exv4w9






Exhibit 4.9




 


 



ANGLOGOLD ASHANTI HOLDINGS PLC

as Issuer




ANGLOGOLD ASHANTI LIMITED

as Guarantor



THE BANK OF NEW YORK MELLON,




Trustee



 






Form of Indenture




Dated as of                     



 





 


 

















 








ANGLOGOLD ASHANTI HOLDINGS PLC

as Issuer




AND



ANGLOGOLD ASHANTI LIMITED

as Guarantor



Reconciliation and tie between Trust Indenture Act

of 1939 and Indenture, dated as of                     



	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	 
	 	 
	§ 310(a)(1)
	 	607(a)
	(a)(2)
	 	607(a)
	(b)
	 	608
	§ 312(c)
	 	701
	§ 314(a)
	 	703
	(a)(4)
	 	1004
	(c)(1)
	 	102
	(c)(2)
	 	102
	(e)
	 	102
	§ 315(b)
	 	601
	§
316(a)(last sentence)
	 	101 (“Outstanding”)
	(a)(1)(A)
	 	502, 512
	(a)(1)(B)
	 	513
	(b)
	 	508
	(c)
	 	104(e)
	§ 317(a)(1)
	 	503
	(a)(2)
	 	504
	(b)
	 	1003
	§ 318(a)
	 	111








 




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














 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 		 
	PARTIES
	 	 	 	 	1	 
	RECITALS OF THE COMPANY	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 
	 	 	 	 	 	 
	SECTION 101.
	 	Definitions	 	 	1	 
	 
	 	 “Act”
	 	 	2	 
	 
	 	 “Additional Amounts”
	 	 	2	 
	 
	 	 “Affiliate”
	 	 	2	 
	 
	 	 “Attributable Debt”
	 	 	2	 
	 
	 	 “Authenticating Agent”
	 	 	3	 
	 
	 	 “Authorized Newspaper”
	 	 	3	 
	 
	 	 “Bearer Security”
	 	 	3	 
	 
	 	 “Board of Directors”
	 	 	3	 
	 
	 	 “Board Resolution”
	 	 	3	 
	 
	 	 “Business Day”
	 	 	3	 
	 
	 	 “Capital Markets Indebtedness”
	 	 	3	 
	 
	 	 “Clearstream”
	 	 	3	 
	 
	 	 “Commission”
	 	 	3	 
	 
	 	 “Common Depositary”
	 	 	3	 
	 
	 	 “Company”
	 	 	4	 
	 
	 	 “Company
Request” or “Company Order”
	 	 	4	 
	 
	 	 “Consolidated Net Tangible Assets”
	 	 	4	 
	 
	 	 “Conversion Date”
	 	 	4	 
	 
	 	 “Conversion Event”
	 	 	4	 
	 
	 	 “Corporate Trust Office”
	 	 	4	 
	 
	 	 “corporation”
	 	 	4	 
	 
	 	 “coupon”
	 	 	4	 
	 
	 	 “Currency”
	 	 	4	 
	 
	 	 “Debt”
	 	 	4	 
	 
	 	 “Default”
	 	 	5	 
	 
	 	 “Defaulted Interest”
	 	 	5	 
	 
	 	 “Depositary”
	 	 	5	 
	 
	 	 “Dollar”
or “$”
	 	 	5	 
	 
	 	 “Dollar Equivalent of the Currency Unit”
	 	 	5	 








 




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














 










ii




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	 	 
	 
	 	 “Dollar Equivalent of the Foreign Currency”
	 	 	5	 
	 
	 	 “Election Date”
	 	 	5	 
	 
	 	 “Euro”
	 	 	5	 
	 
	 	 “Euroclear”
	 	 	5	 
	 
	 	 “Event of Default”
	 	 	5	 
	 
	 	 “Exchange Date”
	 	 	5	 
	 
	 	 “Exchange Rate Agent”
	 	 	5	 
	 
	 	 “Exchange Rate Officers’ Certificate”
	 	 	5	 
	 
	 	 “Federal Bankruptcy Code”
	 	 	6	 
	 
	 	 “Foreign Currency”
	 	 	6	 
	 
	 	 “Government Obligations”
	 	 	6	 
	 
	 	 “Guarantee”
	 	 	6	 
	 
	 	 “Guarantor”
	 	 	6	 
	 
	 	 “Guarantor
Request” and “Guarantor Order”
	 	 	6	 
	 
	 	 “Holder”
	 	 	6	 
	 
	 	 “Indenture”
	 	 	6	 
	 
	 	 “Indexed Security”
	 	 	7	 
	 
	 	 “interest”
	 	 	7	 
	 
	 	 “Interest Payment Date”
	 	 	7	 
	 
	 	 “Lien”
	 	 	7	 
	 
	 	 “Margin Stock”
	 	 	7	 
	 
	 	 “Market Exchange Rate”
	 	 	7	 
	 
	 	 “Maturity”
	 	 	8	 
	 
	 	 “Officers’ Certificate”
	 	 	8	 
	 
	 	 “Opinion of Counsel”
	 	 	8	 
	 
	 	 “Original Issue Discount Security”
	 	 	8	 
	 
	 	 “Outstanding”
	 	 	8	 
	 
	 	 “Paying Agent”
	 	 	9	 
	 
	 	 “Person”
	 	 	9	 
	 
	 	 “Place of Payment”
	 	 	9	 
	 
	 	 “Predecessor Security”
	 	 	9	 
	 
	 	 “Principal Property”
	 	 	10	 
	 
	 	 “Project Finance Indebtedness”
	 	 	10	 
	 
	 	 “Redemption Date”
	 	 	10	 
	 
	 	 “Redemption Price”
	 	 	10	 
	 
	 	 “Registered Security”
	 	 	10	 
	 
	 	 “Regular Record Date”
	 	 	10	 
	 
	 	 “Repayment Date”
	 	 	10	 
	 
	 	 “Repayment Price”
	 	 	10	 
	 
	 	 “Responsible Officer”
	 	 	10	 
	 
	 	 “Restricted Securities”
	 	 	11	 
	 
	 	 “Restricted Subsidiary”
	 	 	11	 
	 
	 	 “Securities”
	 	 	11	 
	 
	 	 “Security
Register” and “Security Registrar”
	 	 	11	 
	 
	 	 “Special Record Date”
	 	 	11	 
	 
	 	 “Stated Maturity”
	 	 	11	 
















 






iii





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	 	 
	 
	 	 “Subsidiary”
	 	 	11	 
	 
	 	 “Taxing Jurisdiction”
	 	 	11	 
	 
	 	 “Trust
Indenture Act” or “TIA”
	 	 	11	 
	 
	 	 “Trustee”
	 	 	12	 
	 
	 	 “United States”
	 	 	12	 
	 
	 	 “United States person”
	 	 	12	 
	 
	 	 “Valuation Date”
	 	 	12	 
	 
	 	 “Voting Stock”
	 	 	12	 
	 
	 	 “Yield to Maturity”
	 	 	12	 
	SECTION 102.
	 	Compliance Certificates and Opinions	 	 	12	 
	SECTION 103.
	 	Form of Documents Delivered to Trustee	 	 	13	 
	SECTION 104.
	 	Acts of Holders	 	 	13	 
	SECTION 105.
	 	Notices, etc. to Trustee, the Company and the Guarantor	 	 	15	 
	SECTION 106.
	 	Notice to Holders; Waiver	 	 	16	 
	SECTION 107.
	 	Effect of Headings and Table of Contents	 	 	17	 
	SECTION 108.
	 	Successors and Assigns	 	 	17	 
	SECTION 109.
	 	Separability Clause	 	 	17	 
	SECTION 110.
	 	Benefits of Indenture	 	 	17	 
	SECTION 111.
	 	Governing Law	 	 	17	 
	SECTION 112.
	 	Legal Holidays	 	 	18	 
	SECTION 113.
	 	Submission to Jurisdiction; Appointment of Agent for Service of Process	 	 	18	 
	SECTION 114.
	 	Waiver of Jury Trial	 	 	19	 
	SECTION 115.
	 	Force Majeure	 	 	19	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE TWO SECURITY FORMS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 201.
	 	Forms Generally	 	 	19	 
	SECTION 202.
	 	Form of Trustee’s Certificate of Authentication	 	 	20	 
	SECTION 203.
	 	Securities Issuable in Global Form	 	 	20	 
	SECTION 204.
	 	Form of Guarantee	 	 	21	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE THREE THE SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 301.
	 	Amount Unlimited; Issuable in Series	 	 	22	 
	SECTION 302.
	 	Denominations	 	 	26	 
	SECTION 303.
	 	Execution, Authentication, Delivery and Dating	 	 	26	 
	SECTION 304.
	 	Temporary Securities	 	 	29	 
	SECTION 305.
	 	Registration, Registration of Transfer and Exchange	 	 	31	 
	SECTION 306.
	 	Mutilated, Destroyed, Lost and Stolen Securities	 	 	35	 
	SECTION 307.
	 	Payment of Interest; Interest Rights Preserved; Optional Interest Reset	 	 	36	 
	SECTION 308.
	 	Optional Extension of Stated Maturity	 	 	39	 
	SECTION 309.
	 	Persons Deemed Owners	 	 	40	 
	SECTION 310.
	 	Cancellation	 	 	40	 
	SECTION 311.
	 	Computation of Interest	 	 	41	 
	SECTION 312.
	 	Currency and Manner of Payments in Respect of Securities	 	 	41	 
















 






iv




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	 	 
	SECTION 313.
	 	Appointment and Resignation of Successor Exchange Rate Agent	 	 	44	 
	SECTION 314.
	 	CUSIP Numbers	 	 	45	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE FOUR SATISFACTION AND DISCHARGE	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 401.
	 	Satisfaction and Discharge of Indenture	 	 	45	 
	SECTION 402.
	 	Application of Trust Money	 	 	46	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE FIVE REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 501.
	 	Events of Default	 	 	47	 
	SECTION 502.
	 	Acceleration of Maturity; Rescission and Annulment	 	 	48	 
	SECTION 503.
	 	Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	49	 
	SECTION 504.
	 	Trustee May File Proofs of Claim	 	 	50	 
	SECTION 505.
	 	Trustee May Enforce Claims Without Possession of Securities	 	 	50	 
	SECTION 506.
	 	Application of Money Collected	 	 	51	 
	SECTION 507.
	 	Limitation on Suits	 	 	51	 
	SECTION 508.
	 	Unconditional Right of Holders to Receive Principal, Premium and Interest	 	 	52	 
	SECTION 509.
	 	Restoration of Rights and Remedies	 	 	52	 
	SECTION 510.
	 	Rights and Remedies Cumulative	 	 	52	 
	SECTION 511.
	 	Delay or Omission Not Waiver	 	 	52	 
	SECTION 512.
	 	Control by Holders	 	 	53	 
	SECTION 513.
	 	Waiver of Past Defaults	 	 	53	 
	SECTION 514.
	 	Waiver of Stay or Extension Laws	 	 	53	 
	SECTION 515.
	 	Undertaking for Costs	 	 	54	 
	SECTION 516.
	 	Statement by Officers as to Default	 	 	54	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE SIX THE TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 601.
	 	Notice of Defaults	 	 	54	 
	SECTION 602.
	 	Certain Rights of Trustee	 	 	54	 
	SECTION 603.
	 	Trustee Not Responsible for Recitals or Issuance of Securities	 	 	57	 
	SECTION 604.
	 	May Hold Securities	 	 	57	 
	SECTION 605.
	 	Money Held in Trust	 	 	58	 
	SECTION 606.
	 	Compensation and Reimbursement	 	 	58	 
	SECTION 607.
	 	Corporate Trustee Required; Eligibility	 	 	59	 
	SECTION 608.
	 	Resignation and Removal; Appointment of Successor	 	 	59	 
	SECTION 609.
	 	Acceptance of Appointment by Successor	 	 	60	 
	SECTION 610.
	 	Merger, Conversion, Consolidation or Succession to Business	 	 	61	 
	SECTION 611.
	 	Appointment of Authenticating Agent	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 
	 	 	 	 	 	 
