive Security, insert — Payment of the principal of (and premium, if any) and [if
applicable, insert — any such] interest on this Debt 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] [state other currency] [or subject to any laws or regulations applicable thereto and to the
right of the Company (as provided in the Indenture) to rescind the designation of any such Paying
Agent, at the [main] offices of            in            and            in           , or at such other
offices or agencies as the Company may designate, by [United States Dollar] [state other currency]
check drawn on, or transfer to a [United States Dollar] account maintained by the payee with, a
bank in The City of New York (so long as the applicable Paying Agency has received proper transfer
instructions in writing at least [ ] days prior to the payment date)] [if applicable, insert — ;
provided, however, that payment of interest may be made at the option of the Company by [United
States Dollar] [state other currency] check mailed to the addresses of the Persons entitled thereto
as such addresses shall appear in the Security Register] [or by transfer to a [United States
Dollar] [state other currency] account maintained by the payee with a bank in The City of New York
[state other Place of Payment] (so long as the applicable Paying Agent has received proper transfer
instructions in writing by the Record Date prior to the applicable Interest Payment Date)].]



     Reference is hereby made to the further provisions of this Debt 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 Debt 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 under its
corporate seal.


Dated:




	 	 	 	 	 
	 	AMERICAN OIL & GAS INC.

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 


Attest:

 









13









 









     Section 2.03. Form of Reverse of Security.



     This Debt Security is one of a duly authorized issue of subordinated securities of the Company
(herein called the “Debt Securities”), issued and to be issued in one or more series under an
Indenture, dated as of [ ] (herein called the “Indenture”), between the Company and [                    ]
(herein called the “Trustee,” which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made for a statement,
of the respective rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Debt Securities and of the terms upon which the Debt Securities
are, and are to be, authenticated and delivered. This Debt Security is one of the series designated
on the face hereof [, limited in aggregate principal amount to $          ].



     The Securities are senior unsecured obligations of the Company.



     [If applicable, insert — The Debt Securities of this series are subject to redemption upon
not less than       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 [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 [on or
before                 ,      %, and if redeemed] during the 12-month period beginning                 
of the years indicated,



	 	 	 	 	 	 	 	 	 	 	 	 	 
	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 Debt
Securities, or one or more Predecessor Debt 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 Debt Securities of this series are subject to redemption upon
not less than       nor more than       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 anytime [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





14









 





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 Debt Securities, or one or more
Predecessor Debt 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 Debt Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of monies 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 [not less than]
$___ [(“mandatory sinking fund”) and not more than $____] aggregate principal amount of
Debt Securities of this series. [Debt Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made – in the inverse order in which
they become due.]



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



     [If applicable, insert — The Debt Securities of this series are not redeemable prior to
Stated Maturity.]



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



     [If the Debt Security is an Original Issue Discount Security, — If an Event of Default with
respect to Debt Securities of this series shall occur and be continuing, an amount of principal of
the Debt 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 and overdue 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 interest, if any, on the Debt Securities of this series shall
terminate.]



     The Debt Securities are subordinated to Senior Indebtedness (as such term is defined in the
Indenture) on the terms and conditions set forth in the Indenture.



     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Debt 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



15









 




Debt 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 Debt
Securities of each series at the time Outstanding, on behalf of the Holders of all Debt 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 Debt Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Debt Security and of any Debt 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 Debt Security.




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



     [If a Global Security, insert — This Global Security or portion hereof may not be exchanged
for Definitive Securities of this series except in the limited circumstances provided in the
Indenture.



     The holders of beneficial interests in this Global Security will not be entitled to receive
physical delivery of Definitive Securities except as described in the Indenture and will not be
considered the Holders thereof for any purpose under the Indenture.]



     [If a Definitive Security, insert — As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Debt Security is registrable in the Security
Register, upon surrender of this Debt Security for registration of transfer at the office or agency
of the Company in [if applicable, insert — any place where the principal of and any premium and
interest on this Debt Security are payable] [if applicable, insert — The City of New York[, or,
subject to any laws or regulations applicable thereto and to the right of the Company (limited as
provided in the Indenture) to rescind the designation of any such transfer agent, at the [main]
offices of in and in or at such other offices or agencies as the Company may designate]], 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 Debt 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 Debt Securities of this series are issuable only in registered form without coupons in
denominations of U.S. $______ and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Debt Securities of this series are exchangeable
for a like aggregate principal amount of Debt Securities of this series 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 Debt 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 Debt
Security is registered as the owner hereof for all purposes, whether or not this Debt Security



16









 




be overdue, and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.




     No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Debt Security, or for any claim based thereon or otherwise in
respect thereof, or in any Debt Security, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor Person, either directly or
through the Company or any successor Person, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment, penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released by the acceptance hereof
and as a condition of, and as part of the consideration for, the Debt Securities and the execution
of the Indenture.



     The Indenture provides that the Company (a) will be discharged from any and all obligations in
respect of the Debt Securities (except for certain obligations described in the Indenture), or (b)
need not comply with certain restrictive covenants of the Indenture, in each case if the Company
deposits, in trust, with the Trustee money or U.S. Government Obligations (or a combination
thereof) which through the payment of interest thereon and principal thereof in accordance with
their terms will provide money, in an amount sufficient to pay all the principal of and interest on
the Debt Securities, but such money need not be segregated from other funds except to the extent
required by law.



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



     The Debt Securities are governed by the laws of The State of New York.



     Section 2.04. Form of Trustee’s Certificate of Authentication.



     The Trustee’s Certificate of Authentication on all Debt Securities authenticated by the
Trustee shall be in substantially the following form:



     TRUSTEE’S CERTIFICATE OF AUTHENTICATION



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



	 	 	 	 	 
	 	[                    ],


As Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signature 	 
	 	 	 	 
	 




     Section 2.05. Principal Amount; Issuable in Series. The aggregate principal amount of Debt
Securities which may be issued, executed, authenticated, delivered and outstanding under this
Indenture is unlimited.



     The Debt Securities may be issued in one or more series. There shall be established, without
the approval of any Holders, in or pursuant to a Board Resolution of the Company and set forth in
an Officers’ Certificate of the Company, or established in one or more Indentures



17









 




supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the
following:




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



     (b) any limit upon the aggregate principal amount of the Debt Securities of the series which
may be authenticated and delivered under this Indenture (except for Debt Securities authenticated
and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);



     (c) the date or dates or the method or methods, if any, by which such date or dates shall be
determined, on which the principal and premium, if any, of the Debt Securities of the series are
payable;



     (d) the rate or rates (which may be fixed or variable) at which the Debt Securities of the
series shall bear interest, if any, or the method or methods, if any, of determining such rate or
rates, the date or dates from which such interest shall accrue, the interest payment dates on which
such interest shall be payable, or the method by which such date will be determined, in the case of
Registered Securities, the record dates for the determination of Holders thereof to whom such
interest is payable; the notice, if any, to Holders regarding the determination of interest on a
floating rate Debt Security and the manner of giving such notice, and the basis upon which interest
will be calculated if other than that of a 360-day year of twelve thirty-day months;



     (e) the right, if any, to extend the Interest payment periods and the duration of any such
extension, including the maximum consecutive period, if any, during which Interest payment periods
may be extended;



     (f) the place or places, if any, in addition to or instead of the corporate trust office of
the Trustee (in the case of Registered Securities) or the principal London office of the Trustee
(in the case of Bearer Securities), where the principal of, and premium, if any, and interest on,
Debt Securities of the series shall be payable;



     (g) the price or prices at which, the period or periods within which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the
option of the Company or otherwise;



     (h) whether Debt Securities of the series are to be issued as Registered Securities or Bearer
Securities or both, and, if Bearer Securities are to be issued, whether Coupons will be attached
thereto, whether Bearer Securities of the series may be exchanged for Registered Securities of the
series and vice versa, and the circumstances under which and the places at which any such
exchanges, if permitted, may be made;



     (i) if any Debt Securities of the series are to be issued as Bearer Securities or as one or
more Global Securities representing individual Bearer Securities of the series, whether the
provisions of Sections 3.02 and 4.07 or other provisions for payment of additional interest or tax
redemptions shall apply and, if other provisions shall apply, such other provisions; whether
interest in respect of any portion of a temporary Bearer Security of the series (delivered pursuant
to Section 2.10) payable in respect of any interest payment date prior to the exchange of such
temporary Bearer Security for definitive Bearer Securities of the series shall be paid to any
clearing organization with respect to the portion of such temporary Bearer Security held for its



18









 




account and, in such event, the terms and conditions (including any certification requirements)
upon which any such interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such interest payment date; and the terms upon which a
temporary Bearer Security may be exchanged for one or more definitive Bearer Securities of the
series;




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



     (k) the terms, if any, upon which the Debt Securities of the series may be convertible into or
exchanged for Common Stock, Preferred Stock (which may be represented by depositary shares), other
Debt Securities or warrants for Common Stock, Preferred Stock or Indebtedness or other securities
of any kind of the Company or any other obligor and the terms and conditions upon which such
conversion or exchange shall be effected, including the initial conversion or exchange price or
rate, the conversion or exchange period and any other provision in addition to or in lieu of those
described herein;



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



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



     (n) if the principal amount payable at the Stated Maturity of Debt Securities of the series
will not be determinable as of any one or more dates prior to such Stated Maturity, the amount
which will be deemed to be such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity other than the Stated
Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be determined); and the manner of determining
the equivalent thereof in the currency of the United States for purposes of the definition of
Dollar Equivalent;



     (o) any changes or additions to Article XI, including the addition of additional covenants
that may be subject to the covenant defeasance option pursuant to Section 11.02(b);



     (p) if other than such coin or Currency of the United States as at the time of payment is
legal tender for payment of public and private debts, the coin or Currency, or Currencies or units
of two or more Currencies, in which payment of the principal of, and premium, if any, and interest
on, Debt Securities of the series shall be payable;



     (q) if other than the principal amount thereof, the portion of the principal amount of Debt
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02;



     (r) whether or not the Debt Securities of such series shall be issued as Original Issue
Discount Securities and the terms thereof, including the portion of the principal amount thereof



19









 




which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section
6.01;




     (s) any addition to or change in the Events of Default with respect to the Debt Securities of
the series and any change in the right of the Trustee or the Holders to declare the principal of,
and premium and interest on, such Debt Securities due and payable;



     (t) if the Debt Securities of the series shall be issued in whole or in part in the form of a
Global Security or Securities, the terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual Debt Securities in definitive
registered form; and the Depositary for such Global Security or Securities and the form of any
legend or legends to be borne by any such Global Security or Securities in addition to or in lieu
of the legend referred to in Section 2.17(a);



     (u) any trustees, authenticating or paying agents, transfer agents or registrars;



     (v) the applicability of, and any addition to or change in the covenants and definitions
currently set forth in this Indenture or in the terms currently set forth in Article X, including
conditioning any merger, conveyance, transfer or lease permitted by Article X upon the satisfaction
of an Indebtedness coverage standard by the Company and Successor Company (as defined in Article
X);



     (w) any changes or additions to Article XIII;



     (x) with regard to Debt Securities of the series that do not bear interest, the dates for
certain required reports to the Trustee;



     (y) whether the Debt Securities will be issued pursuant to a medium-term note program; and



     (z) any other terms of the Debt Securities of the series (which terms shall not be prohibited
by the provisions of this Indenture).



     All Debt Securities of any one series and the Coupons, if any, appertaining thereto shall be
substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board of Directors and as set forth in such Officers’
Certificate or in any such Indenture supplemental hereto.



     Section 2.06. Execution of Debt Securities. The Debt Securities and the Coupons, if any,
shall be signed on behalf of the Company by its Chairman of the Board, its President, a Vice
President, a Treasurer or an Assistant Treasurer and by its Secretary or an Assistant Secretary.
Such signatures upon the Debt Securities and Coupons may be the manual or facsimile signatures of
the present or any future such authorized officers and may be imprinted or otherwise reproduced on
the Debt Securities and Coupons. The seal of the Company, if any, may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Debt
Securities and Coupons.



     Only such Debt Securities and Coupons as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, signed manually by the Trustee or by any
authenticating agent with respect to such Debt Securities, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate executed by the



20









 




Trustee, or by any authenticating agent appointed by the Trustee with respect to such Debt
Securities, upon any Debt Security or Coupon executed by the Company shall be conclusive evidence
that the Debt Security or Coupon so authenticated has been duly authenticated and delivered
hereunder.




     In case any officer of the Company who shall have signed any of the Debt Securities or Coupons
shall cease to be such officer before the Debt Securities or Coupons so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such Debt Securities or
Coupons nevertheless may be authenticated and delivered or disposed of as though the Person who
signed such Debt Securities or Coupons had not ceased to be such officer of the Company; and any
Debt Security or Coupon may be signed on behalf of the Company by such Persons as, at the actual
date of the execution of such Debt Security or Coupon, shall be the proper officers of the Company,
although at the date of such Debt Security or Coupon or of the execution of this Indenture any such
Person was not such officer.



     Section 2.07. Authentication and Delivery of Debt Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver Debt Securities,
with appropriate Coupons, if any, of any series executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication, delivery of such Debt
Securities, and the Trustee, in accordance with such Company Order, shall thereupon authenticate
and deliver said Debt Securities and Coupons. In authenticating such Debt Securities and Coupons,
and accepting the additional responsibilities under this Indenture in relation to such Debt
Securities and Coupons appertaining thereto, the Trustee shall be entitled to receive, and (subject
to Section 7.01) shall be fully protected in relying upon:



     (a) a copy of any resolution or resolutions of the Board of Directors, certified by the
Secretary or Assistant Secretary of the Company, authorizing the terms of issuance of any series of
Debt Securities and Coupons appertaining thereto;



     (b) an executed supplemental Indenture, if any;



     (c) an Officers’ Certificate; and



     (d) an Opinion of Counsel prepared in accordance with Section 12.05 which shall also state:




	 	(i)	 	that the form of such Debt Securities and Coupons, if any, has been
established by or pursuant to a Board Resolution of the Company or by a supplemental
Indenture as permitted by Section 2.01 in conformity with the provisions of this
Indenture;
	 
	 	(ii)	 	that the terms of such Debt Securities and Coupons, if any, have been
established by or pursuant to a Board Resolution of the Company or by a supplemental
Indenture as permitted by Section 2.05 in conformity with the provisions of this
Indenture;
	 
	 	(iii)	 	that such Debt Securities and Coupons, 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, enforceable in accordance with their terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar




21









 






	 	 	 	laws affecting the enforcement of creditors’ rights generally and rights of
acceleration and the availability of equitable remedies may be limited by equitable
principles of general applicability and such counsel need express no opinion with
regard to the enforceability of Section 7.06;
	 
	 	(iv)	 	that the Company has the corporate power to issue such Debt Securities and
Coupons, and it has duly taken all necessary corporate action with respect to such
issuance;
	 
	 	(v)	 	that authentication and delivery of such Debt Securities and Coupons and the
execution and delivery of any supplemental Indenture will not violate the terms of
this Indenture; and
	 
	 	(vi)	 	such other matters as the Trustee may reasonably request.





     Such Opinion of Counsel need express no opinion as to whether a court in the United States
would render a money judgment in a currency other than that of the United States.



     The Trustee shall have the right to decline to authenticate and deliver any Debt Securities or
Coupons under this Section 2.07 if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors, trustees or vice presidents shall
determine that such action would expose the Trustee to personal liability to existing Holders.



     The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate Debt Securities and Coupons, if any, of any series. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Debt Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as any Registrar, paying agent or agent
for service of notices and demands.



     Unless otherwise provided in the form of Debt Security for any series, each Debt Security
shall be dated the date of its authentication.



     Section 2.08. Denomination of Debt Securities. Unless otherwise provided in the form of Debt
Security for any series, the Debt Securities of each series shall be issuable only as Registered
Securities in such denominations as shall be specified or contemplated by Section 2.05. In the
absence of any such specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $1,000 and any integral multiple
thereof.



     Section 2.09. Registration of Transfer and Exchange.



     (a) The Company shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the “Debt Security Register”),
in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the transfer of Registered Securities as in this
Article II provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.17, upon due presentment for registration of
transfer of any Registered Security at any office or agency to be maintained by the Company in
accordance with the provisions of Section 4.02, the Company shall execute and the Trustee shall



22









 




authenticate and deliver in the name of the transferee or transferees a new Registered
Security or Registered Securities of authorized denominations for a like aggregate principal
amount. In no event may Registered Securities, including Registered Securities received in exchange
for Bearer Securities, be exchanged for Bearer Securities.




     Unless and until otherwise determined by the Company by resolution of the Board of Directors,
the register of the Company for the purpose of registration, exchange or registration of transfer
of the Registered Securities shall be kept at the corporate trust office of the Trustee and, for
this purpose, the Trustee shall be designated “Registrar”.



     Registered Securities of any series (other than a Global Security, except as set forth below)
may be exchanged for a like aggregate principal amount of Registered Securities of the same series
of other authorized denominations. Subject to Section 2.17, Registered Securities to be exchanged
shall be surrendered at the office or agency to be maintained by the Company as provided in Section
4.02, and the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Registered Security or Registered Securities which the Holder making the exchange
shall be entitled to receive.



     At the option of the Holder of Bearer Securities of any series, except as otherwise specified
as contemplated by Section 2.05(h) or 2.05(s) with respect to a Global Security representing Bearer
Securities, Bearer Securities of such series may be exchanged for Registered Securities (if the
Debt Securities of such series are issuable as Registered Securities) or Bearer Securities of the
same series, of any authorized denomination or denominations, of like tenor and aggregate principal
amount, upon surrender of the Bearer Securities to be exchanged at the office or agency of the
Company maintained for such purpose, with all unmatured Coupons and all matured Coupons in Default
thereto appertaining; provided, however, that delivery of a Bearer Security shall occur only
outside the United States. If such Holder is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in Default, such exchange may be effected if such Holder’s
Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in
an amount equal to the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any paying agent
harmless. If thereafter such Holder shall surrender to any paying agent any such missing Coupon in
respect of which such a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in Section 2.11,
interest represented by Coupons shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside the United States.



     Whenever any Debt Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Debt Securities that the Holder making the exchange
is entitled to receive.



     Notwithstanding the foregoing, the exchange of Bearer Securities for Registered Securities
will be subject to the provisions of United States income tax laws and regulations applicable to
Debt Securities in effect at the time of such exchange.



     (b) All Registered Securities presented or surrendered for registration of transfer, exchange
or payment shall (if so required by the Company, the Trustee or the Registrar) be duly endorsed or
be accompanied by a written instrument or instruments of transfer, in form



23









 




satisfactory to the Company, the Trustee and the Registrar, duly executed by the Registered
Holder or his attorney duly authorized in writing.




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



     No service charge shall be made for any exchange or registration of transfer of Debt
Securities (except as provided by Section 2.11), but the Company may require payment of a sum
sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in
relation thereto, other than those expressly provided in this Indenture to be made at the Company’s
own expense or without expense or without charge to the Holders.



     The Company shall not be required (i) to issue, register the transfer of or exchange any Debt
Securities for a period of 15 days next preceding any mailing of notice of redemption of Debt
Securities of such series or (ii) to register the transfer of or exchange any Debt Securities
selected, called or being called for redemption; provided, however, that, if specified pursuant to
Section 2.03, any Bearer Securities of any series that are exchangeable for Registered Securities
and that are called for redemption pursuant to Section 3.02 may, to the extent permitted by
applicable law, be exchanged for one or more Registered Securities of such series during the period
preceding the redemption date therefor.



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



     None of the Company, the Trustee, any agent of the Trustee, any paying agent or any Registrar
will have any responsibility or liability for any aspect of the records relating to, or payments
made on account of, beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.



     Section 2.10. Temporary Debt Securities. Pending the preparation of definitive Debt
Securities of any series, the Company may execute and the Trustee shall authenticate and deliver
temporary Debt Securities (printed, lithographed, photocopied, typewritten or otherwise produced)
of any authorized denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons, and with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities and Coupons, all as may be determined by the Company with
the concurrence of the Trustee. Temporary Debt Securities and Coupons may contain such reference
to any provisions of this Indenture as may be appropriate. Every temporary Debt Security shall be
executed by the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Debt Securities.



     If temporary Debt Securities of any series are issued, the Company will cause definitive
Debt Securities of such series to be prepared without unreasonable delay. Except as otherwise
specified as contemplated by Section 2.05(h) with respect to a series
of Debt Securities issuable as Bearer Securities or as one or more Global Securities representing
individual Bearer Securities




24











 





of the series, (a) after the preparation of definitive Debt Securities of such series, the
temporary Debt Securities of such series shall be exchangeable for definitive Debt Securities of
such series upon surrender of the temporary Debt Securities of such series at the office or agency
of the Company at a Place of Payment for such series, without charge to the Holder thereof, except
as provided in Section 2.09 in connection with a transfer and except that a Person receiving
definitive Bearer Securities shall bear the cost of insurance, postage, transportation and the like
unless otherwise specified pursuant to Section 2.05, and (b) upon surrender for cancellation of any
one or more temporary Debt Securities of any series (accompanied by any unmatured Coupons
appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided, further, however,
that delivery of a Global Security representing individual Bearer Securities or a Bearer Security
shall occur only outside the United States. Until so exchanged, temporary Debt Securities of any
series shall in all respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of such series, except as otherwise specified as contemplated by Section 2.05(h)
with respect to the payment of interest on Global Securities in temporary form.




     Unless otherwise specified pursuant to Section 2.05, the Company will execute and deliver each
definitive Global Security representing individual Bearer Securities and each Bearer Security to
the Trustee at its principal office in London or such other place outside the United States
specified pursuant to Section 2.05.



     Upon any exchange of a portion of a temporary Global Security for a definitive Global Security
or for the individual Debt Securities represented thereby pursuant to Section 2.09 or this Section
2.10, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of
the principal amount evidenced thereby, whereupon the principal amount of such temporary Global
Security shall be reduced for all purposes by the amount to be exchanged and endorsed.



     Section 2.11. Mutilated, Destroyed, Lost or Stolen Debt Securities.



     If (a) any mutilated Debt Security or any mutilated Coupon with the Coupon Security to which
it appertains (and all unmatured Coupons attached thereto) is surrendered to the Trustee at its
corporate trust office (in the case of Registered Securities) or at its principal London office (in
the case of Bearer Securities) or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or any Coupon, and there is
delivered to the Company and the Trustee such security or indemnity as may be required by them to
save each of them and any paying agent harmless, and none of the Company nor the Trustee receives
notice that such Debt Security or Coupon has been acquired by a bona fide purchaser, then the
Company shall execute and, upon a Company Order, the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or stolen Coupon
appertained, a new Debt Security of the same series of like tenor, form, terms and principal
amount, bearing a number not contemporaneously Outstanding, and, in the case of a Coupon Security,
with such Coupons attached thereto that neither gain nor loss in interest shall result from such
exchange or substitution. Upon the issuance of any substituted Debt Security, the Company may
require the payment of a sum sufficient to cover any tax, fee, assessment or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any Debt Security or Coupon which has matured
or is about to mature or which has been called for redemption shall become



25









 





mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted
Debt Security or Coupon, pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated Debt Security or Coupon) if the applicant for such payment shall furnish
the Company and the Trustee with such security or indemnity as either may require to save it
harmless from all risk, however remote, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of such Debt Security
or Coupon and of the ownership thereof; provided, however, that payment of principal of, and
premium, if any, and interest on, Bearer Securities or Coupons shall, except as otherwise provided
in Section 2.14, be payable only at an office or agency located outside the United States.




     Every substituted Debt Security of any series, with its Coupons, if any, issued pursuant to
the provisions of this Section 2.09 by virtue of the fact that any Debt Security or Coupon is
destroyed, lost or stolen shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security or Coupon shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debt Securities of that series and Coupons, if any, duly issued hereunder. All
Debt Securities and Coupons, if any, shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities or Coupons, and shall preclude any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender.



     Section 2.12. Cancellation of Surrendered Debt Securities. All Debt Securities surrendered
for payment, redemption, registration of transfer or exchange and all Coupons surrendered for
payment or exchange shall, if surrendered to the Company or any paying agent or a Registrar, be
delivered to the Trustee for cancellation by it, or if surrendered to the Trustee, shall be
canceled by it, and no Debt Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. All canceled Debt Securities and
Coupons held by the Trustee shall be destroyed (subject to the record retention requirements of the
Exchange Act) and certification of their destruction delivered to the Company, unless otherwise
directed. On request of the Company, the Trustee shall deliver to the Company canceled Debt
Securities and Coupons held by the Trustee. If the Company shall acquire any of the Debt
Securities or Coupons, however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented thereby unless and until the same are delivered or surrendered to
the Trustee for cancellation. The Company may not issue new Debt Securities or Coupons to replace
Debt Securities or Coupons it has redeemed, paid or delivered to the Trustee for cancellation.



     Section 2.13. Provisions of the Indenture and Debt Securities for the Sole Benefit of the
Parties and the Holders. Nothing in this Indenture or in the Debt Securities or Coupons, expressed
or implied, shall give or be construed to give to any Person, other than the parties hereto, the
Holders or any Registrar or paying agent, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein contained; all its
covenants, conditions and provisions being for the sole benefit of the parties hereto, the Holders
and any Registrar and paying agents.



     Section 2.14. Payment of Interest; Interest Rights Preserved.



     (a) Interest on any Registered Security that is payable and is punctually paid or duly
provided for on any interest payment date shall be paid to the Person in whose name such



26









 





Registered Security is registered at the close of business on the regular record date for such
interest notwithstanding the cancellation of such Registered Security upon any transfer or exchange
subsequent to the regular record date. In case a Coupon Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any regular record date and before the opening of
business (at such office or agency) on the next succeeding interest payment date, such Coupon
Security shall be surrendered without the Coupon relating to such interest payment date and
interest will not be payable on such interest payment date in respect of the Registered Security
issued in exchange for such Coupon Security, but will be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture. Payment of interest on Registered
Securities shall be made at the corporate trust office of the Trustee (except as otherwise
specified pursuant to Section 2.05), or at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address shall appear in the Debt Security Register
or, if provided pursuant to Section 2.05 and in accordance with arrangements satisfactory to the
Trustee, at the option of the Registered Holder by wire transfer to an account designated by the
Registered Holder.




     (b) No interest shall be payable with respect to a Bearer Security or Coupon unless such
certification requirements as are specified pursuant to Section 2.05(h) are satisfied with respect
to such Bearer Security or Coupon. Interest on any Coupon Security that is payable and is
punctually paid or duly provided for on any interest payment date shall be paid to the Holder of
the Coupon that has matured on such interest payment date upon surrender of such Coupon on such
interest payment date at the principal London office of the Trustee or at such other Place of
Payment outside the United States specified pursuant to Section 2.05.



     Interest on any Bearer Security (other than a Coupon Security) that is payable and is
punctually paid or duly provided for on any interest payment date shall be paid to the Holder of
the Bearer Security upon presentation of such Bearer Security and notation thereon on such interest
payment date at the principal London office of the Trustee or at such other Place of Payment
outside the United States specified pursuant to Section 2.05.



     Unless otherwise specified pursuant to Section 2.05, at the direction of the Holder of any
Bearer Security or Coupon payable in Dollars, and subject to applicable laws and regulations,
payments in respect of such Bearer Security or Coupon will be made by check drawn on a bank in New
York, New York, or, in accordance with arrangements satisfactory to the Trustee, by wire transfer
to a Dollar account maintained by such Holder with a bank outside the United States. If such
payment at the offices of all paying agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar restrictions on the
full payment or receipt of such amounts in Dollars, then, to the extent permitted by United States
tax law, the Company will appoint an office or agent in the United States at which such payment may
be made. Unless otherwise specified pursuant to Section 2.05, at the direction of the Holder of any
Bearer Security or Coupon payable in a Foreign Currency, payment on such Bearer Security or Coupon
will be made by a check drawn on a bank outside the United States or, in accordance with
arrangements satisfactory to the Trustee, by wire transfer to an appropriate account maintained by
such Holder outside the United States. Except as provided in this paragraph, no payment on any
Bearer Security or Coupon will be made by mail to an address in the United States or by transfer to
an account in the United States.



     (c) Subject to the foregoing provisions of this Section 2.14 and Section 2.19, each Debt
Security of a particular series delivered under this Indenture upon registration of transfer of or
in



27









 





exchange for or in lieu of any other Debt Security of the same series shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.




  Section 2.15. Securities Denominated in Foreign Currencies.



     (a) Except as otherwise specified pursuant to Section 2.05 for Bearer Securities of any
series, payment of the principal of, and premium, if any, and interest on, Bearer Securities of
such series denominated in any Currency will be made in such Currency.



     (b) Except as otherwise specified pursuant to Section 2.05 for Registered Securities of any
series, payment of the principal of, and premium, if any, and interest on, Registered Securities of
such series will be made in Dollars.



     (c) For the purposes of calculating the principal amount of Debt Securities of any series
denominated in a Foreign Currency or in units of two or more Foreign Currencies (including European
Currency Units) for any purpose under this Indenture, the principal amount of such Debt Securities
at any time Outstanding shall be deemed to be the Dollar Equivalent of such principal amount as of
the date of any such calculation.



     In the event any Foreign Currency or currencies or units of two or more Currencies in which
any payment with respect to any series of Debt Securities may be made ceases to be a freely
convertible Currency on United States Currency markets, for any date thereafter on which payment of
principal of, or premium, if any, or interest on, the Debt Securities of a series is due, the
Company shall select the Currency of payment for use on such date, all as provided in the Debt
Securities of such series. In such event, the Company shall, as provided in the Debt Securities of
such series, notify the Trustee of the Currency which it has selected to constitute the funds
necessary to meet the Company’s obligations on such payment date and of the amount of such Currency
to be paid. Such amount shall be determined as provided in the Debt Securities of such series.
The payment to the Trustee with respect to such payment date shall be made by the Company solely in
the Currency so selected.



     Section 2.16. Wire Transfers. Notwithstanding any other provision to the contrary in this
Indenture, the Company may make any payment of monies required to be deposited with the Trustee on
account of principal of, or premium, if any, or interest on, the Debt Securities (whether pursuant
to optional or mandatory redemption payments, interest payments or otherwise) by wire transfer in
immediately available funds to an account designated by the Trustee on or before the date such
monies are to be paid to the Holders of the Debt Securities in accordance with the terms hereof.



     Section 2.17. Securities Issuable in the Form of a Global Security.



     (a) If the Company shall establish pursuant to Sections 2.01 and 2.05 that the Debt
Securities of a particular series are to be issued in whole or in part in the form of one or more
Global Securities, then the Company shall execute and the Trustee or its agent shall, in accordance
with Section 2.04, authenticate and deliver, such Global Security or Securities, which shall
represent, and shall be denominated in an amount equal to the aggregate principal amount of, the
Outstanding Debt Securities of such series to be represented by such Global Security or Securities,
or such portion thereof as the Company shall specify in an Officer’s Certificate, shall be
registered in the name of the Depositary for such Global Security or Securities or its nominee,
shall be delivered by the Trustee or its agent to the Depositary or pursuant to the Depositary’s
instruction and shall bear a legend substantially to the following effect:



28









 





“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
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.”




     (b) Notwithstanding any other provision of this Section 2.17 or of Section 2.09 to the
contrary, and subject to the provisions of paragraph (c) below, unless the terms of a Global
Security expressly permit such Global Security to be exchanged in whole or in part for definitive
Debt Securities in registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.09, only by the Depositary to a nominee of the Depositary
for such Global Security, or by a nominee of the Depositary to the Depositary or another nominee of
the Depositary, or by the Depositary or a nominee of the Depositary to a successor Depositary for
such Global Security selected or approved by the Company, or to a nominee of such successor
Depositary.