	SECTION 701.
	 	Disclosure of Names and Addresses of Holders	 	 	63	 
















 






v




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	 	 
	SECTION 702.
	 	Reports by Trustee	 	 	63	 
	SECTION 703.
	 	Reports by the Company and the Guarantor	 	 	64	 
	 
	 	 	 	 	 	 
	ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 801.
	 	Company or Guarantor May Consolidate, etc., Only on Certain Terms	 	 	65	 
	SECTION 802.
	 	Successor Person Substituted	 	 	65	 
	SECTION 803.
	 	Assumption by Guarantor	 	 	66	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE NINE SUPPLEMENTAL INDENTURES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 901.
	 	Supplemental Indentures Without Consent of Holders	 	 	66	 
	SECTION 902.
	 	Supplemental Indentures with Consent of Holders	 	 	68	 
	SECTION 903.
	 	Execution of Supplemental Indentures	 	 	69	 
	SECTION 904.
	 	Effect of Supplemental Indentures	 	 	69	 
	SECTION 905.
	 	Conformity with Trust Indenture Act	 	 	69	 
	SECTION 906.
	 	Reference in Securities to Supplemental Indentures	 	 	69	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE TEN COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1001.
	 	Payment of Principal, Premium, if any, and Interest	 	 	70	 
	SECTION 1002.
	 	Maintenance of Office or Agency	 	 	70	 
	SECTION 1003.
	 	Money for Securities Payments to Be Held in Trust	 	 	72	 
	SECTION 1004.
	 	Statement as to Compliance	 	 	73	 
	SECTION 1005.
	 	Additional Amounts	 	 	73	 
	SECTION 1006.
	 	Limitation on Liens	 	 	75	 
	SECTION 1007.
	 	Limitation on Sale and Leaseback Transactions	 	 	79	 
	SECTION 1008.
	 	Waiver of Certain Covenants	 	 	80	 
	SECTION 1009.
	 	Calculation of Original Issue Discount	 	 	80	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE ELEVEN REDEMPTION OF SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1101.
	 	Applicability of Article	 	 	81	 
	SECTION 1102.
	 	Election to Redeem; Notice to Trustee	 	 	81	 
	SECTION 1103.
	 	Selection by Trustee of Securities to Be Redeemed	 	 	81	 
	SECTION 1104.
	 	Notice of Redemption	 	 	81	 
	SECTION 1105.
	 	Deposit of Redemption Price	 	 	83	 
	SECTION 1106.
	 	Securities Payable on Redemption Date	 	 	83	 
	SECTION 1107.
	 	Securities Redeemed in Part	 	 	84	 
	SECTION 1108.
	 	Optional Redemption Due to Changes in Tax Treatment	 	 	84	 
















 






vi




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	 	 
	 
	 	ARTICLE TWELVE SINKING FUNDS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1201.
	 	Applicability of Article	 	 	85	 
	SECTION 1202.
	 	Satisfaction of Sinking Fund Payments with Securities	 	 	85	 
	SECTION 1203.
	 	Redemption of Securities for Sinking Fund	 	 	86	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1301.
	 	Applicability of Article	 	 	86	 
	SECTION 1302.
	 	Repayment of Securities	 	 	86	 
	SECTION 1303.
	 	Exercise of Option	 	 	87	 
	SECTION 1304.
	 	When Securities Presented for Repayment Become Due and Payable	 	 	87	 
	SECTION 1305.
	 	Securities Repaid in Part	 	 	88	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1401.
	 	Applicability of Article;
Company’s and Guarantor’s Option to Effect Defeasance or Covenant Defeasance	 	 	88	 
	SECTION 1402.
	 	Defeasance and Discharge	 	 	89	 
	SECTION 1403.
	 	Covenant Defeasance	 	 	89	 
	SECTION 1404.
	 	Conditions to Defeasance or Covenant Defeasance	 	 	90	 
	SECTION 1405.
	 	Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions	 	 	91	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1501.
	 	Purposes for Which Meetings May Be Called	 	 	93	 
	SECTION 1502.
	 	Call, Notice and Place of Meetings	 	 	93	 
	SECTION 1503.
	 	Persons Entitled to Vote at Meetings	 	 	93	 
	SECTION 1504.
	 	Quorum; Action	 	 	94	 
	SECTION 1505.
	 	Determination of Voting Rights; Conduct and Adjournment of Meetings	 	 	95	 
	SECTION 1506.
	 	Counting Votes and Recording Action of Meetings	 	 	96	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE SIXTEEN GUARANTEE OF SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1601.
	 	Guarantee	 	 	96	 
	SECTION 1602.
	 	Execution of Guarantee	 	 	98	 
















 






vii




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 	 	 	 
	TESTIMONIUM	 	 	 	99
	SIGNATURES AND SEALS	 	 	 	99
	 
	 	 	 	 	 	 
	FORMS OF CERTIFICATION
	 	EXHIBIT A



















 




1


          INDENTURE, dated as of                                         , among AngloGold Ashanti Holdings plc, a
corporation duly organized and existing under the laws of the Isle of Man (herein called the
“Company”), having its principal office at 1st Floor, Atlantic House, 4-8 Circular Road,
Douglas, Isle of Man, IM1 1AG, AngloGold Ashanti Limited, a corporation duly organized and existing
under the laws of South Africa (herein called the “Guarantor”), having its principal office at 76
Jeppe Street, Newtown, Johannesburg, 2001 (PO Box 62117, Marshalltown, 2107), South Africa, and The
Bank of New York Mellon, a New York banking corporation, as Trustee hereunder (herein called the
“Trustee”).




RECITALS OF THE COMPANY




          The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the “Securities”), which may or may not be exchangeable for the
Guarantor’s ordinary shares, to be issued in one or more series, unlimited as to principal amount,
to bear such rates of interest, to mature at such times and to have such other provisions as shall
be fixed as hereinafter provided.




          The Guarantor has duly authorized the execution and delivery of this Indenture and deems it
appropriate from time to time to issue its guaranty of the Securities on the terms herein provided.




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




          This Indenture is subject to South African Reserve Bank approval.




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




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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




ARTICLE ONE




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION



          SECTION 101. Definitions.




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





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













 





2

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




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with International Financial Reporting Standards, and, except as otherwise herein
expressly provided, the term “International Financial Reporting Standards” with respect to any
computation required or permitted hereunder shall mean such accounting standards as shall be
applicable at the date of such computation; and




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



          Certain terms, used principally in Article Three, are defined in that Article.




          “Act”, when used with respect to any Holder, has the meaning specified in Section 104.




          “Additional Amounts” has the meaning specified in Section 1005.




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




          “Attributable Debt” means, as to any particular lease in a sale and leaseback transaction (as
defined in Section 1007), synthetic lease or other finance-type lease under which any Person is at
the time liable for a term of more than 12 months (but, for the sake of clarity, excluding any
operating lease and lease entered into for the bona fide purpose of conducting mining, exploration
or other operations), at any date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by such Person under such lease during the remaining term
thereof (excluding any subsequent renewal or other extension options held by the lessee),
discounted from the respective due dates thereof to such date at the rate of              , compounded
monthly. The net amount of rent required to be paid under any such lease for any such period shall
be the aggregate amount of the rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs, services, insurance,
taxes, assessments, water rates and similar charges and contingent rents (such as those based on
sales). In the case of any lease which is terminable by the lessee upon the payment of a penalty,
such net amount of rent shall include the lesser of (i) the total discounted net amount of rent
required to be paid from the later of the first date upon which such lease may be so terminated or
the date of the determination of such net amount of rent, as the case may be, and (ii) the amount
of such penalty (in which event no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated).

















 






3


          “Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the
Trustee pursuant to Section 611 to authenticate Securities.




          “Authorized Newspaper” means a newspaper, in the English language or in an official language
of the country of publication, customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place. 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.




          “Bearer Security” means any Security except a Registered Security.




          “Board of Directors” means, as the context may require, (1) with respect to the Company,
either the Board of Directors of the Company or any committee of such Board of Directors duly
authorized to act hereunder and (2) with respect to the Guarantor, either the Board of Directors of
the Guarantor or any committee of such Board of Directors duly authorized to act hereunder.




          “Board Resolution” means a copy of a resolution certified by any two directors of the Company,
or any two directors, or any director and secretary, of the Guarantor, as the case may be, to have
been duly adopted by its Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.




          “Business Day”, when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means, unless otherwise specified with
respect to any Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment or other location
are authorized or obligated by law or executive order to close.




          “Capital Markets Indebtedness” means any indebtedness for money borrowed or interest thereon
in the form of bonds, notes, debentures, loan stock or other similar securities that are, or are
capable of being, quoted, listed or ordinarily dealt with in any stock exchange, over-the-counter
or other securities market, having an original maturity of more than 365 days from its date of
issue, or any guarantee or indemnity in respect thereof.




          “Clearstream” means Clearstream Banking, société anonyme, formerly known as Cedelbank, or its
successor.




          “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.




          “Common Depositary” has the meaning specified in Section 304.

















 






4


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




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




          “Consolidated Net Tangible Assets” means the total amount of assets (less applicable reserves
and other properly deductible items) after deducting therefrom (i) all current liabilities
(excluding any current liabilities which are by their terms extendible or renewable at the option
of the obligor thereon to a time more than 12 months after the time as of which the amount thereof
is being computed and excluding current maturities of long-term indebtedness and capital lease
obligations) and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the most recent balance sheet of the
 Guarantor and its consolidated Subsidiaries (but,
in any event, as of a date within 150 days of the date of determination) prepared in accordance
with International Financial Reporting Standards and expressed in
Dollars.




          “Conversion Date” has the meaning specified in Section 312(d).




          “Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government
of the country which issued such Currency and by a central bank or other public institution of or
within the international banking community for the settlement of transactions, (ii) the euro both
within the European Union and for the settlement of transactions by public institutions of or
within the European Union or (iii) any currency unit (or composite currency) other than the euro
for the purposes for which it was established.