     (c) (i) If at any time the Depositary for a Global Security or Securities notifies the
Company that it is unwilling or unable to continue as Depositary for such Global Security or
Securities or if at any time the Depositary for the Debt Securities for such series shall no longer
be eligible or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to such Global Security
or Securities. If a successor Depositary for such Global Security or Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company shall execute, and the Trustee or its agent, upon receipt of a Company
Order for the authentication and delivery of such individual Debt Securities of such series in
exchange for such Global Security, will authenticate and deliver, individual Debt Securities of
such series of like tenor and terms in definitive form in an aggregate principal amount equal to
the principal amount of the Global Security in exchange for such Global Security or Securities.


          (ii) The Company may at any time and in its sole discretion determine that the Debt
Securities of any series or portion thereof issued or issuable in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Debt Securities of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual Debt Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to the principal amount
of such series or portion thereof in exchange for such Global Security or Securities.


          (iii) If specified by the Company pursuant to Sections 2.01 and 2.05 with respect to Debt
Securities issued or issuable in the form of a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for individual Debt
Securities of such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the Company



29









 








shall execute, and the Trustee or its agent upon receipt of a Company Order for the authentication
and delivery of definitive Debt Securities of such series shall authenticate and deliver, without
service charge, to each Person specified by such Depositary a new Debt Security or Securities of
the same series of like tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and to such Depositary a new Global Security of like tenor and terms and
in an authorized denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Debt Securities delivered to
Holders thereof.



          (iv) In any exchange provided for in any of the preceding three paragraphs, the Company will
execute and the Trustee or its agent will authenticate and deliver individual Debt Securities. In
case a Coupon Security of any series is surrendered in exchange for a Registered Security of such
series after the close of business (at an office or agency in a Place of Payment for such series)
on any special record date and before the opening of business (at such office or agency) on the
related proposed date of payment of Defaulted Interest, such Coupon Security shall be surrendered
without the Coupon relating to such proposed date of payment and Defaulted Interest will not be
payable on such proposed date of payment in respect of the Registered Security issued in exchange
for such Coupon Security, but will be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture. Upon the exchange of the entire principal amount
of a Global Security for individual Debt Securities, such Global Security shall be canceled by the
Trustee or its agent. Except as provided in the preceding paragraph, Registered Securities issued
in exchange for a Global Security pursuant to this Section 2.17 shall be registered in such names
and in such authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or
the Registrar. The Trustee or the Registrar shall deliver such Registered Securities to the Persons
in whose names such Registered Securities are so registered.


          (v) Payments in respect of the principal of and interest on any Debt Securities registered
in the name of the Depositary or its nominee will be payable to the Depositary or such nominee in
its capacity as the registered owner of such Global Security. The Company and the Trustee may treat
the Person in whose name the Debt Securities, including the Global Security, are registered as the
owner thereof for the purpose of receiving such payments and for any and all other purposes
whatsoever. None of the Company, the Trustee, any Registrar, the paying agent or any agent of the
Company or the Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary’s direct or indirect
participants, or for maintaining, supervising or reviewing any records of the Depositary, its
nominee or any of its direct or indirect participants relating to the beneficial ownership
interests of the Global Security, the payments to the beneficial owners of the Global Security of
amounts paid to the Depositary or its nominee, or any other matter relating to the actions and
practices of the Depositary, its nominee or any of its direct or indirect participants. None of the
Company, the Trustee or any such agent will be liable for any delay by the Depositary, its nominee,
or any of its direct or indirect participants in identifying the beneficial owners of the Debt
Securities, and the Company and the Trustee may conclusively rely on, and will be protected in
relying on, instructions from the Depositary or its nominee for all purposes (including with
respect to the registration and delivery, and the respective principal amounts, of the Debt
Securities to be issued).



     The Trustee shall deliver individual Bearer Securities issued in exchange for a Global
Security pursuant to this Section 2.17 to the Persons and in such authorized denominations as the



30









 





Depositary for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; provided, however, that individual Bearer
Securities shall be delivered in exchange for a Global Security only in accordance with the
procedures as may be specified pursuant to Section 2.05.




     Notwithstanding the foregoing, the exchange of Bearer Securities for Registered Securities
will be subject to the provisions of United States income tax laws and regulations applicable to
debt Securities in effect at the time of such exchange.



     Section 2.18. Medium Term Securities. Notwithstanding any contrary provision herein, if all
Debt Securities of a series are not to be originally issued at one time, it shall not be necessary
for the Company to deliver to the Trustee an Officers’ Certificate, Board Resolutions, supplemental
Indenture, Opinion of Counsel or written order or any other document otherwise required pursuant to
Section 2.01, 2.05, 2.07 or 12.05 at or prior to the time of authentication of each Debt Security
of such series if such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such series to be issued;
provided, that any subsequent request by the Company to the Trustee to authenticate Debt Securities
of such series upon original issuance shall constitute a representation and warranty by the Company
that, as of the date of such request, the statements made in the Officers’ Certificate delivered
pursuant to Section 2.07 or 12.05 shall be true and correct as if made on such date and that the
Opinion of Counsel delivered at or prior to such time of authentication of an original issuance of
Debt Securities shall specifically state that it shall relate to all subsequent issuances of Debt
Securities of such series that are identical to the Debt Securities issued in the first issuance of
Debt Securities of such series.



     A Company Order delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph, may provide that Debt Securities which are the subject thereof will be
authenticated and delivered by the Trustee or its agent on original issue from time to time upon
the telephonic or written order of Persons designated in such written order (any such telephonic
instructions to be promptly confirmed in writing by such Person) and that such Persons are
authorized to determine, consistent with the Officers’ Certificate, supplemental Indenture or
resolution of the Board of Directors relating to such written order, such terms and conditions of
such Debt Securities as are specified in such Officers’ Certificate, supplemental Indenture or such
resolution.



     Section 2.19. Defaulted Interest. Any interest on any Debt Security of a particular series
which is payable, but is not punctually paid or duly provided for, on the dates and in the manner
provided in the Debt Securities of such series and in this Indenture (herein called “Defaulted
Interest”) shall, if such Debt Security is a Registered Security, forthwith cease to be payable to
the Registered Holder thereof on the relevant record date by virtue of having been such Registered
Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or (ii) below:



     (i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Registered Securities of such series 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 such Registered 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



31









 





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 mailed, first class postage pre-paid, to each Holder thereof at its address as it
appears in the Security Register, 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 Registered
Securities of such series are registered at the close of business on such special record date. In
case a Coupon Security of any such series is surrendered in exchange for a Registered Security of
such series after the close of business (at an office or agency in a Place of Payment for such
series) on any special record date and before the opening of business (at such office or agency) on
the related proposed date of payment of Defaulted Interest, such Coupon Security shall be
surrendered without the Coupon relating to such proposed date of payment and Defaulted Interest
will not be payable on such proposed date of payment in respect of the Registered Security issued
in exchange for such Coupon Security, but will be payable only to the Holder of such Coupon when
due in accordance with the provisions of this Indenture.




     (ii) The Company may make payment of any Defaulted Interest on the Registered Securities of
such series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Registered Securities of such series 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.



     (b) Any Defaulted Interest payable in respect of Bearer Securities of any series shall be
payable pursuant to such procedures as may be satisfactory to the Trustee in such manner that there
is no discrimination between the Holders of Registered Securities (if any) and Bearer Securities of
such series, and notice of the payment date therefor shall be given by the Trustee, in the name and
at the expense of the Company, in the manner provided in Section 12.03 not more than 25 days and
not less than 20 days prior to the date of the proposed payment.



     Section 2.20. Judgments. The Company may provide pursuant to Section 2.05 for Debt Securities
of any series that the obligation, if any, of the Company to pay the principal of, and premium, if
any, and interest on, the Debt Securities of any series in a Foreign Currency or Dollars (the
“Designated Currency”) as may be specified pursuant to Section 2.05 is of the essence and agrees
that, to the fullest extent possible under applicable law, judgments in respect of Debt Securities
of such series shall be given in the Designated Currency; the obligation of the Company to make
payments in the Designated Currency of the principal of, and premium, if any, and interest on, such
Debt Securities shall, notwithstanding any payment in any other Currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the Designated Currency
that the Holder receiving such payment may, in accordance with normal banking procedures, purchase
with the sum paid in such other Currency (after any premium and cost of exchange) on the business
day in the country of issue of the Designated Currency or in the international banking community
(in the case of a composite currency) immediately following the day on which such Holder receives
such payment; if the amount in the Designated Currency that may be so purchased for any reason
falls short of the amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and any



32









 





obligation of the Company not discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full force and effect.




     Section 2.21. CUSIP Numbers. The Company in issuing the Debt Securities may use “CUSIP”
numbers (in addition to the other identification numbers printed on the Debt Securities), and, if
so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the accuracy of such
numbers either as printed on the Debt Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on the Debt
Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.



ARTICLE III

REDEMPTION OF DEBT SECURITIES




     Section 3.01. Applicability of Article. The provisions of this Article shall be applicable to
the Debt Securities of any series which are redeemable before their Stated Maturity except as
otherwise specified as contemplated by Section 2.05 for Debt Securities of such series.



     Section 3.02. Tax Redemption; Special Tax Redemption.



     (a) Unless otherwise specified pursuant to Section 2.05, Bearer Securities of any series may
be redeemed at the option of the Company in whole, but not in part, at any time, on giving not less
than 30 or more than 60 days’ notice in accordance with Section 3.03 (which notice shall be
irrevocable), at the redemption price thereof (calculated without premium), if the Company has or
will become obligated to pay additional interest on such Bearer Securities pursuant to Section 4.07
as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated
thereunder) of the United States or any political subdivision or taxing authority thereof or
therein, or any change in the application or official interpretation of such laws, regulations or
rulings, which change or amendment becomes effective on or after the date on which any Person
(including any Person acting as underwriter, broker or dealer) agrees to purchase any of such
Bearer Securities pursuant to their original issuance, and such obligation cannot be avoided by the
Company taking reasonable measures available to it; provided, that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the Company would be
obligated to pay such additional interest were a payment in respect of the Bearer Securities of
that series then due. Prior to the publication of any notice of redemption pursuant to this
Section 3.02(a), the Company shall deliver to the Trustee an Officers’ Certificate stating that the
Company is entitled to effect such redemption and setting forth a statement of facts showing that
the conditions precedent to the right of the Company so to redeem have occurred and an Opinion of
Counsel to the effect that the Company has or will become obligated to pay such additional interest
as a result of such change or amendment.



     (b) Unless otherwise specified pursuant to Section 2.05, if the Company shall determine that
any payment made outside the United States by the Company or any of its paying agents in respect of
any Bearer Security or Coupon would, under any present or future laws or regulations of the United
States, be subject to any certification, documentation, information or other reporting requirement
of any kind, the effect of which requirement is the disclosure to the Company, any paying agent or
any governmental authority of the nationality, residence or identity of a beneficial owner of such
Bearer Security or Coupon that is a United States Alien (other than such a



33









 





requirement that would not be applicable to a payment made by the Company or any one of its
paying agents directly to the beneficial owner or to a custodian, nominee or other agent of the
beneficial owner, or that can be satisfied by such custodian, nominee or other agent certifying to
the effect that the beneficial owner is a United States Alien; provided, that, in any case referred
to in clause (i)(B) or (ii), payment by the custodian, nominee or agent to the beneficial owner is
not otherwise subject to any such requirement), then the Company shall elect either to redeem such
Bearer Security or Coupon in whole, but not in part, at the redemption price thereof (calculated
without premium) or if the conditions of the next succeeding paragraph are satisfied, to pay the
additional interest specified in such paragraph. The Company shall make such determination as soon
as practicable and publish prompt notice thereof (the “Determination Notice”), stating the
effective date of such certification, documentation, information or other reporting requirement,
whether the Company elects to redeem the Bearer Security or Coupon or to pay the additional
interest specified in the next succeeding paragraph and (if applicable) the last date by which the
redemption of the Bearer Security or Coupon must take place, as provided in the next succeeding
sentence. If any Bearer Security or Coupon is to be redeemed pursuant to this paragraph, the
redemption shall take place on such date, not later than one year after the publication of the
Determination Notice, as the Company shall specify by notice given to the Trustee at least 60 days
before the redemption date. Notice of such redemption shall be given by the Company to the Holders
of the Bearer Security or Coupon not more than 60 days or less than 30 days prior to the redemption
date. Notwithstanding the foregoing, the Company shall not so redeem the Bearer Security or Coupon
if the Company shall subsequently determine, not less than 30 days prior to the redemption date,
that subsequent payments on the Bearer Security or Coupon would not be subject to any such
certification, documentation, information or other reporting requirement, in which case the Company
shall publish prompt notice of such subsequent determination, and any earlier redemption notice
given pursuant to this paragraph shall be revoked and of no further effect. Prior to the
publication of any Determination Notice pursuant to this paragraph, the Company shall deliver to
the Trustee an Officers’ Certificate stating that the Company is entitled to make such
determination and setting forth a statement of facts showing that the conditions precedent to the
obligation of the Company to redeem the Bearer Security or Coupon or to pay the additional interest
specified in the next succeeding paragraph have occurred and an Opinion of Counsel to the effect
that such conditions have occurred.




     If and so long as the certification, documentation, information or other reporting requirement
referred to in the preceding paragraph would be fully satisfied by payment of a backup withholding
tax or similar charge, the Company may elect to pay as additional interest such amounts as may be
necessary so that every net payment made outside the United States following the effective date of
such requirement by the Company or any of its paying agents in respect of any Bearer Security or
Coupon of which the beneficial owner is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to the Company, any paying
agent or any governmental authority), after deduction or withholding for or on account of such
backup withholding tax or similar charge that (x) would not be applicable in the circumstances
referred to in the parenthetical clause of the first sentence of the preceding paragraph or (y) is
imposed as a result of presentation of any such Bearer Security or Coupon for payment more than 15
days after the date on which such payment became due and payable or on which payment thereof was
duly provided for, whichever occurred later), will not be less than the amount provided in any such
Bearer Security or Coupon to be then due and payable. If the Company elects to pay additional
interest pursuant to this paragraph, the Company shall have the right to redeem the Bearer Security
or Coupon at any time in whole, but not in part, at the redemption price thereof (calculated
without premium), subject to the provisions of the last three sentences of the immediately
preceding paragraph. If the Company elects to pay additional interest pursuant to this paragraph
and the condition specified in the first



34









 





sentence of this paragraph should no longer be satisfied, then the Company shall redeem the Bearer
Security or Coupon in whole, but not in part, at the redemption price thereof (calculated without
premium), subject to the provisions of the last three sentences of the immediately preceding
paragraph. Any redemption payments made by the Company pursuant to the two immediately preceding
sentences shall be subject to the continuing obligation of the Company to pay additional interest
pursuant to this paragraph. If the Company elects to, or is required to, redeem the Bearer
Security or Coupon pursuant to this paragraph, it shall publish prompt notice thereof. If the
Bearer Security or Coupon is to be redeemed pursuant to this paragraph, the redemption shall take
place on such date, not later than one year after publication of the notice of redemption, as the
Company shall specify by notice to the Trustee at least 60 days prior to the redemption date.




     Section 3.03. Notice of Redemption; Selection of Debt Securities. In case the Company shall
desire to exercise the right to redeem all or, as the case may be, any part of the Debt Securities
of any series in accordance with their terms, a Board Resolution of the Company or a supplemental
Indenture, the Company shall fix a date for redemption and shall give notice of such redemption at
least 30 and not more than 60 days prior to the date fixed for redemption to the Holders of Debt
Securities of such series so to be redeemed as a whole or in part, in the manner provided in
Section 12.03. The notice if given in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice. In any case, failure to give
such notice or any defect in the notice to the Holder of any Debt Security of a series designated
for redemption as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debt Security of such series.



     Each such notice of redemption shall specify:




	 	(i)	 	the date fixed for redemption,
	 
	 	(ii)	 	the redemption price at which Debt Securities of such series are to be
redeemed,
	 
	 	(iii)	 	the Place or Places of Payment that payment will be made upon presentation
and surrender of such Debt Securities,
	 
	 	(iv)	 	that any interest accrued to the date fixed for redemption will be paid as
specified in said notice,
	 
	 	(v)	 	that the redemption is for a sinking fund payment (if applicable),
	 
	 	(vi)	 	that, unless otherwise specified in such notice, Coupon Securities of any
series, if any, surrendered for redemption must be accompanied by all Coupons maturing
subsequent to the date fixed for redemption, failing which the amount of any such
missing Coupon or Coupons will be deducted from the redemption price,
	 
	 	(vii)	 	if the Bearer Securities of any series are to be redeemed and any Registered
Securities of such series are not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to redemption on the applicable
redemption date pursuant to Section 2.17(c) or otherwise, the last date on which such
exchanges may be made,
	 
	 	(viii)	 	that, if the Company defaults in making such redemption payment or, the paying agent
is prohibited from making such payment pursuant to the terms of this Indenture,
	 
	 	(ix)	 	that on and after said date any interest thereon or on the portions thereof
to be redeemed will cease to accrue,
	 
	 	(x)	 	that in the case of Original Issue Discount Securities original issue
discount accrued after the date fixed for redemption will cease to accrue, the terms
of the Debt Securities of that series pursuant to which the Debt Securities of that
series are being redeemed and




35









 






	 	(xi)	 	that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Debt Securities of that
series.





     If less than all the Debt Securities of a series are to be redeemed the notice of redemption
shall specify the CUSIP numbers of the Debt Securities of that series to be redeemed. In case any
Debt Security of a series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on and after the date
fixed for redemption, upon surrender of such Debt Security, a new Debt Security or Debt Securities
of that series in principal amount equal to the unredeemed portion thereof, and in the case of a
Bearer Security with appropriate Coupons, if any, will be issued.



     At least 45 days but not more than 60 days before the redemption date unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of the redemption date,
the principal amount of Debt Securities to be redeemed and the series and terms of the Debt
Securities pursuant to which such redemption will occur. Such notice shall be accompanied by an
Officers’ Certificate and an Opinion of Counsel from the Company to the effect that such redemption
will comply with the conditions herein. If fewer than all the Debt Securities of a series are to
be redeemed, the record date relating to such redemption shall be selected by the Company and given
to the Trustee, which record date shall be not less than 15 days after the date of notice to the
Trustee.



     If less than all the Debt Securities of like tenor and terms of a series are to be redeemed
(other than pursuant to mandatory sinking fund redemptions) the Trustee shall select, on a pro rata
basis, by lot or by such other method as in its sole discretion it shall deem appropriate and fair,
the Debt Securities of that series or portions thereof (in multiples of $1,000) to be redeemed. In
any case where more than one Registered Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal amount so registered as if it were
represented by one Registered Security of such series. The Trustee shall promptly notify the
Company in writing of the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be redeemed. If any
Debt Security called for redemption shall not be so paid upon surrender thereof on such redemption
date, the principal, premium, if any, and interest shall bear interest until paid from the
redemption date at the rate borne by the Debt Securities of that series. If less than all the Debt
Securities of unlike tenor and terms of a series are to be redeemed, the particular Debt Securities
to be redeemed shall be selected by the Company. Provisions of this Indenture that apply to Debt
Securities called for redemption also apply to portions of Debt Securities called for redemption.



     Section 3.04. Deposit of Redemption Price. On or prior to 10:00 a.m., New York City time, on
any redemption date for any Registered Securities, 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) an amount of money in the Currency in which such Debt Securities are denominated (except as
provided pursuant to Section 2.05) sufficient to pay the redemption price of such Registered
Securities or any portions thereof that are to be redeemed on that date. In the case of any
redemption pertaining to Bearer Securities or Coupon Securities, the Company shall, no later than
the business day prior to such redemption date, deposit with the Trustee or with a paying agent
(other than the Company) an amount of money in the Currency in which such Debt Securities are
denominated (except as provided pursuant to Section 2.05) sufficient to pay the redemption price of
such Bearer or Coupon Securities or any portion thereof that are to be redeemed on the redemption
date.



36









 





     Section 3.05. Payment of Debt Securities Called for Redemption. If notice of redemption has
been given as provided in Section 3.03, the Debt Securities or portions of Debt Securities of the
series with respect to which such notice has been given shall become due and payable on the date
and at the Place or Places of Payment stated in such notice at the applicable redemption price,
together with any interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Debt Securities at the applicable
redemption price, together with any interest accrued to said date) any interest on the Debt
Securities or portions of Debt Securities of any series so called for redemption shall cease to
accrue, any original issue discount in the case of Original Issue Discount Securities shall cease
to accrue and any Coupons for such interest appertaining to any Coupon Securities to be redeemed,
except to the extent described below, shall be void. On presentation and surrender of such Debt
Securities at the Place or Places of Payment in said notice specified, the said Debt Securities or
the specified portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with any interest accrued thereon to the date fixed for redemption.



     If any Coupon Security surrendered for redemption shall not be accompanied by all Coupons
appertaining thereto maturing on or after the applicable redemption date, the redemption price for
such Coupon Security may be reduced by an amount equal to the face amount of all such missing
Coupons. If thereafter the Holder of such Coupon shall surrender to any paying agent outside the
United States any such missing Coupon in respect of which a deduction shall have been made from the
redemption price, such Holder shall be entitled to receive the amount so deducted. The surrender
of such missing Coupon or Coupons may be waived by the Company and the Trustee, if there be
furnished to them such security or indemnity as they may require to save each of them and any
paying agent harmless.



     Any Debt Security that is to be redeemed only in part shall be surrendered at the corporate
trust office or such other office or agency of the Company as is specified pursuant to Section 2.05
(in the case of Registered Securities) and at the principal London office of the Trustee or such
other office or agency of the Company outside the United States as is specified pursuant to Section
2.05 (in the case of Bearer Securities) with, if the Company, the Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company, the Registrar and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge, a new Debt Security or Debt
Securities of the same series, of like tenor and form, 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 Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached; except that if a Global Security is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In the case of a Debt
Security providing appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.



     Section 3.06. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund
payment provided for by the terms of Debt Securities of any series, resolution of the Board of
Directors or a supplemental Indenture 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



37









 





Debt Securities of any series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as an “optional sinking fund payment”.




     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Debt Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Debt
Securities of that series (together with the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company or (b) receive credit for the principal
amount of Debt Securities of that series which have been redeemed either at the election of the
Company pursuant to the terms of such Debt Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, that such Debt Securities have not been previously so credited.
Such Debt Securities shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Debt Securities, resolution or supplemental Indenture for
redemption through operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.



     Section 3.07. Redemption of Debt Securities for Sinking Fund. Not less than 45 days prior to
each sinking fund payment date for any series of Debt Securities, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, any resolution or supplemental Indenture, the
portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the
Debt Securities of such series are denominated (except as provided pursuant to Section 2.05) and
the portion thereof, if any, which is to be satisfied by delivering and crediting Debt Securities
of that series pursuant to this Section 3.07 (which Debt Securities, if not previously redeemed,
will accompany such certificate) and whether the Company intends to exercise its right to make any
permitted optional sinking fund payment with respect to such series. Such certificate shall also
state that no Event of Default has occurred and is continuing with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company to deliver such certificate (or to deliver the Debt Securities
and Coupons, if any, specified in this paragraph) shall not constitute a Default, but such failure
shall require that the sinking fund payment due on the next succeeding sinking fund payment date
for that series shall be paid entirely in cash and shall be sufficient to redeem the principal
amount of such Debt Securities subject to a mandatory sinking fund payment without the option to
deliver or credit Debt Securities as provided in this Section 3.07 and without the right to make
any optional sinking fund payment, if any, with respect to such series.



     Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000
(or a lesser sum if the Company shall so request) with respect to the Debt Securities of any
particular series shall be applied by the Trustee on the sinking fund payment date on which such
payment is made (or, if such payment is made before a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of such Debt Securities at
the Redemption Price specified in such Debt Securities, resolution or supplemental Indenture for
operation of the sinking fund together with any accrued interest to the date fixed for redemption.
Any sinking fund monies not so applied or allocated by the Trustee to the redemption of Debt
Securities shall be added to the next cash sinking fund payment received by the Trustee for such
series and, together with such payment, shall be applied in accordance with the provisions of this
Section 3.07. Any and all sinking fund monies with respect to the Debt Securities of any
particular series held by the Trustee on the last sinking fund payment date



38









 





with respect to Debt Securities of such series and not held for the payment or redemption of
particular Debt Securities shall be applied by the Trustee, together with other monies, if
necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Debt
Securities of that series at its Stated Maturity.




     The Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in the last paragraph of Section 3.03 and the Company shall cause
notice of the redemption thereof to be given in the manner provided in Section 3.03 except that the
notice of redemption shall also state that the Debt Securities are being redeemed by operation of
the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall
be made upon the terms and in the manner stated in Section 3.05.



     At least one business day before each sinking fund payment date, the Company shall pay to the
Trustee (or, if the Company is acting as its own paying agent, the Company shall segregate and hold
in trust) in cash a sum in the Currency in which the Debt Securities of such series are denominated
(except as provided pursuant to Section 2.05) equal to any interest accrued to the date fixed for
redemption of Debt Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 3.07.



     The Trustee shall not redeem any Debt Securities of a series with sinking fund monies or mail
any notice of redemption of such Debt Securities by operation of the sinking fund for such series
during the continuance of a Default in payment of interest on such Debt Securities or of any Event
of Default (other than an Event of Default occurring as a consequence of this paragraph) with
respect to such Debt Securities, except that if the notice of redemption of any such Debt
Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III. Except as aforesaid, any
monies in the sinking fund for such series at the time when any such Default or Event of Default
shall occur and any monies thereafter paid into such sinking fund shall, during the continuance of
such Default or Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Event of Default or Default shall have been cured or waived as
provided herein, such monies shall thereafter be applied on the next sinking fund payment date for
such Debt Securities on which such monies may be applied pursuant to the provisions of this Section
3.07.



ARTICLE IV

PARTICULAR COVENANTS OF THE COMPANY




     Section 4.01. Payment of Principal of, and Premium, If Any, and Interest On, Debt Securities.



     (a) The Company, for the benefit of each series of Debt Securities, will duly and punctually
pay or cause to be paid the principal of, and premium, if any, and interest on, each of the Debt
Securities and pay any Coupons at the place, at the respective times and in the manner provided
herein, in the Debt Securities and in the Coupons. Each installment of interest on the Debt
Securities may at the Company’s option be paid by mailing checks for such interest payable to the
Person entitled thereto pursuant to Section 2.09(a) to the address of such Person as it appears on
the Debt Security Register. Any interest due on Coupon Securities on or before the Stated Maturity
of the related Debt Security, other than additional interest, if any, payable as provided in
Section 4.06 in respect of principal of, or premium, if any, on such a Debt Security,



39









 





shall be payable only upon presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature.




     Principal, premium and interest of Debt Securities of any series shall be considered paid on
the date due if on such date the Trustee or any paying agent holds in accordance with this
Indenture money sufficient to pay in the Currency in which the Debt Securities of such series are
denominated (except as provided pursuant to Section 2.05) all principal, premium and interest then
due and, the Trustee or such paying agent, as the case may be, is not prohibited from paying such
money to the Holders on that date pursuant to the terms of this Indenture.



     The Company shall pay interest on overdue principal at the rate specified therefor in the Debt
Securities and it shall pay interest on overdue installments of interest at the same rate to the
extent lawful.



     (b) Notwithstanding the provisions of Section 4.01(a) or any other provision herein to the
contrary, the Company shall have the right, as provided in an Officer’s Certificate or supplemental
indenture issued pursuant to Article IX, in its sole and absolute discretion at any time and from
time to time while the Debt Securities of any series are outstanding, so long as no Event of
Default with respect to such series of Debt Securities has occurred and is continuing, to defer
payments of Interest by extending the Interest payment period for such series of Debt Securities
for the maximum consecutive period, if any, specified for such series of Debt Securities, provided
that such extension period must end on an Interest payment date and shall not extend beyond the
Stated Maturity or Redemption Date of any Debt Security of such series, and provided further that
at the end of each extension period the Company shall pay all Interest then accrued and unpaid
(together with Interest thereon to the extent permitted by applicable law at the rate accruing on
such Debt Securities). Prior to the termination of an extension period, the Company may shorten or
may further extend the Interest payment period for such series of Debt Securities, provided that
such extension period together with all such previous and further extensions may not exceed the
maximum consecutive period specified for such series of Debt Securities, end on a date other than
an Interest payment date or extend beyond the Stated Maturity or Redemption Date of any Debt
Security of such series. The Company shall give the Trustee notice of the Company’s election to
begin an extension period for any series of Debt Securities and any shortening or extension thereof
at least five Business Days prior to: (i) the date notice of payment of Interest on such Debt
Securities is required to be given to any national securities exchange on which the Debt Securities
are then listed or other applicable self-regulatory organization, or (ii) the date of the notice of
the record or payment date of the related distribution on the Debt Securities, but in any event not
less than five Business Days prior to the Record Date fixed by the Company for the payment of such
Interest. The Company shall give or cause the Trustee to give notice (a form of which shall be
provided by the Company to the Trustee) of the Company’s election to begin an extension period to
the Holders by first class mail, postage prepaid.



     Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange and
Payment of Debt Securities. The Company will maintain in each Place of Payment for any series of
Debt Securities and Coupons, if any, an office or agency where Debt Securities and Coupons of such
series (but, except as otherwise provided in Section 2.14, unless such Place of Payment is located
outside the United States, not Bearer Securities or Coupons) may be presented or surrendered for
payment, where Debt Securities of such series may be surrendered for transfer or exchange and where
notices and demands to or upon the Company in respect of the Debt Securities and Coupons of such
series and this Indenture may be served. So long as any Bearer Securities of any series remain
outstanding, the Company will maintain for



40









 





such purposes one or more offices or agencies outside the United States in such city or cities
specified pursuant to Section 2.05 and, if any Bearer Securities are listed on a securities
exchange that requires an office or agency for the payment of principal of, and premium, if any, or
interest on, such Bearer Securities in a location other than the location of an office or agency
specified pursuant to Section 2.05, the Company will maintain for such purposes an office or agency
in such location so long as any Bearer Securities are listed on such securities exchange and such
exchange so requires. 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 (in the case of Registered Securities) and at the principal London
office of the Trustee (in the case of Bearer Securities), and the Company hereby appoints the
Trustee as its agent to receive all presentations, surrenders, notices and demands.




     The Company may also from time to time designate different or additional offices or agencies
to be maintained for such purposes (in or outside of such Place of Payment), and may from time to
time rescind any such designation; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional designation or
rescission of designation and any change in the location of any such different or additional office
or agency.



     Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 7.08, a Trustee, so that there shall at all times be a Trustee hereunder with respect to
each series of Debt Securities.



     Section 4.04. Duties of Paying Agents, Etc.



     (a) The Company shall cause each paying agent, if any, other than the Trustee, to execute and
deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to
the provisions of this Section 4.04,




	 	(i)	 	that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series and the payment of any related Coupons (whether such
sums have been paid to it by the Company or by any other obligor on the Debt
Securities or Coupons of such series) in trust for the benefit of the Holders
of the Debt Securities and Coupons of such series;
	 
	 	(ii)	 	that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities or Coupons of such
series) to make any payment of the principal of, and premium, if any, or
interest on, the Debt Securities of such series or any payment on any related
Coupons when the same shall be due and payable; and
	 
	 	(iii)	 	that it will at any time during the continuance of an Event
of Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.




41









 











     (b) If the Company shall act as its own paying agent, with respect to any series of Debt
Securities, it will, on or before each due date of the principal of, and premium, if any, or
interest on, the Debt Securities and Coupons, if any, of any series, set aside, segregate and hold
in trust for the benefit of the Holders of the Debt Securities and Coupons of such series a sum in
the Currency or Currencies in which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Section 2.05 for the Debt Securities of such series) sufficient to
pay such principal, premium, if any, or interest so becoming due. The Company will promptly notify
the Trustee of any failure by the Company to take such action or the failure by any other obligor
on such Debt Securities or Coupons to make any payment of the principal of, and premium, if any, or
interest on, such Debt Securities or Coupons when the same shall be due and payable.