          “Corporate Trust Office” means the principal corporate trust office of the Trustee, at which
at any particular time its corporate trust business shall be administered, which office on the date
of execution of this Indenture is located at 101 Barclay Street, New York, Floor 4E, New York
10286, Attention: Global Finance Americas, or such other address as the Trustee may designate from
time to time by notice to the Holders, the Company and the Guarantor, except that with respect to
presentation of Securities for payment or for registration of transfer or exchange, such term shall
mean the office or agency of the Trustee at which, at any particular time, its corporate agency
business shall be conducted.




          “corporation” includes corporations, associations, companies and business trusts.




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




          “Currency” means any currency or currencies, composite currency or currency unit or currency
units, including, without limitation, the euro, issued by the government of one or more countries
or by any recognized confederation or association of such governments.




          “Debt” means notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed.

















 





5



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




          “Defaulted Interest” has the meaning specified in Section 307.




          “Depositary” means the clearing agency registered under the Securities Exchange Act of 1934,
as amended, that is designated to act as the depositary with respect to any Securities issued in
global form, and unless otherwise provided in Section 301 with respect to any series of Securities,
The Depository Trust Company shall be the initial Depositary for any series of Securities, until a
successor shall have been appointed and become such pursuant to the applicable provisions of this
Indenture and, thereafter, “Depositary” shall mean or include such successor.




          “Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United
States of America as at the time shall be legal tender for the payment of public and private debts.




          “Dollar Equivalent of the Currency Unit” has the meaning specified in Section 312(g).




          “Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 312(f).




          “Election Date” has the meaning specified in Section 312(h).




          “Euro” means the lawful currency of the member states of the European Union that adopt the
single currency in accordance with the Treaty establishing the European Community, as amended by
the Treaty on European Union.




          “Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System (or any
successor securities clearing system).




          “Event of Default” has the meaning specified in Section 501.




          “Exchange Date” has the meaning specified in Section 304.




          “Exchange Rate Agent” means, with respect to Securities of or within any series, unless
otherwise specified with respect to any Securities pursuant to Section 301, a New York Clearing
House bank, designated pursuant to Section 301 or Section 313.




          “Exchange Rate Officers’ Certificate” means a certificate setting forth (i) the applicable
Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 in the relevant Currency),
payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent
(in the case of a telex) or signed (in the case of a certificate) by any two directors of the
Company or any two directors, or any director and secretary, of the Guarantor, as applicable.

















 






6


          “Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as
amended from time to time.




          “Foreign Currency” means any Currency other than Currency of the United States.




          “Government Obligations” means, unless otherwise specified with respect to any series of
Securities pursuant to Section 301, securities which are (i) direct obligations of the government
which issued the Currency in which the Securities of a particular series are payable or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed by such government, which, in either case, are full
faith and credit obligations of such government payable in such Currency and are not callable or
redeemable at the option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest or principal of the Government Obligation
evidenced by such depository receipt.




          “Guarantee” means the unconditional guarantee by the Guarantor of any Security of any series
authenticated and delivered pursuant to this Indenture either (i) if specified, as contemplated by
Section 301, to be applicable to Securities of such series and not endorsed on such Securities
pursuant to Article Sixteen hereof, or (ii) in all other cases, endorsed on such Security.




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




          “Guarantor Request” and “Guarantor Order” mean, respectively, a written request or order
signed in the name of the Guarantor by any two directors, or any director and secretary, of the
Guarantor, and delivered to the Trustee.




          “Holder” means, in the case of a Registered Security, the Person in whose name a Security is
registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, shall mean the bearer thereof.




          “Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at any time
more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with
respect to any one or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended by one or
















 





7


more indentures supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any provisions or terms which
relate solely to other series of Securities for which such Person is not Trustee, regardless of
when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.




          “Indexed Security” means a Security the terms of which provide that the principal amount
thereof payable at Stated Maturity may be more or less than the principal face amount thereof at
original issuance.




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




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




          “Lien” means any pledge, mortgage, lien, charge, encumbrance or security interest.




          “Margin Stock” has the meaning specified in Regulation U of the Board of Governors of the U.S.
Federal Reserve System.




          “Market Exchange Rate” means, unless otherwise specified with respect to any Securities
pursuant to Section 301, (i) for any conversion involving a currency unit on the one hand and
Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit
and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 301 for
the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign
Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers
quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York
and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made from major banks located in either
New York City, London or any other principal market for Dollars or such purchased Foreign Currency,
in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in
its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank
of New York as of the most recent available date, or quotations from one or more major banks in New
York City, London or another principal market for the Currency in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of
foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall
be
















 






8

that upon which a non-resident issuer of securities designated in such Currency would purchase
such Currency in order to make payments in respect of such securities.




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




          “Officers’ Certificate” means a certificate signed by any two directors of the Company or by
any two directors, or any director and secretary, of the Guarantor, as applicable, that complies
with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.




          “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company or
the Guarantor or who may be an employee of or other counsel for the Company or the Guarantor.




          “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.




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





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




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




     (iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect
to which the Company or the Guarantor has effected defeasance and/or covenant defeasance as
provided in Article Fourteen; and




     (iv) Securities which have been paid pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company;













 





9

provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign
Currency that may be counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an Exchange Rate Officers’
Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Company or the Guarantor or any other obligor upon
the Securities or any Affiliate of the Company or the Guarantor or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in making such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the pledgee is not the
Company or the Guarantor or any other obligor upon the Securities or any Affiliate of the Company
or the Guarantor or such other obligor.




          “Paying Agent” means any Person (including the Company acting as Paying Agent) authorized by
the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on
behalf of the Company.




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




          “Place of Payment” means, when used with respect to the Securities of or within any series,
the place or places where the principal of (and premium, if any) and interest, if any, on such
Securities are payable as specified as contemplated by Sections 301 and 1002.




          “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated,
destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt
















 





10


as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains, as the case may be.




          “Principal Property” means any mine, together with any fixtures comprising a part thereof, and
any plant or other facility, together with any land upon which such plant or other facility is
erected and fixtures comprising a part thereof, used primarily for mining or processing, in each
case, and the net book value of which on the date as of which the determination is being made
exceeds, with respect to a series of Securities, a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, of Consolidated Net Tangible Assets; provided, that Principal Property shall not
include (a) any mine, plant or facility which, in the opinion of the Board of Directors of the
Guarantor, is not of material importance to the total business conducted by the Guarantor and the
Restricted Subsidiaries as an entirety or (b) any portion of a particular mine, plant or facility
which, in the opinion of the Guarantor is not of material importance to the use or operation of
such mine, plant or facility.




          “Project Finance Indebtedness” means any indebtedness incurred in relation to any asset for
the purposes of financing the whole or any part of the acquisition, creation, construction, operation, improvement or development of such asset where the financial institution(s) or other persons to whom such
indebtedness is owed (and any trustees or other agents therefor) has or have recourse to (i) the applicable project borrower (where such
project borrower is formed solely or principally for the purpose of the relevant project) and any or all of its rights and assets and/or
(ii) such asset (or any derivative asset thereof) but, in either case, does not or do not have
recourse to the Guarantor or any Subsidiary other than in respect of (a) the Guarantor or such Subsidiary’s interests in the equity or indebtedness of the applicable project borrower or the interests of the Guarantor or any other Subsidiary in the equity or indebtedness of any Subsidiary whose primary asset is its direct
 or indirect interests in the equity or indebtedness of the applicable project borrower, (b) the rights of the applicable project borrower under any
contract with the Guarantor or any other Subsidiary or (c) claims for indemnity or damages arising from breach of representations or covenants made by the Guarantor or such Subsidiary to such financial institution or other person.




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




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




          “Registered Security” means any Security registered in the Security Register.




          “Regular Record Date” for the interest payable on any Interest Payment Date on the Registered
Securities of or within any series means the date specified for that purpose as contemplated by
Section 301.




          “Repayment Date” means, when used with respect to any Security to be repaid at the option of
the Holder, the date fixed for such repayment pursuant to this Indenture.




          “Repayment Price” means, when used with respect to any Security to be repaid at the option of
the Holder, the price at which it is to be repaid pursuant to this Indenture.




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

















 






11


          “Restricted Securities” has the meaning specified in Section 1006.




          “Restricted Subsidiary” means any Subsidiary wholly owned by the Guarantor which owns a
Principal Property; provided, that Restricted Subsidiary shall not include any Subsidiary the
primary business of which consists of financing operations in connection with leasing and
conditional sales transactions on behalf of the Company, the Guarantor and their Subsidiaries,
and/or purchasing accounts receivable and/or making loans secured by accounts receivable or
inventory, or which is otherwise primarily engaged in the business of a finance company. In the
event that there shall be at any time a question as to whether a Subsidiary is described in the
foregoing clause (a) or (b) or an exception described herein, such matter shall be determined for
all purposes of this Indenture by a Board Resolution.




          “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture;
provided, however, that if at any time there is more than one Person acting as
Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.




          “Security Register” and “Security Registrar” have the respective meanings specified in Section
305.




          “Special Record Date” for the payment of any Defaulted Interest on the Registered Securities
of or within any series means a date fixed by the Trustee pursuant to Section 307.




          “Stated Maturity”, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security or a coupon representing
such installment of interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may be extended pursuant to
the provisions of Section 308.




          “Subsidiary” means any corporation of which at the time of determination the Guarantor,
directly and/or indirectly through one or more Subsidiaries, owns more than 50% of the shares of
Voting Stock.




          “Taxing Jurisdiction” means South Africa or the Isle of Man, any other jurisdiction where the
Company or the Guarantor is tax resident or in which the Company does business, the government of a
jurisdiction in which any successor to the Company is organized or tax resident or any political
subdivision or taxing authority thereof or therein.




          “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force at the date
as of which this Indenture was executed, except as provided in Section 905 provided, however, that
in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” or “TIA”
means the Trust Indenture Act of 1939 as so amended.

















 





12



          “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than one such
Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee
with respect to Securities of that series.




          “United States” means, unless otherwise specified with respect to any Securities pursuant to
Section 301, 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 person” means, unless otherwise specified with respect to any Securities
pursuant to Section 301, an individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the laws of the United
States or an estate or trust the income of which is subject to United States federal income
taxation regardless of its source.




          “Valuation Date” has the meaning specified in Section 312(c).




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




          “Yield to Maturity” means the yield to maturity, computed at the time of issuance of a
Security (or, if applicable, at the most recent redetermination of interest on such Security) and
as set forth in such Security in accordance with generally accepted United States bond yield
computation principles.




          SECTION 102. Compliance Certificates and Opinions.




          Upon any application or request by the Company or the Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or the Guarantor, as the case may be,
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with which constitutes a
condition precedent) 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 covenant or condition provided
for in this Indenture (other than pursuant to Section 1004) 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;













 





13

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




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




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



          SECTION 103. Form of Documents Delivered to Trustee.




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




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




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




          SECTION 104. Acts of Holders.




          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all
series or one or more series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article
















 





14


Fifteen, or a combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby expressly required, to the
Company and the Guarantor. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or of the holding by
any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee, the Company and the Guarantor and any agent of the Trustee, the Company or
the Guarantor, if made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 1506.




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




          (c) The principal amount and serial numbers of Registered Securities held by any Person, and
the date of holding the same, shall be proved by the Security Register.




          (d) The principal amount and serial numbers of Bearer Securities held by any Person, and the
date of holding the same, may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company and the Guarantor, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee, the Company and the Guarantor may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some
other Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of holding the same, may also be proved in any
other manner that the Trustee deems sufficient.




          (e) If the Company or the Guarantor shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company or
the Guarantor, as the case may be, may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but neither the Company nor the
Guarantor shall have any obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board
















 





15


Resolution, which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven months after the
record date.




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




          SECTION 105. Notices, etc. to Trustee, the Company and the Guarantor.




          Any notice or communication shall be sufficiently given to the Trustee, the Company or the
Guarantor, as the case may be, if written and (a) if delivered in person, when received or (b) if
mailed by registered or overnight mail, the official postmark date or (c) as between the Company, the Guarantor or the
Trustee, if sent by facsimile transmission, when transmission is confirmed, in each case addressed
as follows:



if to the Company:

AngloGold Ashanti Holdings plc

1st Floor

Atlantic House

4-8 Circular Road

Douglas

Isle of Man IM1 1GA

Telephone No.: +44 (1624) 697 280

Facsimile No.: +44 (1624) 613 874



if to the Guarantor:

AngloGold Ashanti Limited

76 Jeppe Street

Newtown, Johannesburg, 2001

PO Box 62117, Marshalltown, 2107

South Africa

Telephone No.: +27 (11) 637-6000

Facsimile No.: +27 (11) 637-6666

Attention: The Company Secretary















 





16


if to the Trustee:

101 Barclay Street, 4E

New York, New York 10286

United States of America

Telephone No.: +1 212 815 5587

Facsimile No.: +1 212 815 5366

Attention: Global Finance Americas, International Team




          The Trustee agrees to accept and act upon facsimile or email transmission of written
instructions pursuant to this Indenture; provided, however, that (a) the party providing such
written instructions, subsequent to such transmission of written instructions, shall provide the
originally executed instructions or directions to the Trustee in a timely manner, and (b) such
originally executed instructions or directions shall be signed by an authorized representative of
the party providing such instructions or directions.




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




          SECTION 106. Notice to Holders; Waiver.




          Where this Indenture provides for notice of any event to Holders of Registered Securities by
the Company, the Guarantor or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each
such Holder affected by such event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such notice.




          In case, by reason of the suspension of or irregularities in regular mail service or by reason
of any other cause, it shall be impractical to mail notice of any event to Holders of Registered
Securities when such notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.




          Except as otherwise expressly provided herein or otherwise specified with respect to any
Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of London and in such other city or cities as may
be specified in such Securities on a Business Day at least twice, the first such publication to be
not earlier than the earliest date, and not later than the latest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date of the first such
publication.





 











 





17




          In case, by reason of the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause, it shall be impracticable to publish any
notice to Holders of Bearer Securities as provided above, then such notification to Holders of
Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered Securities given as provided
herein.




          Any request, demand, authorization, direction, notice, consent or waiver required or permitted
under this Indenture shall be in the English language.




          Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.




          SECTION 107. Effect of Headings and Table of Contents.









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




          SECTION 108. Successors and Assigns.









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




          SECTION 109. Separability Clause.








          In case any provision in this Indenture or in any Security or coupon 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 110. Benefits of Indenture.









          Nothing in this Indenture or in the Securities or coupons or any Guarantee, express or
implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any
Paying Agent, any Securities Registrar and their successors hereunder and the
Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim
under this Indenture.






          SECTION 111. Governing Law.









          This Indenture and the Securities and coupons shall be governed by and construed in accordance
with the law of the State of New York. This Indenture is subject to the provisions









 



18


of the Trust
Indenture Act that are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.




          SECTION 112. Legal Holidays.









          In any case where any Interest Payment Date, Redemption Date, sinking fund payment date or
Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security or coupon other than
a provision in the Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need
not be made at such Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date or sinking fund payment date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.




          SECTION 113. Submission to Jurisdiction; Appointment of Agent for Service of Process.









          The Company hereby appoints AngloGold Ashanti North America Inc. acting through its office at
7400 East Orchard Road, Suite 350, Greenwood Village, Colorado 80111 as its authorized agent (the
“Authorized Agent”) upon which process may be served in any legal action or proceeding against the
Company with respect to its obligations under this Indenture or the Securities of any series,
instituted in any federal or state court in the Borough of Manhattan, The City of New York by the
Holder of any Security and the Company agrees that service of process upon such Authorized Agent,
together with written notice of said service to the Company by the Person serving the same
addressed as provided in Section 105, shall be deemed in every respect effective service of process
upon the Company in any such legal action or proceeding. The Company hereby irrevocably submits to
the non-exclusive jurisdiction of any such court in respect of any such legal action or proceeding
and waives any objection it may have to the laying of the venue of any such legal action or
proceeding. Such designation shall be irrevocable until all amounts in respect of the principal of
and any premium and interest due and to become due on or in respect of all the Securities issued
under this Indenture have been paid by the Company or the Guarantor, as the case may be, to the
Trustee pursuant to the terms hereof,
the Securities and the Guarantee. Notwithstanding the foregoing, the Company reserves the
right to appoint another Person, selected in its discretion, as a successor Authorized Agent, and
upon acceptance of such consent to service of process by such a successor the designation of the
prior Authorized Agent shall terminate. The Company shall give written notice to the Trustee and
all Holders of the designation by it of a successor Authorized Agent. If for any reason AngloGold
Ashanti North America Inc. ceases to be able to act as the Authorized Agent, the Company will
appoint a successor Authorized Agent in accordance with the preceding sentence. The Company further
agrees to take any and all action, including the filing of any and all documents and instruments as
may be necessary to continue such designation of such agent in full force and effect until this
Indenture has been satisfied and discharged. Service of process upon the Authorized Agent
addressed to it at the address set forth above, as such address may be changed by notice given by
the Authorized Agent to the Trustee, together with written notice of such









 



19


service mailed or
delivered to the Company shall be deemed, in every respect, effective service of process on the
Company.




          SECTION 114. Waiver of Jury Trial.




          EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED
HEREBY.




          SECTION 115. Force Majeure.




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




ARTICLE TWO




SECURITY FORMS



          SECTION 201. Forms Generally.




          The Registered Securities, if any, of each series and the Bearer Securities, if any, of each
series and related coupons shall be in substantially the forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the directors and
officers executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by a director of the Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Security.




          Unless otherwise specified as contemplated by Section 301, Securities in bearer form shall
have interest coupons attached.




          If Article Sixteen is to be applicable to Securities of any series, established as
contemplated by Section 301, then Securities of each such series shall bear a Guarantee in









 



20


substantially the form set forth in Section 204. For any other series of Securities, the Guarantee
shall be endorsed on the Securities and shall be substantially in the form established by or
pursuant to Board Resolutions of the Guarantor in accordance with Section 301 or one or more
indentures supplemental hereto. Notwithstanding the foregoing, the Guarantee or the Guarantees to
be endorsed on the Securities of any series may have such appropriate insertions, omissions,
substitutions and other corrections from the forms thereof referred to above as are required or
permitted by this Indenture and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the directors or officers
delivering the same, in each case as evidenced by such delivery.




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




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




          SECTION 202. Form of Trustee’s Certificate of Authentication.









          Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially
the following form:




TRUSTEE’S CERTIFICATE OF AUTHENTICATION




          Dated:                                         




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




	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as Trustee

 	 
	 	By  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



          SECTION 203. Securities Issuable in Global Form.








          If Securities of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein and may provide
that it shall represent the aggregate amount of Outstanding Securities of such series from time to
time endorsed thereon and that the aggregate amount of Outstanding Securities of such series
represented thereby may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner
and upon instructions given by such Person or Persons as shall be










 



21



specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion
of Counsel.




          The provisions of the last sentence of the penultimate paragraph of Section 303 shall apply to
any Security represented by a Security in global form if such Security was never issued and sold by
the Company and the Company delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence of the penultimate
paragraph of Section 303.




          Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by
Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in
permanent global form shall be made to the Person or Persons specified therein.




          Notwithstanding the provisions of Section 309 and except as provided in the preceding
paragraph, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor and
the Trustee shall treat as the Holder of such principal amount of Outstanding Securities
represented by a permanent global Security (i) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in registered form, or (ii) in the
case of a permanent global Security in bearer form, Euroclear or Clearstream.




          SECTION 204. Form of Guarantee.




          The Guarantee afforded by Article Sixteen shall be endorsed on the Securities of any
applicable series substantially as follows:




          For value received, AngloGold Ashanti Limited, a corporation duly organized and existing under
the laws of South Africa (herein called the “Guarantor”, which term includes any successor Person
under the Indenture (the “Indenture”) referred to in the Security on which this Guarantee is
endorsed), has unconditionally guaranteed, pursuant to the terms of the Guarantee contained in
Article Sixteen of the Indenture, the due and punctual payment of the principal of and any premium
and interest on such Security, when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of such Security and the Indenture.




          All payments pursuant to this Guarantee shall be made without withholding or deduction for, or
on account of, any present or future taxes, duties, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of the Isle of Man or South Africa or the jurisdiction of
organization of any successor to the Company or the Guarantor, or any










 



22



political subdivision or
taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges
are required by the Isle of Man or South Africa or such other jurisdiction or any such subdivision
or authority to be withheld or deducted. In that event, the Guarantor will pay such Additional
Amounts as will result (after deduction of such taxes, duties, assessments or governmental charges
and any additional taxes, duties, assessments or governmental charges payable in respect of such)
in the payment to the Holder of the Security on which this Guarantee is endorsed of the amounts
which would have been payable in respect of the Guarantee thereof had no such withholding or
deduction been required, subject to certain exceptions as set forth in Article Ten of the
Indenture.




          The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant
to the Guarantee and the Indenture are expressly set forth in Article Sixteen of the Indenture, and
reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.




          The Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Security upon which this Guarantee is endorsed shall have been executed by
the Trustee under the Indenture by the manual signature of one of its authorized signatories.




          Capitalized terms used herein and not otherwise defined herein have the meanings specified in
the Indenture.




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




	 	 	 	 	 
	 	Dated:



ANGLOGOLD ASHANTI LIMITED

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title 	 
	 



ARTICLE THREE




THE SECURITIES



          SECTION 301. Amount Unlimited; Issuable in Series.