     (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or by Company Order direct any paying agent to pay, to the Trustee all sums held in
trust by the Company or any paying agent, as required by this Section 4.04, 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.



     (d) Whenever the Company shall have one or more paying agents with respect to any series of
Debt Securities and Coupons, it will, prior to each due date of the principal of, and premium, if
any, or interest on, any Debt Securities of such series, deposit with any such paying agent a sum
in the Currency or Currencies in which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Section 2.05 for the Debt Securities of such series) sufficient to
pay the principal, premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless any such paying agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.



     (e) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to the provisions of Section 11.05.



     Section 4.05. SEC Reports; Financial Statements.



     (a) The Company shall, so long as any of the Debt Securities are outstanding, file with the
Trustee, within 15 days after it files the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) that the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. If the Company is not subject to the
requirements of such Section 13 or 15(d), the Company shall file with the Trustee, within 15 days
after it would have been required to file the same with the SEC, financial statements, including
any notes thereto (and with respect to annual reports, an auditors’ report by a firm of established
national reputation), and a “Management’s Discussion and Analysis of Financial Condition and
Results of Operations,” both comparable to that which the Company would have been required to
include in such annual reports, information, documents or other reports if the Company had been
subject to the requirements of such Section 13 or 15(d). The Company shall also comply with the
provisions of TIA (S) 314(a).



     (b) The Company shall provide the Trustee with a sufficient number of copies of all reports
and other documents and information that the Trustee may be required to deliver to Holders under
this Section.



42









 





     Section 4.06. Compliance Certificate.



     (a) The Company shall, so long as any of the Debt Securities are outstanding, deliver to the
Trustee, within 120 days after the end of each fiscal year, an Officers’ Certificate stating that a
review of the activities of the Company during the preceding fiscal year has been made under the
supervision of the signing Officers of the Company with a view to determining whether the Company
have kept, observed, performed and fulfilled their obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of his knowledge the
Company has kept, observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions hereof, without regard to any grace period or requirement of notice required by this
Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults
or Events of Default of which such Officer may have knowledge and what action the Company, is
taking or proposes to take with respect thereto) and that to the best of his knowledge no event has
occurred and remains in existence by reason of which payments on account of the principal of, or
premium, if any, or interest, if any, on the Debt Securities are prohibited or, if such event has
occurred, a description of the event and what action the Company is taking or proposes to take with
respect thereto.



     (b) So long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.05
shall be accompanied by a written statement of the Company’s independent public accountants that in
making the examination necessary for certification of such financial statements nothing has come to
their attention that would lead them to believe that the Company has violated any provisions of
Articles IV or V of this Indenture (to the extent such provisions relate to accounting matters) or,
if any such violation has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.



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



     Section 4.07. Payment of Additional Interest. Unless otherwise provided pursuant to Section
2.05, the provisions of this Section 4.07 shall be applicable to Bearer Securities of any series.



     The Company agrees to pay, subject to the exceptions and limitations set forth below, as
additional interest to the Holder of any Bearer Security or Coupon that is a United States Alien
such amounts as may be necessary so that every net payment on such Bearer Security or Coupon, after
deduction or withholding for or on account of any present or future tax, assessment or other
governmental charge imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be less than the amount
provided in such Bearer Security or Coupon to be then due and payable. However, the Company will
not be required to make any such payment of additional interest for or on account of:



     (a) any tax, fee, assessment or other governmental charge that would not have been imposed but
for (i) the existence of any present or former connection between such Holder (or between a
fiduciary, settlor or beneficiary of, or a Person holding a power over, such Holder, if



43









 





such Holder is an estate or a trust, or a member or shareholder of such Holder, if such Holder
is a partnership or corporation) and the United States, including such Holder (or such fiduciary,
settlor, beneficiary, Person holding a power, member or shareholder) being or having been a citizen
or resident thereof or being or having been engaged in trade or business or present therein or
having or having had a permanent establishment therein or (ii) such Holder’s past or present status
for United States Federal income tax purposes as a personal holding company, foreign personal
holding company or private foundation or other tax-exempt organization with respect to the United
States or as a corporation that accumulates earnings to avoid United States Federal income tax;




     (b) any estate, inheritance, gift, sales, transfer or personal property tax or any similar
tax, assessment or other governmental charge;



     (c) any tax, fee, assessment or other governmental charge that would not have been imposed but
for the presentation by the Holder of a Bearer Security or Coupon for payment more than 15 days
after the date on which such payment became due and payable or on which payment thereof was duly
provided for, whichever occurs later;



     (d) any tax, fee, assessment or other governmental charge that is payable otherwise than by
deduction or withholding from a payment on a Bearer Security or Coupon;



     (e) any tax, fee, assessment or other governmental charge that would not have been imposed but
for a failure to comply with applicable certification, documentation, information or other
reporting requirement concerning the nationality, residence, identity or connection with the United
States of the Holder or beneficial owner of a Bearer Security or Coupon if, without regard to any
tax treaty, such compliance is required by statute or regulation of the United States as a
precondition to relief or exemption from such tax, assessment or other governmental charge; or



     (f) any tax, fee, assessment or other governmental charge imposed on a Holder that actually or
constructively owns ten percent or more of the combined voting power of all classes of stock of the
Company or that is a controlled foreign corporation related to the Company through stock ownership;
nor shall additional interest be paid with respect to a payment on a Bearer Security or Coupon to a
Holder that is a fiduciary or partnership or other than the sole beneficial owner of such payment
to the extent a beneficiary or settler with respect to such fiduciary or a member of such
partnership or a beneficial owner would not have been entitled to the additional interest had such
beneficiary, settlor, member or beneficial owner been the Holder of such Bearer Security or Coupon.



     Whenever in this Indenture there is mentioned, in any context, the payment of the principal
of, or premium, if any, or interest on, any Debt Security or payment with respect to any Coupon of
any series, such mention shall be deemed to include mention of the payment of additional interest
provided for in the terms of such Debt Securities and this Section 4.07 to the extent that, in such
context, additional interest is, was or would be payable in respect thereof pursuant to the
provisions of this Section 4.07 and express mention of the payment of additional interest (if
applicable) in any provisions hereof shall not be construed as excluding additional interest in
those provisions hereof where such express mention is not made.



     If the payment of additional interest becomes required in respect of the Debt Securities or
Coupons of a series, at least ten days prior to the first interest payment date with respect to
which such additional interest will be payable (or if the Debt Securities of that series will not
bear interest prior to its Stated Maturity, the first day on which a payment of principal, and
premium, if



44









 





any, is made and on which such additional interest will be payable), and at least ten days prior to
each date of payment of principal, and premium, if any, or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company
will furnish the Trustee and each paying agent with an Officers’ Certificate that shall specify by
country the amount, if any, required to be withheld on such payments to Holders of Debt Securities
or Coupons that are United States Aliens, and the Company will pay to the Trustee or such paying
agent the additional interest, if any, required by the terms of such Debt Securities and this
Section 4.07. The Company covenants to indemnify the Trustee and any paying agent for, and to hold
them harmless against, any and all loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with actions taken or omitted
by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 4.07.




     Section 4.08. Further Instruments and Acts. The Company will, upon request of the Trustee,
execute and deliver such further instruments and do such further acts as may reasonably be
necessary or proper to carry out more effectually the purposes of this Indenture.



     Section 4.09. Corporate Existence. The Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence and the corporate,
partnership and other existence of each of its Subsidiaries and all rights (charter and statutory)
and franchises of the Company and its Subsidiaries, provided that the Company shall not be required
to preserve the corporate existence of any Subsidiary of the Company or any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and the Restricted Subsidiaries and that the loss
thereof would not have a material adverse effect on the business, prospects, assets or financial
condition of the Company and its Subsidiaries taken as a whole and would not have any material
adverse effect on the payment and performance of the obligations of the Company under the Debt
Securities and this Indenture.



     Section 4.10. Maintenance of Properties. The Company shall cause all properties owned by the
Company or any of its Subsidiaries or used or held for use in the conduct of its business or the
business of any such 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 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 such Subsidiary and not disadvantageous in any material respect
to the Holders.



     Section 4.11. 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, (i) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Subsidiaries or upon the
income, profits or property of the Company or any of its Subsidiaries, and (ii) 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 of its Subsidiaries; provided 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.



45









 





ARTICLE V

HOLDERS’ LISTS AND REPORTS

BY THE TRUSTEE




     Section 5.01. Company to Furnish Trustee Information as to Names and Addresses of Holders;
Preservation of Information. The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee with respect to the Registered Securities of each series:



     (a) not more than 15 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
Registered Holders as of such record date, and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and contents as of a date not
more than 15 days prior to the time such list is furnished; provided, however, that so long as the
Trustee shall be the Registrar, such lists shall not be required to be furnished.



     The Company shall also be required to furnish to the Trustee at all such times set forth above
all information in the possession or control of the Company or any of its paying agents other than
the Trustee as to the names and addresses of the Bearer Holders of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to any Bearer Holders.



     The Trustee shall preserve, in as current a form as is reasonably practicable, all information
as to the names and addresses of the Holders (i) contained in the most recent list furnished to it
as provided in this Section 5.01 or (ii) received by it in the capacity of paying agent or
Registrar (if so acting) hereunder.



     The Trustee may destroy any list furnished to it as provided in this Section 5.01 upon receipt
of a new list so furnished.



     Section 5.02. Communications to Holders. Holders may communicate pursuant to Section 312(b)
of the TIA with other Holders with respect to their rights under this Indenture or the Debt
Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the TIA.



     Section 5.03. Reports by Trustee. Within 60 days after each January 31, beginning with the
first January 31, following the first issuance of Debt Securities pursuant to Section 2.05, and in
any event on or before April 1 in each year, the Trustee shall mail to Holders a brief report dated
as of such January 31 that complies with TIA Section 313(a); provided, however, that if no event
described in TIA Section 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted. The Trustee also shall comply with TIA Section 313(b).



     Reports pursuant to this Section 5.03 shall be transmitted by mail:



     (a) to all Registered Holders, as the names and addresses of such Holders appear in the Debt
Security Register;



46









 





     (b) to such Bearer Holders of any series as have, within two years preceding such
transmission, filed their names and addresses with the Trustee for such series for that purpose;
and



     (c) except in the cases of reports under Section 313(b)(2) of the TIA, to each Holder of a
Debt Security of any series whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 5.01.



     A copy of each report at the time of its mailing to Holders shall be filed with the Securities
and Exchange Commission and each stock exchange (if any) on which the Debt Securities of any series
are listed. The Company agrees to notify promptly the Trustee whenever the Debt Securities of any
series become listed on any stock exchange and of any delisting thereof.



     Section 5.04. Record Dates for Action by Holders. If the Company shall solicit from the
holders of Debt Securities of any series any action (including the making of any demand or request,
the giving of any direction, notice, consent or waiver or the taking of any other action), the
Company may, at its option, by resolution of the Board of Directors, fix in advance a record date
for the determination of Holders of Debt Securities entitled to take such action, but the Company
shall have no obligation to do so. Any such record date shall be fixed at the Company’s
discretion. If such a record date is fixed, such action may be sought or given before or after the
record date, but only the Holders of Debt Securities of record at the close of business on such
record date shall be deemed to be Holders of Debt Securities for the purpose of determining whether
Holders of the requisite proportion of Debt Securities of such series Outstanding have authorized
or agreed or consented to such action, and for that purpose the Debt Securities of such series
Outstanding shall be computed as of such record date.



ARTICLE VI

REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT




     Section 6.01. Events of Default. If any one or more of the following shall have occurred and
be continuing with respect to Debt Securities of any series (each of the following, an “Event of
Default”):



     (a) default in the payment of any installment of interest upon any Debt Securities of that
series or any payment with respect to the related Coupons, if any, as and when the same shall
become due and payable, whether or not such payment shall be prohibited by Article XIII, and
continuance of such default for a period of 30 days; or



     (b) default in the payment of the principal of or premium, if any, on any Debt Securities of
that series as and when the same shall become due and payable, whether at maturity, upon
redemption, by declaration, upon required repurchase or otherwise, whether or not such payment
shall be prohibited by Article XIII; or



     (c) if applicable, failure by the Company to deliver the required securities or other rights
upon an appropriate conversion or exchange election by Holders of the Debt Securities; or



     (d) default in the payment of any sinking fund payment with respect to any Debt Securities of
that series as and when the same shall become due and payable; or



47









 





     (e) failure on the part of the Company duly to observe or perform any other of the covenants
or agreements on the part of the Company in the Debt Securities of that series, in any resolution
of the Board of Directors authorizing the issuance of that series of Debt Securities, in this
Indenture with respect to such series or in any supplemental Indenture with respect to such series
(other than a covenant a default in the performance of which is elsewhere in this Section
specifically dealt with), continuing for a period of 90 days after the date on which written notice
specifying such failure and requiring the Company to remedy the same shall have 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 aggregate principal amount of the Debt Securities of that series at
the time Outstanding; or



     (f) any default shall occur which results in the acceleration of the maturity of any
Indebtedness of the Company or any Restricted Subsidiary (other than the series of Debt Securities)
having an outstanding principal amount of $10 million or more individually or, taken together with
all other such Indebtedness that has been so accelerated, in the aggregate; or any default shall
occur in the payment of any principal or interest in respect of any Indebtedness of the Company or
any Restricted Subsidiary (other than the series of Debt Securities) having an outstanding
principal amount of $10 million or more individually or, taken together with all other such
Indebtedness with respect to which any such payment has not been made in the aggregate and such
default shall be continuing for a period of 30 days without the Company or such Restricted
Subsidiary, as the case may be, effecting a cure of such default;



     (g) failure by the Company or any Restricted Subsidiary to pay final, non-appealable judgments
aggregating in excess of $20 million, which judgments are not paid, discharged or stayed for a
period of 60 days after the judgment becomes final and non-appealable;



     (h) the Company or any Restricted Subsidiary pursuant to or within the meaning of any
Bankruptcy Law,




	 	(i)	 	commences a voluntary case,
	 
	 	(ii)	 	consents to the entry of an order for relief against it in an involuntary
case,
	 
	 	(iii)	 	consents to the appointment of a Custodian of it or for all or substantially
all of its property; or
	 
	 	(iv)	 	makes a general assignment for the benefit of its creditors;








	 	(i)	 	a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
	 
	 	(i)	 	is for relief against the Company or any Restricted Subsidiary as debtor in
an involuntary case and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days,
	 
	 	(ii)	 	appoints a Custodian of the Company or any Restricted Subsidiary or a
Custodian for all or substantially all of the property of the Company or any
Restricted Subsidiary, or





48









 





	 	(iii)	 	orders the liquidation of the Company or any Restricted Subsidiary, and the
order or decree shall remain unstayed and in effect for a period of 60 consecutive
days; or





     (j) any other Event of Default provided with respect to Debt Securities of that series;



then and in each and every case that an Event of Default described in clause (a), (b), (c), (d),
(e), (f), (g) or (j) with respect to Debt Securities of that series at the time Outstanding occurs
and is continuing, unless the principal of and interest on all the Debt Securities of that series
shall have already become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by Holders), may declare the
principal of (or, if the Debt Securities of that series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the terms of that series)
and interest on all the Debt Securities of that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and payable, anything in
this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained
to the contrary notwithstanding. If an Event of Default described in clause (h) or (i) occurs, then
and in each and every such case, unless the principal of and interest on all the Debt Securities
shall have become due and payable, the principal of (or, if any Debt Securities are Original Issue
Discount Debt Securities, such portion of the principal amount as may be specified in the terms
thereto) and interest on all the Debt Securities then Outstanding hereunder shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holders, anything in this Indenture or in the Debt Securities contained to the contrary
notwithstanding.




     The Holders of a majority in aggregate principal amount of the Debt Securities of a particular
series by notice to the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree already rendered and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest that has become due
solely because of acceleration. Upon any such rescission, the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers
of the parties hereto shall continue as though no such proceeding had been taken.