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




          The Securities may be issued in one or more series. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board











 



23



Resolutions and, subject to
Section 303, set forth in, or determined in the manner provided in, an Officers’ Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance of Securities of
any series, any or all of the following, as applicable (each of which (except for the matters set
forth in clauses (1), (2) and (17) below), if so provided, may be determined from time to time by
the Company with respect to unissued Securities of the series and set forth in such Securities of
the series when issued from time to time):






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




     (2) any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);




     (3) the date or dates, or the method by which such date or dates will be determined or
extended, on which the principal of the Securities of the series is payable;




     (4) the rate or rates at which the Securities of the series shall bear interest, if
any, or the method by which such rate or rates shall be determined, the date or dates from
which such interest shall accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date or dates shall be determined, and
the basis upon which interest shall be calculated if other than on the basis of a 360-day
year of twelve 30-day months;




     (5) the place or places, if any, other than or in addition to the Borough of Manhattan,
The City of New York, where the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, where any Registered Securities of the series may
be surrendered for registration of transfer, where Securities of the series may be
surrendered for exchange, where Securities of the series that are exchangeable may be
surrendered for exchange, as applicable and, if different than the location specified in
Section 106, the place or places where notices or demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served;




     (6) the period or periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company, if the Company is to have that option;




     (7) the obligation, if any, of the Company to redeem, repay or purchase Securities of
the series pursuant to any sinking fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price or prices at which, the Currency
in which, and other terms and conditions upon which Securities of









 



24



the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;




     (8) if other than denominations of $1,000 and any integral multiple thereof, the
denomination or denominations in which any Registered Securities of the series shall be
issuable and, if other than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;




     (9) if other than the Trustee, the identity of each Security Registrar and/or Paying
Agent;




     (10) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the method by which such portion shall be
determined;




     (11) if other than Dollars, the Currency in which payment of the principal of (or
premium, if any) or interest, if any, on the Securities of the series shall be payable or in
which the Securities of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any of the provisions of
Section 312;




     (12) whether the amount of payments of principal of (or premium, if any) or interest,
if any, on the Securities of the series may be determined with reference to an index,
formula or other method (which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices), and the manner in
which such amounts shall be determined;




     (13) whether the principal of (or premium, if any) or interest, if any, on the
Securities of the series are to be payable, at the election of the Company, the Guarantor or
a Holder thereof, in a Currency other than that in which such Securities are denominated or
stated to be payable, the period or periods within which (including the Election Date), and
the terms and conditions upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such Securities are denominated
or stated to be payable and the Currency in which such Securities are to be so payable, in
each case in accordance with, in addition to or in lieu of any of the provisions of Section
312;




     (14) the designation of the initial Exchange Rate Agent, if any;




     (15) the applicability, if any, of Sections 1402 and/or 1403 to the Securities of the
series and any provisions in modification of, in addition to or in lieu of any of the
provisions of Article Fourteen that shall be applicable to the Securities of the series;




     (16) provisions, if any, granting special rights to the Holders of Securities of the
series, including any provisions requiring the Company to make offers
to repurchase Securities, upon the occurrence of such events as may be specified;









 



25



     (17) any deletions from, modifications of or additions to the Events of Default or
covenants (including any deletions from, modifications of or additions to Section 1008) of
the Company or the Guarantor, as the case may be, with respect to Securities of the series,
whether or not such Events of Default or covenants are consistent with the Events of Default
or covenants set forth herein;




     (18) whether Securities of the series are to be issuable as Registered Securities,
Bearer Securities (with or without coupons) or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities of the series are to
be issuable in permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than in the manner provided
in Section 305, whether Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and regulations), whether Bearer
Securities of the series may be exchanged for Registered Securities of such series, and the
circumstances under which and the place or places where any such exchanges may be made and
if Securities of the series are to be issuable in global form, the identity of any initial
depository therefor;




     (19) the date as of which any Bearer Securities of the series and any temporary global
Security representing Outstanding Securities of the series shall be dated if other than the
date of original issuance of the first Security of the series to be issued;




     (20) the Person to whom any interest on any Registered Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;




     (21) if Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions;




     (22) if the Securities of the series are to be issued upon the exercise of warrants,
the time, manner and place for such Securities to be authenticated and delivered;




     (23) whether, under what circumstances and the Currency in which the Company or the
Guarantor will pay Additional Amounts as contemplated by Section 1005 on the Securities of
the series to any Holder who is not a United States person (including any modification to
the definition of such term) in respect of any tax,









 



26



assessment or governmental charge and,
if so, whether the Company or the Guarantor will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such option);




     (24) if the Securities of the series are to be exchangeable for any securities of any
Person (including the Guarantor), the terms and conditions upon which such Securities will
be so exchangeable;




     (25) if the Securities will be entitled to the benefit of the Guarantee afforded by
Article Sixteen or, if not, the form of the Guarantee to be endorsed on the Securities;




     (26) if the Securities of the series or the Guarantee therefor are to be subordinated
to any other Debt, the terms and conditions of such subordination;




     (27) the percentages applicable to each of (i) the definition of Principal Property, (ii) Section 1006
and (iii) Section 1007(a) for such securities; and



     (28) any other terms, conditions, rights and preferences (or limitations on such rights
and preferences) relating to the series (which terms shall not be inconsistent with the
requirements of the Trust Indenture Act or the provisions of this Indenture).



          All Securities of any one series and the coupons appertaining to any Bearer Securities of such
series shall be substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution (subject to Section 303) and set forth in such Officers’ Certificate or in
any such indenture supplemental hereto. Not all Securities of any one series need be issued at the
same time, and, unless otherwise provided, a series may be reopened without the consent of the
Holders for issuances of additional Securities of such series;
provided, however, that in the case of Registered
Securities offered for sale in the United States, no such additional
Securities may be issued unless they are fungible with the Securities of such
Series for U.S. federal income tax purposes.




          If any of the terms of the series are established by action taken pursuant to one or more
Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate setting forth the terms of the series.




          SECTION 302. Denominations.




          The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series,
other than the Bearer Securities issued in global form (which may be of any denomination), shall be
issuable in a denomination of $5,000.




          SECTION 303. Execution, Authentication, Delivery and Dating.




          The Securities and any coupons appertaining thereto and the Guarantees to be noted or endorsed
on the Securities shall be executed on behalf of the Company by any two directors of the Company,
and on behalf of the Guarantor by any two directors of the Guarantor. The signature of any of
these persons on the Securities or coupons and the Guarantees, as the case may be, may be the
manual or facsimile signatures of the present or any future such director








 



27



or officer and may be
imprinted or otherwise reproduced on the Securities. If Article Sixteen is to be applicable to the
Securities of any series, established as contemplated by Section 301, then the Guarantees noted or
endorsed on the Securities of such series shall be executed as provided in Section 1602.




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




          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series together with any coupon appertaining thereto,
executed by the Company, having Guarantees noted or endorsed thereon executed by the Guarantor, to
the Trustee for authentication, together with a Company Order for the authentication and delivery
of such Securities, and the Trustee in accordance with such Company Order shall authenticate and
deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided further that, unless
otherwise specified with respect to any series of Securities pursuant to Section 301, a Bearer
Security may be delivered in connection with its original issuance only if the Person entitled to
receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit
A-1 to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such temporary Security and
this Indenture. If any Security shall be represented by a permanent global Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein
upon original issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance of such beneficial
owner’s interest in such permanent global Security. Except as permitted by Section 306, the
Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. If not all the Securities of any series
are to be issued at one time and if the Board Resolution, Officer’s Certificate or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining terms of particular Securities of such series
such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.




          In authenticating such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be given, and (subject to TIA Sections
315(a) through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel stating:





     (a) that the form or forms of such Securities and any coupons and Guarantee have been
established in conformity with the provisions of this Indenture;









 



28



     (b) that the terms of such Securities and any coupons and Guarantee have been
established in conformity with the provisions of this Indenture;




     (c) that such Securities, together with any coupons appertaining thereto and the
Guarantee thereof, when completed by appropriate insertions and executed and delivered by
the Company and the Guarantor, as applicable, to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the Trustee in accordance
with this Indenture and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company and the Guarantor, respectively, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement of creditors’ rights,
to general equitable principles and to such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such Securities and any coupons;
and




     (d) all conditions precedent in respect of the execution and delivery by the Company
and the Guarantor, as applicable, of such Securities have been complied with.



          Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all
the Securities of any series are to be issued at one time, it shall not be necessary to deliver the
Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of
issuance of each Security, but such documents shall be delivered prior to or at the time of
issuance of the first Security of such series.




          The Trustee shall not be required to authenticate and deliver any such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.




          Each Registered Security shall be dated the date of its authentication and each Bearer
Security shall be dated as of the date specified as contemplated by Section 301.




          No Security or coupon, or Guarantee, shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein duly executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security, coupon and Guarantee have been duly
authenticated and delivered hereunder and are entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of this Indenture
such Security, and the related Guarantee, shall be deemed never to








 



29



 have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture (including, if
applicable, the Guarantee pursuant to Article Sixteen).




          The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute delivery of the Guarantee endorsed or noted thereon on behalf of the Guarantor. The
Guarantor by its execution of this Indenture hereby authorizes the Company, in the name and on
behalf of the Guarantor, to confirm the applicable Guarantee to the Holder of each Security
authenticated and delivered hereunder by its execution and delivery of each such Security, with
such Guarantee noted or endorsed thereon, authenticated and delivered by the Trustee. When
delivered pursuant to the provisions of Section 303 hereof, only Guarantees endorsed or noted on
the Securities shall bind the Guarantor, notwithstanding the fact that the Guarantee does not bear
the signature of the Guarantor.




          SECTION 304. Temporary Securities.









          Pending the preparation of definitive Securities of any series, the Company may execute, the
Guarantor may execute its Guarantee to be noted or endorsed on, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued, in registered form or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and other variations as
conclusively the directors or officers executing such Securities, or Guarantees or notations of the
Guarantee pursuant to Article Sixteen, as applicable, may determine, as conclusively evidenced by
their execution of such Securities or Guarantees or notations, as the case may be. Such temporary
Securities may be in global form.




          Except in the case of temporary Securities in global form (which shall be exchanged in
accordance with the provisions of the following paragraphs), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute, and the Guarantor shall execute the Guarantee
noted or endorsed on, and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized denominations;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.




          If temporary Securities of any series are issued in global form, any such temporary global
Security shall, unless otherwise provided therein, be delivered to the London











 



30



office of a
depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or
to such other accounts as they may direct).




          Without unnecessary delay but in any event not later than the date specified in, or determined
pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Company
shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company and, as applicable, the
Guarantor. On or after the Exchange Date such temporary global Security shall be surrendered by
the Common Depositary to the Trustee, as the Company’s agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global Security, an equal
aggregate principal amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if any combination thereof
is so specified, as requested by the
beneficial owner thereof; provided, however, that, unless otherwise specified
in such temporary global Security, upon such presentation by the Common Depositary, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for its account then
to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by
Clearstream as to the portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture (or in such other form as
may be established pursuant to Section 301); and provided further that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.




          Unless otherwise specified in such temporary global Bearer Security, the interest of a
beneficial owner of Bearer Securities of a series in a temporary global Bearer Security shall be
exchanged for definitive Bearer Securities of the same series and of like tenor following the
Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to
request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date,
copies of which certificate shall be available from the offices of Euroclear and Clearstream, the
Trustee, any Authenticating Agent appointed for such series of Bearer Securities and each Paying
Agent. Unless otherwise specified in such temporary global Bearer Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary global Bearer Security,
except that a Person receiving definitive Bearer Securities must bear the cost of insurance,
postage, transportation and the like in the event that such Person does not take delivery of such
definitive Bearer Securities in person at the offices of Euroclear or Clearstream. Definitive
Bearer Securities to be delivered in exchange for any portion of a temporary global Bearer Security
shall be delivered only outside the United States.










 



31




          Until exchanged in full as hereinabove provided, the temporary Bearer Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive Bearer
Securities of the same series and of like tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 301, interest payable on a temporary global
Bearer Security on an Interest Payment Date for Bearer Securities of such series occurring prior to
the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment
Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established
pursuant to Section 301), for credit without further interest thereon on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial owners of such
temporary global Bearer Security on such Interest Payment Date and who have each delivered to
Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to
the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit
A-1 to this Indenture (or in such other form as may be established pursuant to Section 301).
Notwithstanding anything to the contrary herein contained, the certificates delivered pursuant to
this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this
Section and of the third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Bearer Security with respect to which
such certification was made will be exchanged for
definitive Bearer Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, without further act or deed by
such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal
(or premium, if any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Bearer Security will be made unless and until such interest in such temporary
global Bearer Security shall have been exchanged for an interest in a definitive Bearer Security.
Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be
returned to the Trustee immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section 1003.




          SECTION 305. Registration, Registration of Transfer and Exchange.









          The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register for
each series of Securities (the registers maintained in the Corporate Trust Office of the Trustee
and in any other office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company or the Guarantor shall provide for the registration of
Registered Securities and of transfers of Registered Securities. The Security Register shall be in
written form or any other form capable of being converted into written form within a reasonable
time. At all reasonable times, the Security Register shall be open to inspection by the Trustee.
The Trustee is hereby initially appointed as security registrar (the “Security Registrar”) for the
purpose of registering Registered Securities and transfers of Registered Securities as herein
provided.




          Upon surrender for registration of transfer of any Registered Security of any series at the
office or agency in a Place of Payment for that series, the Company shall execute, and the
Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered











 



32



Securities of the
same series, of any authorized denominations and of a like aggregate principal amount and tenor.




          At the option of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Guarantor shall execute the Guarantee on, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of Securities as contemplated by Section 301,
Bearer Securities may not be issued in exchange for Registered Securities.




          If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers’ Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, and the Trustee if there
is furnished to them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security 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 1002, 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. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at
any such office or agency in a permitted exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this Indenture.




          Whenever any Securities are so surrendered for exchange, the Company shall execute, and the
Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee










 



33



shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.




          Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301,
any permanent global Security shall be exchangeable only as provided in this paragraph. If any
beneficial owner of an interest in a permanent global Security is entitled to exchange such
interest for Securities of such series and of like tenor and principal amount of another authorized
form and denomination, as specified as contemplated by Section 301 and provided that any applicable
notice provided in the permanent global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which such interest may be so exchanged,
the Company shall deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner’s interest in such permanent global Security,
executed by the Company and the Guarantor. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary
or such other depositary as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in
part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and
as Registered Securities, as specified as contemplated by Section 301, shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by
the beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any selection of Securities to
be redeemed and ending on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and provided, further, that
no Bearer Security delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may
be, in respect of such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the provisions of this
Indenture.




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





     (1) Each global Registered Security authenticated under this Indenture shall be
registered in the name of the depositary designated for such global Registered Security or a
nominee thereof and delivered to such depositary or a nominee thereof or custodian









 



34



therefor,
and each such global Registered Security shall constitute a single Security for all purposes
of this Indenture.




     (2) Notwithstanding any other provision in this Indenture, no global Registered
Security may be exchanged for Securities registered, and no transfer of a global Registered
Security in whole or in part may be registered, in the name of any Person other than the
depositary for such global Registered Security or a nominee thereof unless (A) such
depositary (i) has notified the Company that it is unwilling or unable to continue as
depositary for such global Registered Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act, and the Company does not appoint another institution to
act as depositary within 120 days after the date of the notice described in clause (i) or
the cessation described in clause (ii), as the case may be, (B) the Company notifies the
Trustee that the Company desires to terminate such global Registered Security, (C) there
shall have occurred and be continuing an Event of Default with respect to such global
Registered Security or (D) there shall exist such other circumstances, if any, as have been
specified for this purpose as contemplated by Section 301.




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




     (4) Every Security authenticated and delivered upon registration or transfer of, or in
exchange for or in lieu of, a global Registered Security or any portion thereof, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated
and delivered in the form of, and shall be a global Registered Security, unless such
Security is registered in the name of a Person other than the depositary for such global
Registered Security or a nominee thereof.



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




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




          No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company or the Guarantor, as the case may be, may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection with any registration
of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or
1305 not involving any transfer.

















 





35





          The Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the selection for redemption of Securities of that series under Section 1103 or 1203 and
ending at the close of business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any
Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor; provided that such Registered Security
shall be simultaneously surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of the Holder, except
the portion, if any, of such Security not to be so repaid.




          Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not
taken by Euroclear, Clearstream or the Depositary.




          SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.




          If any mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company, the Guarantor or the Trustee to save each of them or any agent of each of
them harmless, the Company shall execute, the Guarantor shall execute the Guarantee noted or
endorsed thereon, and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.




          If there shall be delivered to the Company, the Guarantor and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such
security or indemnity as may be required by them to save each of them and any agent of each of them
harmless, then, in the absence of notice to the Company, the Guarantor or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company shall execute, the
Guarantor shall execute the Guarantee noted or endorsed thereon, and upon Company Order or a
Guarantor Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon
appertains.




          Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, with coupons










 



36

corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or
stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining
thereto.




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




          Every new Security of any series with its coupons, if any, issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security or in exchange for a Security to which a
mutilated, destroyed, lost or stolen coupon appertains, and the Guarantee thereon, shall constitute
an original additional contractual obligation of the Company and the Guarantor, whether or not the
mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, and the Guarantees duly issued hereunder.




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




          SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset.




          (a) Unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest, if any, on any Registered Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of
interest, if any, on any Registered Security may at the Company’s option be paid by (i) mailing a
check for such interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 309, to the address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by such Person.




          Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any
series, in the case of a Bearer Security, payment of interest, if any, may be made, upon
presentation and surrender of the coupon appertaining thereto in respect of such payment. Such
payment may be made by transfer to an account located outside the United States maintained by the
Person entitled thereto pursuant to Section 309.










 



37


          Unless otherwise provided as contemplated by Section 301, every permanent Security of any
series that is issued in global form will provide that interest, if any, payable on any Interest
Payment Date will be paid upon receipt of funds by the Trustee to each of (i) the Depositary and/or
(ii) Euroclear and/or Clearstream with respect to that portion of such permanent Security of any
series that is issued in global form held for its account by the Common Depositary, as the case may
be, for the purpose of permitting each of the Depositary and/or Euroclear and Clearstream, as the
case may be, to credit the interest, if any, received by it in respect of such permanent Security
of any series issued in global form, to the accounts of the beneficial owners thereof.




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





     (1) The Company or the Guarantor may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following manner. The
Company or the Guarantor shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company or the Guarantor, as the case may be,
shall deposit with the Trustee an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) 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 on or prior
to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company and the
Guarantor, as the case may be, of such Special Record Date and, in the name and at the
expense of the Company or the Guarantor, as the case may be, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor to be given
in the manner provided in Section 106, 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 given, such Defaulted Interest shall be paid to the Persons in whose
name the Registered Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).









 



38



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



          (b) The provisions of this Section 307(b) may be made applicable to any series of Securities
pursuant to Section 301 (with such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may be reset by the
Company or the Guarantor, as the case may be, on the date or dates specified on the face of such
Security (each an “Optional Reset Date”). The Company or the Guarantor, as the case may be, may
exercise such option with respect to such Security by notifying the Trustee of such exercise at
least 50 but not more than 60 days prior to an Optional Reset Date for such Note. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for
in Section 106, to the Holder of any such Security a notice (the “Reset Notice”) indicating whether
the Company or the Guarantor, as the case may be, has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset Date to the next
Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a “Subsequent Interest Period”), including the date or dates on
which or the period or periods during which and the price or prices at which such redemption may
occur during the Subsequent Interest Period.




          Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the
Company or the Guarantor, as the case may be, may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable) provided for in
the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate
such interest rate, if applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by
causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher
interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to which the interest
rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is
reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not
tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the
next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread
multiplier, if applicable).




          The Holder of any such Security will have the option to elect repayment by the Company of the
principal of such Security on each Optional Reset Date at a price equal to the principal amount
thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or










 



39

notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset
Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset
Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.




          Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.




          SECTION 308. Optional Extension of Stated Maturity.




          The provisions of this Section 308 may be made applicable to any series of Securities pursuant
to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to
such Section 301). The Stated Maturity of any Security of such series may be extended at the
option of the Company or the Guarantor for the period or periods specified on the face of such
Security (each an “Extension Period”) up to but not beyond the date (the “Final Maturity”) set
forth on the face of such Security. The Company or the Guarantor may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 60
days prior to the Stated Maturity of such Security in effect prior to the exercise of such option
(the “Original Stated Maturity”). If the Company or the Guarantor exercises such option, the
Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security
not later than 40 days prior to the Original Stated Maturity a notice to be prepared by the Company
(the “Extension Notice”) indicating (i) the election of the Company or the Guarantor to extend the
Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such Extension Period.
Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall
be extended automatically and, except as modified by the Extension Notice and as described in the
next paragraph, such Security will have the same terms as prior to the transmittal of such
Extension Notice.




          Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of
such Security, the Company or the Guarantor may, at its option, revoke the interest rate provided
for in the Extension Notice and establish a higher interest rate for the Extension Period by
causing the Trustee to transmit, not later than 15 days before the Original Stated Maturity of such
Security in the manner provided for in Section 106, notice of such higher interest rate to the
Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which
the Stated Maturity is extended will bear such higher interest rate.




          If the Company or the Guarantor extends the Maturity of any Security, the Holder will have the
option to elect repayment of such Security by the Company on the Original Stated Maturity at a
price equal to the principal amount thereof, plus interest accrued to such date. In order to
obtain repayment on the Original Stated Maturity once the Company or the Guarantor has extended the
Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment
at the option of Holders, except that the period for delivery or notification to the Trustee shall
be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if
the Holder has tendered any Security for repayment pursuant










 



40

to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for
repayment until the close of business on the tenth day before the Original Stated Maturity.




          SECTION 309. Persons Deemed Owners.




          Prior to due presentment of a Registered Security for registration of transfer, the Company,
the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the
Person in whose name such Registered Security is registered as the owner of such Registered
Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Guarantor, the Trustee or any
agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary.




          Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such
Security or coupon for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the
Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall
be affected by notice to the contrary.




          None of the Company, the Guarantor, the Trustee, any Paying Agent or the Security 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 Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.




          Notwithstanding the foregoing, with respect to any global Security, nothing herein shall
prevent the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the
Trustee, from giving effect to any written certification, proxy or other authorization furnished by
any depositary, as a Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its nominee) as Holder of
such global Security.




          SECTION 310. Cancellation.




          All Securities and coupons surrendered for payment, redemption, repayment at the option of the
Holder, registration of transfer or exchange or for credit against any current or future sinking
fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities and coupons so delivered to the Trustee shall be promptly cancelled by it.
The Company or the Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company or the Guarantor may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which
the Company or the Guarantor has not issued and sold,










 



41

and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company or
the Guarantor shall so acquire any of the Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures and, upon written request,
certification of their disposal delivered to the Company, unless by a Company Order or Guarantor
Order the Company or the Guarantor shall direct that cancelled Securities be returned to it.




          SECTION 311. Computation of Interest.




          Except as otherwise specified as contemplated by Section 301 with respect to any Securities,
interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.




          SECTION 312. Currency and Manner of Payments in Respect of Securities.




          (a) Unless otherwise specified with respect to any Securities pursuant to Section 301, with
respect to Registered Securities of any series not permitting the election provided for in
paragraph (b) below or the Holders of which have not made the election provided for in paragraph
(b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or
Bearer Security of such series will be made in the Currency in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this Section 312 may be
modified or superseded with respect to any Securities pursuant to Section 301.




          (b) It may be provided pursuant to Section 301 with respect to Registered Securities of any
series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive
payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in
any of the Currencies which may be designated for such election by delivering to the Trustee a
written election with signature guarantees and in the applicable form established pursuant to
Section 301, not later than the close of business on the Election Date immediately preceding the
applicable payment date. Any Holder of any such Registered Security who shall not have delivered
any such election to the Trustee not later than the close of business on the applicable Election
Date will be paid the amount due on the applicable payment date in the relevant Currency as
provided in Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.




          (c) Unless otherwise specified pursuant to Section 301, if the election referred to in
paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise specified
pursuant to Section 301, not later than the fourth Business Day after the Election Date for each
payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company and the Guarantor a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of principal of










 



42

(and premium, if any) and interest, if any, on the Registered Securities to be paid on such
payment date, specifying the amounts in such Currency so payable in respect of the Registered
Securities as to which the Holders of Registered Securities of such series shall have elected to be
paid in another Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at least one Holder has
made such election, then, unless otherwise specified pursuant to Section 301, on the second
Business Day preceding such payment date the Company and the Guarantor will deliver to the Trustee
for such series of Registered Securities an Exchange Rate Officers’ Certificate in respect of the
Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company or the Guarantor on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the “Valuation Date”) immediately preceding each payment date,
and such determination shall be conclusive and binding for all purposes, absent manifest error.




          (d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the
Securities are denominated or payable other than pursuant to an election provided for pursuant to
paragraph (b) above, then with respect to each date for the payment of principal of (and premium,
if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign Currency was used (the “Conversion
Date”), the Dollar shall be the Currency of payment for use on each such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar amount to be paid by the Company or the
Guarantor to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities
with respect to such payment date shall be, in the case of a Foreign Currency other than a currency
unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar
Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.




          (e) Unless otherwise specified pursuant to Section 301, if the Holder of a Registered Security
denominated in any Currency shall have elected to be paid in another Currency as provided in
paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been made in the absence
of such election; and if a Conversion Event occurs with respect to the Currency in which payment
would have been made in the absence of such election, such Holder shall receive payment in Dollars
as provided in paragraph (d) above.




          (f) The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate
Agent and shall be obtained for each subsequent payment date by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.




          (g) The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate
Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount obtained
by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each payment.










 



43


          (h) For purposes of this Section 312 the following terms shall have the following meanings:





     A “Component Currency” shall mean any Currency which, on the Conversion Date, was a
component currency of the relevant currency unit, including, but not limited to, the euro.




     A “Specified Amount” of a Component Currency shall mean the number of units of such
Component Currency or fractions thereof which were represented in the relevant currency
unit, including, but not limited to, the euro, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified Amounts of such
Component Currencies shall be replaced by an amount in such single Currency equal to the sum
of the respective Specified Amounts of such consolidated Component Currencies expressed in
such single Currency, and such amount shall thereafter be a Specified Amount and such single
Currency shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more Currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or more Currencies, having
an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such
replacement equal to the Dollar Equivalent value of the Specified Amount of such former
Component Currency at the Market Exchange Rate immediately before such division and such
amounts shall thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant currency unit,
including, but not limited to, the euro, a Conversion Event (other than any event referred
to above in this definition of “Specified Amount”) occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in
effect on the Conversion Date of such Component Currency.




     “Election Date” shall mean the date for any series of Registered Securities as
specified pursuant to clause (13) of Section 301 by which the written election referred to
in paragraph (b) above may be made.



          All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of
the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and
changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in
the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Guarantor, the Trustee and all Holders of such Securities denominated or payable in
the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company,
the Guarantor and the Trustee of any such decision or determination.













 



44




          In the event that the Company or the Guarantor determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company or the Guarantor, as applicable,
will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the
Holder of any Registered Security that has made the election provided for in Section 312(b))
specifying the Conversion Date. In the event the Company or the Guarantor so determines that a
Conversion Event has occurred with respect to the euro or any other currency unit in which
Securities are denominated or payable, the Company or the Guarantor, as applicable, will
immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event the Company or the Guarantor determines in good
faith that any subsequent change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company or the Guarantor, as applicable, will similarly
give written notice to the Trustee and the Exchange Rate Agent.




          The Trustee shall be fully justified and protected in relying and acting upon information
received by it from the Company, the Guarantor and the Exchange Rate Agent and shall not otherwise
have any duty or obligation to determine the accuracy or validity of such information independent
of the Company, the Guarantor or the Exchange Rate Agent.




          SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.




          (a) Unless otherwise specified pursuant to Section 301, if and so long as the Securities of
any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make
the necessary foreign exchange determinations at the time and in the manner specified pursuant to
Section 301 for the purpose of determining the applicable rate of exchange and, if applicable, for
the purpose of converting the issued Currency into the applicable payment Currency for the payment
of principal (and premium, if any) and interest, if any, pursuant to Section 312.




          (b) No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate
Agent pursuant to this Section shall become effective until the acceptance of appointment by the
successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company, the
Guarantor and the Trustee.




          (c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the
Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of
that or those series (it being understood that any such successor Exchange Rate Agent may be
appointed with respect to the Securities of one or more or all of










 



45

such series and that, unless otherwise specified pursuant to Section 301, at any time there
shall only be one Exchange Rate Agent with respect to the Securities of any particular series that
are originally issued by the Company on the same date and that are initially denominated and/or
payable in the same Currency).




          SECTION 314. CUSIP Numbers.




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




ARTICLE FOUR




SATISFACTION AND DISCHARGE



          SECTION 401. Satisfaction and Discharge of Indenture.




          This Indenture shall upon Company Request or Guarantor Request cease to be of further effect
with respect to any series of Securities specified in such Company Request or Guarantor Request
(except as to any surviving rights of registration of transfer or exchange of Securities of such
series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts
as contemplated by Section 1005) and the Trustee, upon receipt of a Company Order or Guarantor
Order, and at the expense of the Company and the Guarantor, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series, when





     (1) either




     (A) all Securities of such series theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been waived as provided
in Section 305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust with the Trustee or any Paying
Agent or segregated and held in trust by the Company or the Guarantor and thereafter
repaid to the Company or the Guarantor, as the case may be, or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or









 



46



     (B) all Securities of such series and, in the case of (i) or (ii) below, any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation




     (i) have become due and payable, or




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




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




and the Company or the Guarantor, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the Currency in which the Securities of such
series are payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest and Additional
Amounts, if any, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the case
may be;




     (2) the Company or the Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company and the Guarantor; and




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



          Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company and the Guarantor to the Trustee and any predecessor Trustee under Section 606, the
obligations of the Company and the Guarantor to any Authenticating Agent under Section 611 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402, any rights to Additional Amounts
pursuant to Section 1005 and the last paragraph of Section 1003 shall survive.




          SECTION 402. Application of Trust Money.




          Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own, or authorizing the Guarantor to
act as, Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest, if any, for whose payment










 



47

such money has been deposited with or received by the Trustee; but such money need not be
segregated from other funds except to the extent required by law.




ARTICLE FIVE




REMEDIES



          SECTION 501. Events of Default.




          “Event of Default”, wherever used herein with respect to Securities of any particular series,
means any one of the following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any administrative or
governmental body):





     (1) default in the payment of any interest or any Additional Amounts upon on any
Security of that series, or of any related coupon appertaining thereto, when such interest,
Additional Amount or coupon becomes due and payable, and continuance of such default for a
period of 30 days; or








     (2) default in the payment of the principal of (or premium, if any, on) any Security of
that series when it becomes due and payable at its Maturity; or









     (3)
 failure to pay when due, after the expiration of any applicable
grace period, any portion of the principal  of, or involuntary
acceleration of the maturity (which acceleration is not rescinded or
annulled within 10 days) of, Debt of the Company or the Guarantor
having an aggregate principal amount outstanding in excess of the
greater of (i) $100,000,000 and (ii) 5% of Consolidated Net Tangible
Assets of the Guarantor; or



     (4) default in the deposit of any sinking fund payment, when and as due by the terms of
the Securities of that series and Article Twelve; or




     (5) default in the performance, or breach, of any covenant or agreement of the Company
or the Guarantor in this Indenture with respect to any Security of that series or, as the
case may require, the Guarantees (other than a covenant or agreement a default in whose
performance or whose breach is specifically dealt with elsewhere in this Section) and
continuance of such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company and the Guarantor by the Trustee, or to the
Company, the Guarantor and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or




     (6) the Company or the Guarantor pursuant to or within the meaning of any Bankruptcy
Law:



          (a) commences a voluntary case,




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




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




          (d) makes a general assignment for the benefit of its creditors; or










 



48



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



          (a) is for relief against the Company or the Guarantor in an involuntary case,




          (b) appoints a Custodian of the Company or the Guarantor or for all or substantially all of
either of their respective properties, or




          (c) orders the liquidation of the Company or the Guarantor,




          and, in the case of (a), (b) or (c), the order or decree or other measures remain unstayed and
in effect for 90 days; or





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


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




          SECTION 502. Acceleration of Maturity; Rescission and Annulment.




          If an Event of Default described in Section 501 with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of that series may declare
the principal (or, if the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately, by a notice in writing
to the Company and the Guarantor (and to the Trustee if given by Holders), and upon any such
declaration such principal (or specified portion thereof) shall become immediately due and payable.