     Section 6.02. Collection of Indebtedness by Trustee, Etc. If an Event of Default occurs and
is continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for the collection of the
sums so due and unpaid or enforce the performance of any provision of the Debt Securities of the
affected series or this Indenture, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the Company or any other
obligor upon the Debt Securities, and the Coupons, if any, appertaining thereto, of such series
(and collect in the manner provided by law out of the property of the Company or any other obligor
upon the Debt Securities and Coupons of such series wherever situated the monies adjudged or
decreed to be payable).



     In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor upon the Debt Securities and Coupons, if any, of any series under
Title 11 of the United States Code or any other Federal or State bankruptcy, insolvency or similar
law, or in case a receiver, trustee or other similar official shall have been appointed for its
property, or in case of any other similar judicial proceedings relative to the Company or any other
obligor upon the Debt Securities of any series, its creditors or its property, the Trustee,



49









 





irrespective of whether the principal of Debt Securities and Coupons, if any, of any series shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02,
shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal, premium, if any, and interest (or, if
the Debt Securities of such series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series) owing and unpaid in respect of
the Debt Securities and Coupons of such series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities Incurred, and all advances made, by the Trustee except as a result of
its negligence or bad faith) and of the Holders thereof allowed in any such judicial proceedings
relative to the Company, or any other obligor upon the Debt Securities and Coupons of such series,
its creditors or its property, and to collect and receive any monies or other property payable or
deliverable on any such claims, and to distribute all amounts received with respect to the claims
of such Holders and of the Trustee on their behalf, and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of such Holders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of payments directly to
such Holders, to pay to the Trustee such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses
and liabilities Incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.




     All rights of action and of asserting claims under this Indenture, or under any of the Debt
Securities and the Coupons, if any, appertaining thereto, of any series, may be enforced by the
Trustee without the possession of any such Debt Securities or Coupons, or the production thereof in
any trial or other proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment (except for any amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities or Coupons in respect of which such
action was taken.



     In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.



     Section 6.03. Application of Monies Collected by Trustee. Any monies or other property
collected by the Trustee pursuant to Section 6.02 with respect to Debt Securities and Coupons, if
any, of any series shall be applied, after giving effect to the provisions of Article XIII, in the
order following, at the date or dates fixed by the Trustee for the distribution of such monies or
other property, upon presentation of the several Debt Securities or Coupons of such series in
respect of which monies or other property have been collected, and the notation thereon of the
payment, if only partially paid, and upon surrender thereof if fully paid:



     FIRST: To the payment of all money due the Trustee pursuant to Section 7.06;




50











 





     SECOND: In case the principal of the Outstanding Debt Securities in respect of which such
monies have been collected shall not have become due, to the payment of interest on the Debt
Securities or Coupons of such series in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate or Yield to Maturity (in the case of Original
Issue Discount Debt Securities) borne by the Debt Securities or Coupons of such series, such
payments to be made ratably to the Persons entitled thereto, without discrimination or preference;



     THIRD: In case the principal of the Outstanding Debt Securities in respect of which such
monies have been collected shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Debt Securities or Coupons of such series for
principal and premium, if any, and interest, with interest on the overdue principal and premium, if
any, and (to the extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount
Debt Securities) borne by the Debt Securities or Coupons of such series; and, in case such monies
shall be insufficient to pay in full the whole amount so due and unpaid upon the Debt Securities
and Coupons of such series, then to the payment of such principal and premium, if any, and
interest, without preference or priority of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any installment of interest over any other
installment of interest, or of any Debt Security or Coupon of such series over any Debt Security or
Coupon of such series, ratably to the aggregate of such principal and premium, if any, and
interest; and



     FOURTH: The remainder, if any, shall be paid to the Company, its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction
may direct.



     The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.03. At least 15 days before such record date, the Company shall mail to each Holder and
the Trustee a notice that states the record date, the payment date and amount to be paid.



     Section 6.04. Limitation on Suits by Holders. No Holder of any Debt Security or Coupon of any
series shall have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or otherwise, upon or under
or with respect to this Indenture, the Debt Securities of any series or any Coupons appertaining
thereto, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of an Event of Default with
respect to Debt Securities of that same series and of the continuance thereof and unless the
Holders of not less than 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request upon the Trustee to institute such action or
proceedings in respect of such Event of Default in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and
liabilities to be Incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted
by the Holder of every Debt Security or Coupon with every other Holder and the Trustee, that no one
or more Holders shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any Holders, or to obtain
or seek to obtain priority over or preference to any other such Holder, or



51









 




to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all such Holders. For the protection and enforcement of the
provisions of this Section 6.04, each and every Holder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.




     Notwithstanding any other provision in this Indenture, however, the right of any Holder of any
Debt Security or Coupon to receive payment of the principal of, and premium, if any, and (subject
to Section 2.14) interest on, such Debt Security or Coupon, on or after the respective due dates
expressed in such Debt Security, and to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the consent of such
Holder.



     Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of
Default. All powers and remedies given by this Article VI to the Trustee or to the Holders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any
other powers and remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and agreements contained in
this Indenture, and no delay or omission of the Trustee or of any Holder to exercise any right or
power accruing upon any Default occurring and continuing as aforesaid, shall impair any such right
or power, or shall be construed to be a waiver of any such Default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy given by this Article VI or by
law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.



     Section 6.06. Rights of Holders of Majority in Principal Amount of Debt Securities to Direct
Trustee and to Waive Default. The Holders of a majority in aggregate principal amount of the Debt
Securities of any series at the time Outstanding 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 Debt Securities of such series;
provided, however, that such direction shall not be otherwise than in accordance with law and the
provisions of this Indenture, and that subject to the provisions of Section 7.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the Trustee shall by a
responsible officer or officers determine that the action so directed would involve it in personal
liability or would be unjustly prejudicial to Holders of Debt Securities of such series not taking
part in such direction; and provided, further, however, that nothing in this Indenture contained
shall impair the right of the Trustee to take any action deemed proper by the Trustee and which is
not inconsistent with such direction by such Holders. Prior to the acceleration of the maturity of
the Debt Securities of any series, as provided in Section 6.01, the Holders of a majority in
aggregate principal amount of the Debt Securities of that series at the time Outstanding may on
behalf of the Holders of all the Debt Securities and any related Coupons of that series waive any
past Default or Event of Default and its consequences for that series specified in the terms
thereof as contemplated by Section 2.05, except a Default in the payment of the principal of, and
premium, if any, or interest on, any of the Debt Securities or in the payment of any related Coupon
and a Default in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected thereby. In case of any such waiver, such Default shall cease to
exist, any Event of Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture, and the Company, the Trustee and the Holders of the Debt Securities of that
series shall be restored to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.



52









 





     Section 6.07. Trustee to Give Notice of Defaults Known to It, But May Withhold Such Notice in
Certain Circumstances. The Trustee shall, within 90 days after the occurrence of a Default known
to it with respect to a series of Debt Securities or Coupons, if any, give to the Holders thereof,
in the manner provided in Section 12.03, notice of all Defaults with respect to such series known
to the Trustee, unless such Defaults shall have been cured or waived before the giving of such
notice; provided, that, except in the case of Default in the payment of the principal of, or
premium, if any, or interest on, any of the Debt Securities or Coupons of such series or in the
making of any sinking fund payment with respect to the Debt Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of directors, the
executive committee or a committee of directors or responsible officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the Holders thereof.



     Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture
or against the Trustee. All parties to this Indenture agree, and each Holder of any Debt Security
or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit in the manner and to
the extent provided in the TIA, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 6.08 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate more than ten percent
in principal amount of the Outstanding Debt Securities of that series or to any suit instituted by
any Holder for the enforcement of the payment of the principal of, or premium, if any, or interest
on, any Debt Security or Coupon on or after the due date for such payment expressed in such Debt
Security or Coupon.



ARTICLE VII

CONCERNING THE TRUSTEE




     Section 7.01. Certain Duties and Responsibilities. The Trustee, prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.



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



     (a) this subsection shall not be construed to limit the effect of the first paragraph of this
Section 7.01;



     (b) prior to the occurrence of an Event of Default with respect to the Debt Securities of a
series and after the curing or waiving of all Events of Default with respect to such series which
may have occurred:



53









 





     (i) the duties and obligations of the Trustee with respect to Debt Securities and Coupons, if
any, of any series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and obligations with respect
to such series as are specifically set forth in this Indenture, and no implied covenants or
obligations with respect to such series shall be read into this Indenture against the Trustee; and



     (ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture; but the
Trustee shall examine the evidence furnished to it pursuant to Sections 4.05 and 4.06 to determine
whether or not such evidence conforms to the requirement of this Indenture;



     (iii) the Trustee shall not be liable for an error of judgment made in good faith by a
responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and



     (iv) the Trustee shall not be liable with respect to any action taken or omitted to be taken
by it with respect to Debt Securities of any series in good faith in accordance with the direction
of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to Debt Securities of such series.



     None of the provisions of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any Personal financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be 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 7.02. Certain Rights of Trustee. Except as otherwise provided in Section 7.01:



     (a) 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 or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or presented by the proper
party or parties;



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



54









 





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



     (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders of Debt Securities or
Coupons of any series pursuant to the provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;



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



     (f) prior to the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, 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, approval or other paper or document, unless requested
in writing to do so by the Holders of a majority in aggregate principal amount of the then
Outstanding Debt Securities of a series affected by such matter; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every such investigation shall be paid by
the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;



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



     (h) if any property other than cash shall at any time be subject to a Lien in favor of the
Holders, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of
competent jurisdiction or by the supplemental instrument subjecting such property to such lien,
shall be entitled to make advances for the purpose of preserving such property or of discharging
tax Liens or other prior Liens or encumbrances thereon.



     Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt Securities. The
recitals contained herein, in the Debt Securities (except the Trustee’s certificate of
authentication) and in any Coupons shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Debt Securities or Coupons, if any, of
any series, except that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Debt Securities and perform its obligations hereunder, and that
the statements made by it or to be made by it in a Statement of Eligibility and Qualification on
Form T-1 supplied to the Company are true and accurate. The Trustee shall not be accountable for
the use or application by the Company of any of the Debt Securities or of the proceeds thereof.



55









 





     Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities. The Trustee or any
paying agent or Registrar, in its individual or any other capacity, may become the owner or pledgee
of Debt Securities or Coupons and subject to the provisions of the TIA relating to conflicts of
interest and preferential claims may otherwise deal with the Company with the same rights it would
have if it were not Trustee, paying agent or Registrar.



     Section 7.05. Monies Received By Trustee to Be Held in Trust. Subject to the provisions of
Section 11.05, all monies received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any monies received by it hereunder. So long as no Event of Default shall have occurred
and be continuing, all interest allowed on any such monies shall be paid from time to time to the
Company upon a Company Order.



     Section 7.06. Compensation and Reimbursement. The Company covenants and agrees to pay in
Dollars to the Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its
request for all reasonable expenses, disbursements and advances Incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as may arise from its
negligence or bad faith. The Company also covenants to indemnify in Dollars the Trustee for, and
to hold it harmless against, any loss, liability or expense Incurred without negligence, willful
misconduct or bad faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust or trusts hereunder, including the reasonable costs and
expenses of defending itself against any claim of liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligations of the Company under this
Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. The Company and the Holders agree that
such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and
Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except
funds held in trust for the payment of principal of, and premium, if any, or interest on,
particular Debt Securities and Coupons.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(h) or (i) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any bankruptcy, insolvency, reorganization or other
similar law.



     Section 7.07. Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence
Specifically Prescribed. Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers’ Certificate, delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full



56









 




warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.




     Section 7.08. Separate Trustee; Replacement of Trustee. The Company may, but need not,
appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign
with respect to one or more or all series of Debt Securities at any time by giving notice to the
Company. The Holders of a majority in principal amount of the Debt Securities of a particular
series may remove the Trustee for such series and only such series by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:



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



     (b) the Trustee is adjudged bankrupt or insolvent;



     (c) a receiver or other public officer takes charge of the Trustee or its property; or



     (d) the Trustee otherwise becomes incapable of acting.



     If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Debt Securities of a particular series and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly
appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a
successor Trustee shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of this Section 7.08.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in
Section 7.06.



     If a successor Trustee does not take office within 60 days after the retiring Trustee gives
notice of resignation or is removed, the retiring Trustee or the Holders of 25% in principal amount
of the Debt Securities of any applicable series may petition any court of competent jurisdiction
for the appointment of a successor Trustee for the Debt Securities of such series.



     If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any
applicable series may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee for the Debt Securities of such series.



     Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.



     In the case of the appointment hereunder of a separate or successor trustee with respect to
the Debt Securities of one or more series, the Company, any retiring Trustee and each successor or
separate Trustee with respect to the Debt Securities of any applicable series shall execute and
deliver an Indenture supplemental hereto (i) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of any



57









 




retiring Trustee with respect to the Debt Securities of any series as to which any such retiring
Trustee is not retiring shall continue to be vested in such retiring Trustee and (ii) that 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 separate, retiring or successor 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.




     Section 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation or
banking association without any further act shall be the successor Trustee. In case at the time
such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to
the trusts created by this Indenture any of the Debt Securities shall have been authenticated but
not delivered, any such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Debt Securities so authenticated; and in case at that time
any of the Debt Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Debt Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Debt Securities or in this Indenture provided that the certificate of
the Trustee shall have.



     Section 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of Section 310(a) of the TIA. The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report of condition. No
obligor upon the Debt Securities or Coupons, if any, of a particular series or Person directly or
indirectly controlling, controlled by or under common control with such obligor shall serve as
Trustee upon the Debt Securities and Coupons of such series. The Trustee shall comply with Section
310(b) of the TIA; provided, however, that there shall be excluded from the operation of Section
310(b)(1) of the TIA this Indenture or any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the TIA are met.



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



     Section 7.12. Compliance with Tax Laws. The Trustee hereby agrees to comply with all U.S.
Federal income tax information reporting and withholding requirements applicable to it with respect
to payments of premium (if any) and interest on the Debt Securities, whether acting as Trustee,
Security Registrar, paying agent or otherwise with respect to the Debt Securities.



ARTICLE VIII

CONCERNING THE HOLDERS




     Section 8.01. Evidence of Action by Holders. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the Debt Securities of any
or all series may take action (including the making of any demand or request, the giving of



58









 




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 by any instrument or any number of instruments of similar tenor executed by Holders in
Person or by agent or proxy appointed in writing, by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in accordance with the provisions of Section
5.02 or by a combination of such instrument or instruments and any such record of such a meeting of
Holders.




     Section 8.02. Proof of Execution of Instruments and of Holding of Debt Securities. Subject to
the provisions of Sections 7.01, 7.02 and 12.11, proof of the execution of any instrument by a
Holder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.



     The ownership of Registered Securities of any series shall be proved by the Debt Security
Register or by a certificate of the Registrar for such series.



     The ownership of Bearer Securities shall be proved by production of such Bearer Securities or
by a certificate executed by any bank or trust company, which certificate shall be dated and shall
state on the date thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the Person executing such certificate by the Person named in
such certificate, or by any other proof of possession reasonably satisfactory to the Trustee. The
holding by the Person named in any such certificate of any Bearer Security specified therein shall
be presumed to continue for a period of one year unless at the time of determination of such
holding (a) another certificate bearing a later date issued in respect of the same Bearer Security
shall be produced, (b) such Bearer Security shall be produced by some other Person, (c) such Bearer
Security shall have been registered on the Debt Security Register, if, pursuant to Section 2.05,
such Bearer Security can be so registered, or (d) such Bearer Security shall have been canceled or
paid.



     The Trustee may require such additional proof of any matter referred to in this Section 8.02
as it shall deem necessary.



     Section 8.03. Who May Be Deemed Owner of Debt Securities. Prior to due presentment for
registration of transfer of any Registered Security, the Company, the Trustee, any paying agent and
any Registrar may deem and treat the Person in whose name any Registered Security shall be
registered upon the books of the Company as the absolute owner of such Registered Security (whether
or not such Registered Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of the principal of
and premium, if any, and (subject to Section 2.03) interest on such Registered Security and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Registrar shall be affected by any notice to the contrary;
and all such payments so made to any such Holder for the time being, or upon his order, shall be
valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Registered Security.



     The Company, the Trustee and any paying agent may deem and treat the Holder of any Bearer
Security or Coupon as the absolute owner of such Bearer Security or Coupon (whether or not such
Debt Security shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal of and premium, if
any, and (subject to Section 2.05) interest on such Bearer Security or Coupon and for



59









 




all other purposes, and none of the Company, nor the Trustee nor any paying agent shall be affected
by any notice to the contrary; and all such payments so made to any such Holder for the time being,
or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for monies payable upon any such Bearer Security or Coupon.




     None of the Company, the Trustee, any paying agent or the Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.



     Section 8.04. Instruments Executed by Holders Bind Future Holders. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action
by the Holders of the percentage in aggregate principal amount of the Debt Securities of any series
specified in this Indenture in connection with such action and subject to the following paragraph,
any Holder of a Debt Security which is shown by the evidence to be included in the Debt Securities
the Holders of which have consented to such action may, by filing written notice with the Trustee
at its corporate trust office and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Debt Security. Except as aforesaid any such action taken by the
Holder of any Debt Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Debt Security and all past, present and future Holders of Coupons, if
any, appertaining thereto, and of any Debt Security issued upon transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard thereto is made upon
such Debt Security or such other Debt Securities or Coupons. Any action taken by the Holders of
the percentage in aggregate principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all the Debt Securities and Coupons of such series.



     The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders of Registered Securities entitled to give their consent or take any other
action required or permitted to be taken pursuant to this Indenture. If a record date is fixed,
then notwithstanding the immediately preceding paragraph, those Persons who were Holders of
Registered Securities at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders of Registered Securities
after such record date. No such consent shall be valid or effective for more than 120 days after
such record date unless the consent of the Holders of the percentage in aggregate principal amount
of the Debt Securities of such series specified in this Indenture shall have been received within
such 120-day period.



ARTICLE IX

SUPPLEMENTAL INDENTURES




     Section 9.01. Purposes for Which Supplemental Indenture May Be entered into without Consent of
Holders. The Company (when authorized by or pursuant to a Board Resolution ), and the Trustee may
from time to time and at any time, without the consent of Holders, enter into an Indenture or
Indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the
date of the execution thereof) for one or more of the following purposes:



60









 





     (a) to evidence the succession pursuant to Article X of another Person to the Company or
successive successions, and the assumption by the Successor Company (as defined in Section 10.01)
of the covenants, agreements and obligations of the Company in this Indenture and in the Debt
Securities;



     (b) to surrender any right or power herein conferred upon the Company, to add to the covenants
of the Company such further covenants, restrictions, conditions or provisions for the protection of
the Holders of all or any series of Debt Securities and the Coupons, if any, appertaining thereto
(and if such covenants are to be for the benefit of less than all series of Debt Securities,
stating that such covenants are expressly being included solely for the benefit of such series) as
the Board of Directors of the Company, shall consider to be for the protection of the Holders of
such Debt Securities, and to make the occurrence, or the occurrence and continuance, of a Default
in any of such additional covenants, restrictions, conditions or provisions a Default or an Event
of Default permitting the enforcement of all or any of the several remedies provided in this
Indenture; provided, that in respect of any such additional covenant, restriction, condition or
provision such supplemental Indenture may provide for a particular period of grace after Default
(which period may be shorter or longer than that allowed in the case of other Defaults) or may
provide for an immediate enforcement upon such Default or may limit the remedies available to the
Trustee upon such Default or may limit the right of the Holders of a majority in aggregate
principal amount of any or all series of Debt Securities to waive such default;



     (c) to cure any ambiguity or omission or to correct or supplement any provision contained
herein, in any supplemental Indenture or in any Debt Securities of any series that may be defective
or inconsistent with any other provision contained herein, in any supplemental Indenture or in the
Debt Securities of such series; to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee, or to make such other provisions in regard to matters or questions arising under
this Indenture as shall not adversely affect the interests of any Holders of Debt Securities of any
series;



     (d) to modify or amend this Indenture in such a manner as to permit the qualification of this
Indenture or any Indenture supplemental hereto under the TIA as then in effect, except that nothing
herein contained shall permit or authorize the inclusion in any Indenture supplemental hereto of
the provisions referred to in Section 316(a)(2) of the TIA;



     (e) to add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registerable as to principal, to change or eliminate any restrictions on the
payment of principal of, or premium, if any, on, Registered Securities or of principal of, or
premium, if any, or interest on, Bearer Securities or to permit Registered Securities to be
exchanged for Bearer Securities or permit or facilitate the issuance of Debt Securities of any
series in uncertificated form; provided, that any such action shall not adversely affect the
interests of the Holders of Debt Securities or any Coupons of any series in any material respect;



     (f) to comply with Article X;



     (g) to make any change in Article XIII that would limit or terminate the benefits available to
any holder of Senior Indebtedness (or Representatives therefor) under Article XIII;



     (h) to make provisions with respect to conversion or exchange rights of Holders of Debt
Securities of any series;



     (i) to make any change that does not adversely affect the rights of any Holder;



61









 





     (j) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Debt Securities; provided, however, that any such addition, change or elimination
not otherwise permitted under this Section 9.01 shall neither apply to any Debt Security of any
series created prior to the execution of such supplemental Indenture and entitled to the benefit of
such provision nor modify the rights of the Holder of any such Debt Security with respect to such
provision or shall become effective only when there is no such Debt Security Outstanding;



     (k) to evidence and provide for the acceptance of appointment hereunder by a successor or
separate Trustee with respect to the Debt 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;



     (l) to establish the form or terms of Debt Securities and Coupons, if any, of any series as
permitted by Sections 2.01 and 2.05; and



     (m) to provide for uncertificated Debt Securities in addition to or in place of certificated
Debt Securities (provided that the uncertificated Debt Securities are issued in registered form for
purposes of Section 163(f) of the Internal Revenue Code of 1986, as amended, or in a manner such
that the uncertificated Debt Securities are described in Section 163(f)(2)(B) of the Internal
Revenue Code of 1986, as amended).



     The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental Indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee 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.



     Any supplemental Indenture authorized by the provisions of this Section 9.01 may be executed
by the Company and the Trustee without the consent of the Holders of any of the Debt Securities or
Coupons, if any, appertaining thereto at the time Outstanding, notwithstanding any of the
provisions of Section 9.02.



     An amendment under this Section 9.01 may not make any change that adversely affects the rights
under Article XIII of any holder of Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or any group or Representative thereof authorized to give a consent) consent
to such change.



     After an amendment under this Section 9.01 becomes effective, the Company shall mail to
Holders of Debt Securities of each series affected thereby a notice briefly describing such
amendment. The failure to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.



     Section 9.02. Modification of Indenture with Consent of Holders of Debt Securities. Without
notice to any Holder but with the consent (evidenced as provided in Section 8.01) of the Holders of
not less than a majority in aggregate principal amount of the Outstanding Debt Securities of each
series affected by such supplemental Indenture, the Company (when authorized by or pursuant to a
Board Resolution), and the Trustee may from time to time and at any time enter into an Indenture
or Indentures supplemental hereto (which shall conform to the provisions



62









 




of the TIA as in force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of any
supplemental Indenture or of modifying in any manner the rights of the Holders of the Debt
Securities of such series; provided, that no such supplemental Indenture, without the consent of
the Holders of each Debt Security so affected, shall reduce the percentage in principal amount of
Debt Securities of any series whose Holders must consent to an amendment; reduce the rate of or
extend the time for payment of interest on any Debt Security or Coupon or reduce the amount of any
payment to be made with respect to any Coupon; reduce the principal of or extend the Stated
Maturity of any Debt Security; reduce the premium payable upon the redemption of any Debt Security
or change the time at which any Debt Security may or shall be redeemed in accordance with Article
III; change the duration of the maximum consecutive period, if any, that payments of interest on
such Debt Securities may be deferred, if applicable; make any Debt Security or Coupon payable in
Currency other than that stated in the Debt Security; make any change in Article XIII that
adversely affects the rights of any Holder under Article XIII; release any security that may have
been granted in respect of the Debt Securities; make any change in Section 6.06 or this Section
9.02; change any obligation of the Company to pay additional interest pursuant to Section 4.07;
make any change that adversely affects the right to convert or exchange any Debt Security into or
for Common Stock or other securities, cash or property in accordance with its terms; or limit the
obligation of the Company to maintain a paying agency outside the United States for payment on
Bearer Securities as provided in Section 4.02 or limit the obligation of the Company to redeem a
Bearer Security as provided in Section 3.02(b).




     A supplemental Indenture which changes or eliminates any covenant or other provision of this
Indenture which has been expressly included solely for the benefit of one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the Holders of Debt
Securities and Coupons 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 Debt Securities and Coupons,
if any, of any other series.



     Upon the request of the Company, accompanied by a copy of a resolution of the Board of
Directors of the Company authorizing the execution of any such supplemental Indenture, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental Indenture unless such supplemental Indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into such supplemental
Indenture.



     It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed supplemental Indenture, but it shall be sufficient if such
consent shall approve the substance thereof.



     An amendment under this Section 9.02 may not make any change that adversely affects the rights
under Article XIII of any holder of Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or any group or Representative thereof authorized to give a consent) consent
to such change.



     After an amendment under this Section 9.02 becomes effective, the Company shall mail to
Holders of Debt Securities of each series affected thereby a notice briefly describing such
amendment. The failure to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.



63









 





     Section 9.03. Effect of Supplemental Indentures. Upon the execution of any supplemental
Indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such supplemental Indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.



     The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such supplemental Indenture
complies with the provisions of this Article IX.



     Section 9.04. Debt Securities May Bear Notation of Changes By Supplemental Indentures. Debt
Securities and Coupons, if any, of any series authenticated and delivered after the execution of
any supplemental Indenture pursuant to the provisions of this Article IX 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. New Debt Securities and Coupons of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental Indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Debt Securities and Coupons of such
series then Outstanding. Failure to make the appropriate notation or to issue a new Debt Security
or Coupon of such series shall not affect the validity of such amendment.



ARTICLE X

CONSOLIDATION, MERGER, SALE OR CONVEYANCE




     Section 10.01. Consolidations and Mergers of the Company. The Company shall not
consolidate with or merge with or into any Person, or convey, transfer or lease all or
substantially all its assets, unless: (a) either (i) the Company shall be the continuing Person in
the case of a merger or (ii) the resulting, surviving or transferee Person if other than the
Company (the “Successor Company”) shall be a corporation organized and existing under the laws of
the United States, any State thereof or the District of Columbia and the Successor Company shall
expressly assume, by an Indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under the Debt Securities and
Coupons, if any, according to their tenor, and this Indenture; (b) immediately after giving effect
to such transaction (and treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary of the Company as a result of such transaction as having been incurred by
the Successor Company or such Subsidiary at the time of such transaction), no Default or Event of
Default would occur or be continuing; (c) the Successor Company waives any right to redeem any
Bearer Security under circumstances in which the Successor Company would be entitled to redeem such
Bearer Security but the Company would not have been so entitled to redeem if the consolidation,
merger, conveyance, transfer or lease had not occurred; and (d) the Company shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental Indenture (if any) complies with this Indenture.



     Section 10.02. Rights and Duties of Successor Company. In case of any consolidation or
merger, or conveyance or transfer of the assets of the Company as an entirety or substantially as
an entirety in accordance with Section 10.01 the successor company shall succeed



64









 




to and be substituted for the Company, with the same effect as if it had been named herein as the
party of the first part, and the predecessor corporation shall be relieved of any further
obligation under the Indenture and the Debt Securities. The successor company thereupon may cause
to be signed, and may issue either in its own name or in the name of the Company, any or all the
Debt Securities issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of the successor company, instead of the Company, and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Debt Securities and Coupons, if any, appertaining thereto,
which previously shall have been signed and delivered by the officers of the Company to the Trustee
for authentication, and any Debt Securities and Coupons, if any, appertaining thereto, which the
successor company thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Debt Securities and Coupons, if any, appertaining thereto so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Debt Securities and
Coupons, if any, appertaining thereto theretofore or thereafter issued in accordance with the terms
of this Indenture as though all such Debt Securities and Coupons had been issued at the date of the
execution hereof.




     In case of any such consolidation, merger, sale or conveyance such changes in phraseology and
form (but not in substance) may be made in the Debt Securities and Coupons, if any, appertaining
thereto thereafter to be issued as may be appropriate.



ARTICLE XI

SATISFACTION AND DISCHARGE OF

INDENTURE; DEFEASANCE; UNCLAIMED MONIES




     Section 11.01. Applicability of Article. If, pursuant to Section 2.05, provision is made
for the defeasance of Debt Securities of a series and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as provided pursuant to
Section 2.05), then the provisions of this Article XI relating to defeasance of Debt Securities
shall be applicable except as otherwise specified pursuant to Section 2.05 for Debt Securities of
such series. Defeasance provisions, if any, for Debt Securities denominated in a Foreign Currency
or for Bearer Securities may be specified pursuant to Section 2.05.



     Section 11.02. Satisfaction and Discharge of Indenture; Defeasance.



     (a) If at any time the Company shall have delivered to the Trustee for cancellation all Debt
Securities of any series theretofore authenticated and delivered (other than Coupons appertaining
to Bearer Securities of such series called for redemption and maturing after the relevant
redemption date, surrender of which has been waived, any Debt Securities and Coupons of such
series which shall have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.11 and Debt Securities and Coupons for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as provided in Section
11.05) or all Debt Securities and the Coupons, if any, of such series not theretofore delivered to
the Trustee for cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
with the Trustee as trust funds the entire amount in the Currency in which such Debt Securities are
denominated (except as otherwise provided pursuant to Section 2.05) sufficient to pay at maturity
or upon redemption all Debt Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to become due on such
date of maturity or redemption date, as the case may be, and if in either



65









 




case the Company shall also pay or cause to be paid all other sums payable hereunder by the
Company, then this Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of such Debt Securities herein expressly provided for and
rights to receive payments of principal of, and premium, if any, and interest on, such Debt
Securities and any right to receive additional interest as provided in Section 4.07) with respect
to the Debt Securities of such series, and the Trustee, on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture.




     (b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any time may terminate, with
respect to Debt Securities of a particular series, all its obligations under the Debt Securities of
such series and this Indenture with respect to the Debt Securities of such series (“legal
defeasance option”) or the operation of Sections 6.01(e), (f), (g) and (j) (“covenant defeasance
option”). The Company may exercise its legal defeasance option notwithstanding its prior exercise
of its covenant defeasance option.



     If the Company exercises its legal defeasance option, payment of the Debt Securities of the
defeased series may not be accelerated because of an Event of Default. If the Company exercises
its covenant defeasance option, payment of the Debt Securities of the defeased series may not be
accelerated because of an Event of Default specified in Sections 6.01(e), (f), (g) and (j) (except
to the extent covenants or agreements referenced in such Sections remain applicable).



     Upon satisfaction of the conditions set forth herein and upon request of the Company, the
Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.



     (c) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.09,
2.11, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06 and 11.07 shall survive until the Debt Securities
of the defeased series have been paid in full. Thereafter, the Company’s obligations in Sections
7.06, 11.05 and 11.06 shall survive.



     Section 11.03. Conditions of Defeasance. The Company may exercise its legal defeasance
option or its covenant defeasance option with respect to Debt Securities of a particular series
only if:



     (a) the Company irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations for the payment of principal of, and premium, if any, and interest on, the Debt
Securities of such series to maturity or redemption, as the case may be;



     (b) the Company delivers to the Trustee a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the payments of principal and interest when
due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money
without investment will provide cash at such times and in such amounts as will be sufficient to pay
the principal, premium and interest when due on all the Debt Securities of such series to maturity
or redemption, as the case may be;



     (c) 123 days pass after the deposit is made and during the 123-day period no Default specified
in Section 6.01(h) or (i) with respect to the Company occurs which is continuing at the end of the
period;



66









 





     (d) no Default has occurred and is continuing on the date of such deposit and after giving
effect thereto;



     (e) the deposit does not constitute a default under any other agreement binding on the Company
and, is not prohibited by Article XIII;



     (f) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;



     (g) in the event of the legal defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that the Company has received from the Internal Revenue
Service a ruling, or since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case of the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;



     (h) in the event of the covenant defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of Debt Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not occurred; and



     (i) the Company deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance and discharge of the Debt Securities
of such series as contemplated by this Article XI have been complied with.



     Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for
the redemption of Debt Securities of such series at a future date in accordance with Article III.



     Section 11.04. Application of Trust Money. The Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to this Article XI. It shall apply the deposited
money and the money from U.S. Government Obligations through any paying agent and in accordance
with this Indenture to the payment of principal of, and premium, if any, and interest on, the Debt
Securities and Coupons, if any, of the defeased series. Money and securities so held in trust are
not subject to Article XIII.



     Section 11.05. Repayment to Company. The Trustee and any paying agent shall promptly turn
over to the Company, upon request any excess money or securities held by them at any time. Subject
to any applicable abandoned property law, the Trustee and any paying agent shall pay to the
Company, upon request any money held by them for the payment of principal, premium or interest that
remains unclaimed for two years, and, thereafter, Holders entitled to such money must look to the
Company, for payment as general creditors.



     Section 11.06. Indemnity for U.S. Government Obligations. The Company shall pay and shall
indemnify the Trustee and the Holders against any tax, fee or other charge imposed



67









 




on or assessed against deposited U.S. Government Obligations or the principal and interest received
on such U.S. Government Obligations.




     Section 11.07. Reinstatement. If the Trustee or any paying agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article XI by reason of any legal
proceeding or by reason of any order or judgment of any court or government authority enjoining,
restraining or otherwise prohibiting such application, the Company’s obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and reinstated as though
no deposit had occurred pursuant to this Article XI until such time as the Trustee or any paying
agent is permitted to apply all such money or U.S. Government Obligations in accordance with this
Article XI, provided however, that if the Company makes any payment of principal of, any premium or
Interest on or with respect to any such Debt Security following reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such Debt Securities to
receive such payment from the money so held in trust.



ARTICLE XII

MISCELLANEOUS PROVISIONS




     Section 12.01. Successors and Assigns of Company Bound by Indenture. All the covenants,
stipulations, promises and agreements in this Indenture contained by or in behalf of the Company or
the Trustee shall bind its respective successors and assigns, whether so expressed or not.



     Section 12.02. Acts of Board, Committee or Officer of Successor Company Valid. Any act or
proceeding by any provision of this Indenture authorized or required to be done or performed by any
board, committee or officer of the Company, shall and may be done and performed with like force and
effect by the like board, committee or officer of any Successor Company.



     Section 12.03. Required Notices or Demands. Any notice or communication by the Company or
the Trustee to the others is duly given if in writing and delivered in Person or mailed by
registered or certified mail (return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the other’s address:



     If to the Company:


American Oil & Gas Inc.

1050 17th Street, Suite 2400

Denver, Colorado 80265

Attention: President




     If to the Trustee:


[                                      ]

Corporate Trust Office

[                    ]

[                    ]

Attention: Corporate Trust Administration




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



68









 





     All notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; on the first Business Day on or after being
sent, if telecopied and the sender receives confirmation of successful transmission; and the next
Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.



     Any notice required or permitted to a Registered Holder pursuant to the provisions of this
Indenture shall be deemed to be properly mailed by being deposited postage prepaid in a post office
letter box in the United States addressed to such Holder at the address of such Holder as shown on
the Debt Security Register. Any report pursuant to Section 313 of the TIA shall be transmitted in
compliance with subsection (c) therein.



     Any notice required or permitted to a Bearer Holder pursuant to this Indenture shall be deemed
to be properly given if published on two separate business days in an Authorized Newspaper or
Newspapers in such Place or Places of Payment specified pursuant to Section 2.05, the first such
publication to be not earlier than the earliest date and not later than two business days prior to
the latest date prescribed for the giving of such notice. Notwithstanding the foregoing, any notice
to Holders of Floating Rate Debt Securities regarding the determination of a periodic rate of
interest, if such notice is required pursuant to Section 2.05, shall be sufficiently given if given
in the manner specified pursuant to Section 2.05.



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



     In the event of suspension of publication of any Authorized Newspaper or by reason of any
other cause it shall be impracticable to give notice by publication, then such notification as
shall be given with the approval of the Trustee shall constitute sufficient notice for every
purpose hereunder.



     Failure to mail a notice or communication to a Holder or any defect in it or any defect in any
notice by publication as to a Holder shall not affect the sufficiency of such notice with respect
to other Holders. If a notice or communication is mailed or published in the manner provided
above, it is conclusively presumed duly given.



     Section 12.04. Indenture and Debt Securities to be Construed in accordance with the Laws
of the State of New York. This Indenture, each Debt Security and each Coupon shall be deemed to be
New York contracts, and for all purposes shall be construed in accordance with the laws of said
State (without reference to principles of conflicts of law).



     Section 12.05. Officers’ Certificate and Opinion of Counsel to be Furnished Upon
Application or Demand by the Company. Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture or the Company shall furnish to
the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.



69









 





     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (a)
a statement that the Person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c) a statement that, in
the opinion of such Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.



     Section 12.06. Payments Due on Legal Holidays. In any case where the date of maturity of
interest on or principal of and premium, if any, on the Debt Securities of a series or the date
fixed for redemption or repayment of any Debt Security or the making of any sinking fund payment
shall not be a business day at any Place of Payment for the Debt Securities of such series, then
payment of interest or principal and premium, if any, or the making of such sinking fund payment
need not be made on such date at such Place of Payment, 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 date of
maturity or the date fixed for redemption, and no interest shall accrue for the period after such
date. If a record date is not a business day, the record date shall not be affected.



     Section 12.07. Provisions Required by TIA to Control. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with another provision included in this
Indenture which is required to be included in this Indenture by any of Sections 310 to 318,
inclusive, of the TIA, such required provision shall control.



     Section 12.08. Computation of Interest on Debt Securities. Interest, if any, on the Debt
Securities shall be computed on the basis of a 360-day year of twelve 30-day months, except as may
otherwise be provided pursuant to Section 2.05.



     Section 12.09. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of Holders. The Registrar and any paying agent may
make reasonable rules for their functions.



     Section 12.10. No Recourse against Others. An incorporator or any past, present or future
director, officer, employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Debt Securities, the Coupons or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their creation. By accepting
a Debt Security or Coupon, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Debt Securities and Coupons.



     Section 12.11. Severability. In case any provision in this Indenture, the Debt Securities
or the Coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.



     Section 12.12. Effect of Headings. The article and section headings herein and in the
Table of Contents are for convenience only and shall not affect the construction hereof.



70









 





     Section 12.13. Indenture may be Executed in Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.



ARTICLE XIII

SUBORDINATION OF DEBT SECURITIES




     Section 13.01. Agreement to Subordinate.



     Each Holder by accepting a Debt Security agrees that the Indebtedness evidenced by such Debt
Security is subordinated in right of payment, to the extent and in the manner provided in this
Article XIII, to the prior payment of all Senior Indebtedness and that the subordination is for the
benefit of and enforceable by the holders of Senior Indebtedness. All provisions of this Article
XIII shall be subject to Section 13.12.



     Section 13.02. Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution of
the assets of the Company to creditors upon a total or partial liquidation or a total or partial
dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:



     (a) holders of Senior Indebtedness shall be entitled to receive payment in full in cash of the
Senior Indebtedness (including interest (if any), accruing on or after the commencement of a
proceeding in bankruptcy, whether or not allowed as a claim against the Company in such bankruptcy
proceeding) before Holders of Debt Securities shall be entitled to receive any payment of principal
of, or premium, if any, or interest on, the Debt Securities; and



     (b) until the Senior Indebtedness is paid in full, any distribution to which Holders of Debt
Securities would be entitled but for this Article XIII shall be made to holders of Senior
Indebtedness as their interests may appear, except that such Holders may receive shares of stock
and any debt securities that are subordinated to Senior Indebtedness to at least the same extent as
the Debt Securities.



     Section 13.03. Default on Senior Indebtedness. The Company may not pay the principal of,
or premium, if any, or interest on, the Debt Securities or make any deposit pursuant to Article XI
and may not repurchase, redeem or otherwise retire (except, in the case of Debt Securities that
provide for a mandatory sinking fund pursuant to Section 3.06, by the delivery of Debt Securities
by the Company to the Trustee pursuant to the first paragraph of Section 3.07) any Debt Securities
(collectively, “pay the Debt Securities”) if any principal, premium or interest in respect of
Senior Indebtedness is not paid within any applicable grace period (including at maturity) or any
other default on Senior Indebtedness occurs and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, the default has been cured or
waived and any such acceleration has been rescinded or such Senior Indebtedness has been paid in
full in cash; provided, however, that the Company may pay the Debt Securities without regard to the
foregoing if the Company and the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the continuance of any
default (other than a default described in clause (a) or (b) of the preceding sentence) with
respect to any Senior Indebtedness pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may not pay the Debt
Securities for a period (a “Payment Blockage Period”) commencing upon the receipt by the Company
and the Trustee of written notice of such default from the Representative of any



71









 




Designated Senior Indebtedness specifying an election to effect a Payment Blockage Period (a
“Blockage Notice”) and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated by written notice to the Trustee and the Company from the Person or Persons who gave
such Blockage Notice, by repayment in full in cash of such Designated Senior Indebtedness or
because the default giving rise to such Blockage Notice is no longer continuing). Notwithstanding
the provisions described in the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section 13.03), unless the holders of such Designated
Senior Indebtedness or the Representative of such holders shall have accelerated the maturity of
such Designated Senior Indebtedness, the Company may resume payments on the Debt Securities after
such Payment Blockage Period. Not more than one Blockage Notice may be given in any consecutive
360-day period, irrespective of the number of defaults with respect to any number of issues of
Senior Indebtedness during such period; provided, however, that if any Blockage Notice within such
360-day period is given by or on behalf of any holders of Designated Senior Indebtedness (other
than the Bank Indebtedness), the Representative of the Bank Indebtedness may give another Blockage
Notice within such period; provided, further, however, that in no event may the total number of
days during which any Payment Blockage Period or Periods is in effect exceed 179 days in the
aggregate during any 360 consecutive day period. For purposes of this Section 13.03, no default or
event of default which existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Senior Indebtedness initiating such Payment Blockage Period
shall be, or be made, the basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such default or event of default shall have been cured or waived for a period of not less
than 90 consecutive days.




     Section 13.04. Acceleration of Payment of Debt Securities. If payment of the Debt
Securities is accelerated because of an Event of Default, the Company or the Trustee shall promptly
notify the holders of the Designated Senior Indebtedness (or their Representatives) of the
acceleration.



     Section 13.05. When Distribution Must Be Paid Over. If a distribution is made to Holders
of Debt Securities that because of this Article XIII should not have been made to them, the Holders
who receive such distribution shall hold it in trust for holders of Senior Indebtedness and pay it
over to them as their interests may appear.



     Section 13.06. Subrogation. After all Senior Indebtedness is paid in full and until the
Debt Securities are paid in full, Holders thereof shall be subrogated to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior Indebtedness. A distribution
made under this Article XIII to holders of Senior Indebtedness which otherwise would have been made
to Holders of Debt Securities is not, as between the Company and such Holders, a payment by the
Company on Senior Indebtedness.



     Section 13.07. Relative Rights. This Article XIII defines the relative rights of Holders
of Debt Securities and holders of Senior Indebtedness. Nothing in this Indenture shall:



     (a) impair, as between the Company and Holders of Debt Securities, the obligation of the
Company, which is absolute and unconditional, to pay principal of, and premium, if any, and
interest on, the Debt Securities in accordance with their terms; or



72









 





     (b) prevent the Trustee or any Holder of Debt Securities from exercising its respective
available remedies upon a Default, subject to the rights of holders of Senior Indebtedness to
receive distributions otherwise payable to Holders of Debt Securities.



     Section 13.08. Subordination May Not Be Impaired by Company. No right of any holder of
Senior Indebtedness to enforce the subordination of the Indebtedness evidenced by the Debt
Securities shall be impaired by any act or failure to act by the Company or by its failure to
comply with this Indenture.



     Section 13.09. Rights of Trustee and Paying Agent. Notwithstanding Section 13.03, the
Trustee or any paying agent may continue to make payments on Debt Securities and shall not be
charged with knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two business days prior to the date of such payment, a responsible
officer of the Trustee receives notice satisfactory to it that payments may not be made under this
Article XIV. The Company, the Registrar, any paying agent, a Representative or a holder of Senior
Indebtedness may give the notice; provided, however, that, if an issue of Senior Indebtedness has a
Representative, only the Representative may give the notice on behalf of the Holders of the Senior
Indebtedness of that issue.



     The Trustee in its individual or any other capacity may hold Senior Indebtedness with the same
rights it would have if it were not Trustee. The Registrar and any paying agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in this Article XIII
with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness; and nothing in Article VII shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article XIII shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.



     Section 13.10. Distribution or Notice to Representative. Whenever a distribution is to be
made or a notice given to holders of Senior Indebtedness, the distribution may be made and the
notice given to their Representative (if any).



     Section 13.11. Article XIII Not to Prevent Defaults or Limit Right to Accelerate. The
failure to make a payment pursuant to the Debt Securities by reason of any provision in this
Article XIII shall not be construed as preventing the occurrence of a Default. Nothing in this
Article XIII shall have any effect on the right of the Holders or the Trustee to accelerate the
maturity of either the Debt Securities.



     Section 13.12. Trust Monies Not Subordinated. Notwithstanding anything contained herein
to the contrary, payments from money or the proceeds of U.S. Government Obligations held in trust
under Article XI by the Trustee for the payment of principal of, and premium, if any, and interest
on, the Debt Securities shall not be subordinated to the prior payment of any Senior Indebtedness
or subject to the restrictions set forth in this Article XIII, and none of the Holders thereof
shall be obligated to pay over any such amount to the Company or any holder of Senior Indebtedness
of the Company or any other creditor of the Company.



     Section 13.13. Trustee Entitled to Rely. Upon any payment or distribution pursuant to
this Article XIII, the Trustee and the Holders shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature referred to in Section
13.02 are pending, upon a certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to such Holders or upon the Representatives for the
holders of Senior Indebtedness for the purpose of ascertaining the Persons entitled to



73









 




participate in such payment or distribution, the holders of the Senior Indebtedness 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 XIII. In the event
that the Trustee determines, in good faith, that evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XIII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such payment or distribution and
other facts pertinent to the rights of such Person under this Article XIII, 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. The provisions of Sections 7.01 and 7.02
shall be applicable to all actions or omissions of actions by the Trustee pursuant to this Article
XIII.




     Section 13.14. Trustee to Effectuate Subordination. Each Holder by accepting a Debt
Security authorizes and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination between the Holders of Debt
Securities and the holders of Senior Indebtedness as provided in this Article XIII and appoints the
Trustee as attorney-in-fact for any and all such purposes.



     Section 13.15. Trustee Not Fiduciary for Holders of Senior Indebtedness. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not
be liable to any such holders if it shall mistakenly pay over or distribute to Holders of Debt
Securities or the Company or any other Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article XIII or otherwise.



     Section 13.16. Reliance by holders of Senior Indebtedness On Subordination Provisions.
Each Holder by accepting a Debt Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the
issuance of the Debt Securities, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to hold, or in continuing to
hold, such Senior Indebtedness.



74









 





     The Trustee hereby accepts the trusts in this Indenture upon the terms and conditions herein
set forth.



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



	 	 	 	 	 
	 	AMERICAN OIL & GAS INC.

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	 	[                    ], as Trustee

 	 
	 	By:  	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




75