          At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company, the Guarantor and the
Trustee, may rescind and annul such declaration and its consequences if:





     (1) the Company or the Guarantor has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 312(b), 312(d) and 312(e)):




     (A) all overdue interest and Additional Amounts, if any, on all Outstanding
Securities of that series (or of all series, as the case may be) and any related
coupons,









 



49



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




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




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




     (2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of (or premium, if any) or interest on Securities of that
series which have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.


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




          SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.




          The Company and the Guarantor covenant that if





     (1) default is made in the payment of any installment of interest and Additional
Amounts on any Security of any series and any related coupon when such interest becomes due
and payable and such default continues for a period of 30 days, or




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


then the Company or the Guarantor will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of Securities of such series and coupons, the whole amount then due and
payable on such Securities and coupons for principal (and premium, if any) and interest, if any,
with interest on any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.




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













 



50




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




          SECTION 504. Trustee May File Proofs of Claim.




          In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company, the Guarantor or any other obligor upon the Securities or the property of the Company, the
Guarantor or of such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities 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 on the
Company or the Guarantor for the payment of overdue principal, premium, if any, or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise:





     (i) to file and prove a claim for the whole amount of principal (or in the case of
Original Issue Discount Securities or Indexed Securities, such portion of the principal as
may be specified in the terms thereof) (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and




     (ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of Securities of such series
and coupons to make such payments to the Trustee, and in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other amounts due to the Trustee or any
predecessor Trustee under Section 606.




          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a
security or coupon in any such proceeding.




          SECTION 505. Trustee May Enforce Claims Without Possession of Securities.




          All rights of action and claims under this Indenture or the Securities or coupons or the
Guarantees may be prosecuted and enforced by the Trustee without the possession of any of










 



51

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




          SECTION 506. Application of Money Collected.




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





     First: To the payment of all amounts due to the Trustee and any predecessor
Trustee under Section 606;




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




     Third: To the payment of the remainder, if any, to the Company or any other
Persons entitled thereto.



          SECTION 507. Limitation on Suits.




          No Holder of any Security of any series or any related coupon shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:





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




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




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




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









 



52



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


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




          SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.




          Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon
shall have the right, which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Section 307) interest, if any, on such Security or payment of
such coupon, as the case may be, on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent of such Holder.




          SECTION 509. Restoration of Rights and Remedies.




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




          SECTION 510. Rights and Remedies Cumulative.




          Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons
is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.




          SECTION 511. Delay or Omission Not Waiver.




          No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any
right or remedy accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be










 



53

exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.




          SECTION 512. Control by Holders.




          With respect to the Securities of any series, the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the Securities of such
series, provided that:





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




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




     (3) the Trustee need not take any action which might involve it in personal liability
or be unjustly prejudicial to the Holders of Securities of such series not consenting.



          SECTION 513. Waiver of Past Defaults.




          The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its consequences, except a
default





     (1) in respect of the payment of the principal of (or premium, if any) or interest, if
any, on any Security of such series or any related coupons, or




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



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




          SECTION 514. Waiver of Stay or Extension Laws.




          Each of the Company and the Guarantor covenants (to the extent that each may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that each may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,








 



54



delay or impede the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.




          SECTION 515. Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorney’s
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 515 does not apply to a
suit by the Trustee, or a suit by Holders of more than 10% in principal amount of the then
Outstanding Securities.




          SECTION 516. Statement by Officers as to Default.




          The Company shall deliver to the Trustee, as soon as possible after the Company becomes aware
of the occurrence of any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of
such Event of Default or default and the action which the Company proposes to take with respect
thereto.




ARTICLE SIX




THE TRUSTEE



          SECTION 601. Notice of Defaults.




          Within 90 days after the occurrence of any Default hereunder with respect to the Securities of
any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest, if any, on any Security of such
series or, in the payment of any sinking or purchase fund installment with respect to 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 trust committee of directors and/or Responsible Officers
of the Trustee in good faith determine that the withholding of such notice is in the interest of
the Holders of Securities and coupons of such series; and provided further that in
the case of any Default of the character specified in
Section 501(5) with respect to Securities and
coupons of such series, no such notice to Holders shall be given until at least 60 days after the
occurrence thereof.




          SECTION 602. Certain Rights of Trustee.




     (A) Subject to the provisions of TIA Sections 315(a) through 315(d):




     (1) the Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,









 



55



report, notice, request, direction, consent, order, bond, debenture, note, coupon or
other paper or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;




     (2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order or of the Guarantor mentioned herein shall
be sufficiently evidenced by a Guarantor Request or Guarantor Order (in each case, other
than delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;




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




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




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




     (6) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company and the Guarantor, personally or by agent or attorney and shall
incur no liability or additional liability of any kind of reason of such inquiry or
investigation;




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









 



56



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




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




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




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




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


     (B) (1) Except during the continuance of an Event of Default,





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




          (b) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by 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 need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).




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









 



57



     (3) 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 Subsection (1) of
this Section;




          (b) the Trustee shall not be liable for any 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;




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




     (4) 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.



          The Trustee shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it.




          SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities.




          The recitals contained herein and in the Securities, except for the Trustee’s certificates of
authentication, and in any coupons shall be taken as the statements of the Company or the
Guarantor, as the case may be, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or coupons or the Guarantees, except that the
Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the proceeds thereof.




          SECTION 604. May Hold Securities.




          The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company or the Guarantor with the same












 



58



rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.




          SECTION 605. Money Held in Trust.




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




          SECTION 606. Compensation and Reimbursement.




          The Company agrees:





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




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




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



          In the event the Company fails to make any such payments or indemnify the Trustee the
Guarantor hereby agrees to make such payments and/or indemnify the Trustee on its behalf. As
security for the performance of the obligations of the Company and the Guarantor under this
Section, the Trustee shall have a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities or any coupons.




          When the Trustee incurs expenses or renders services after the occurrence of an Event of
Default relating to insolvency or bankruptcy, the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for such services are intended to constitute expenses
of administration under any applicable Federal or state bankruptcy, insolvency or other similar
law.




          The provisions of this Section 606 shall survive the satisfaction, discharge and termination
of this Indenture or the earlier resignation or removal of the Trustee.













 



59




          SECTION 607. Corporate Trustee Required; Eligibility.




          (a) There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee
under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of U.S. Federal, State, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.




          SECTION 608. Resignation and Removal; Appointment of Successor.




          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 609.




          (b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company and the Guarantor.




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




          (d) If at any time:





     (1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company, the Guarantor or by any Holder who has been a bona
fide Holder of a Security for at least six months, or




     (2) the Trustee shall cease to be eligible under Section 607(a) and shall fail to
resign after written request therefor by the Company, the Guarantor or by any Holder who has
been a bona fide Holder of a Security for at least six months, or




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


then, in any such case, (i) the Company or the Guarantor, by or pursuant to a Board Resolution, may
remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject
to TIA Section 315(e), any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.

















 




60

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




          (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series in the manner provided for notices to the Holders of Securities of
such series in Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust Office.




          SECTION 609. Acceptance of Appointment by Successor.




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




          (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the Guarantor, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to












 



61



which the appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company, the Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor Trustee relates.
Whenever there is a successor Trustee with respect to one or more (but less than all) series of
securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the
meanings specified in the provisos to the respective definitions of those terms in Section 101
which contemplate such situation.




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




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




          SECTION 610. Merger, Conversion, Consolidation or Succession to Business.




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










 



62



Indenture provides for the certificate of authentication of the Trustee; provided,
however, that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.




          SECTION 611. Appointment of Authenticating Agent.




          At any time when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by
an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such
instrument shall be promptly furnished to the Company and the Guarantor. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and the Guarantor and, except as may otherwise be provided
pursuant to Section 301, shall at all times be a bank or trust company or corporation organized and
doing business and in good standing under the laws of the United States of America, any state
thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.




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




          An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company and the Guarantor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the
Company and the Guarantor. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and the Guarantor and shall










 



63



give written notice of such appointment to
all Holders of Securities of the series with respect to which such Authenticating Agent will serve,
in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.




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




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




          Dated:                                         





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



	 	 	 	 	 
	 	[NAME OF TRUSTEE],

as Trustee

 	 
	 	By  	 	 
	 	 	as Authenticating Agent 	 
	 	 	 
	 	By  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 



ARTICLE SEVEN




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY



          SECTION 701. Disclosure of Names and Addresses of Holders.




          Every Holder of Securities or coupons, by receiving and holding the same, agrees with the
Company, the Guarantor and the Trustee that none of the Company, the Guarantor or the Trustee or
any agent of them shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the
source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material pursuant to a request made
under TIA Section 312(b).




          SECTION 702. Reports by Trustee.




          Within 60 days after May 15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of
Securities, in the manner and to the extent provided in TIA Section 313(c), a brief report dated as
of May 15 if required by TIA Section 313(a).










 



64




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




          SECTION 703. Reports by the Company and the Guarantor.




          The Company and the Guarantor shall:






     (1) file with the Trustee, within 15 days after the Company or the Guarantor, as the
case may be, is required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations prescribe)
which the Company or the Guarantor, as the case may be, may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company or the Guarantor, as the case may be, is not required to file
information, documents or reports pursuant to either of such Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;




     (2) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company and the Guarantor, as the case may be,
with the conditions and covenants of this Indenture as may be required from time to time by
such rules and regulations; and




     (3) transmit to all Holders, in the manner and to the extent provided in TIA Section
313(c), within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company or the
Guarantor pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.



          Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s or the Guarantor’s compliance with any of its covenants hereunder.











 



65




ARTICLE EIGHT




CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER



          SECTION 801. Company or Guarantor May Consolidate, etc., Only on Certain Terms.




          Neither the Company nor the Guarantor shall consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an entirety to any
Person, unless:





     (1) either the Company or the Guarantor shall be the continuing corporation, or the
corporation formed by such consolidation or into which the Company or the Guarantor is
merged or the Person which acquires by conveyance or transfer the properties and assets of
the Company or the Guarantor substantially as an entirety shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee acting reasonably, in the case of the Company, the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all the Securities and
the performance of every covenant of this Indenture on the part of the Company to be
performed or observed, and, in the case of the Guarantor, the due and punctual performance
of the Guarantees and the performance or observance of every covenant of this Indenture on
the part of the Guarantor to be performed or observed;




     (2) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing; and




     (3) the Company or such Person shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been complied
with.



          This Section shall only apply to a merger or consolidation in which the Company or the
Guarantor, as the case may be, is not the surviving corporation and to conveyances and transfers by
the Company or the Guarantor, as the case may be, as transferor.




          SECTION 802. Successor Person Substituted.




          Upon any consolidation or merger, or any conveyance or transfer of the properties and assets
of the Company or the Guarantor, as the case may be substantially as an entirety to any Person in
accordance with Section 801, the successor Person formed by such consolidation or into which the
Company or the Guarantor is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor
under this Indenture with the same effect as if such successor Person had been named as the Company
or the Guarantor, as the case may be, herein; and in the event of any such conveyance or transfer,
the Company or the Guarantor, as the case may be, shall be









 



66


discharged from all obligations and
covenants under this Indenture and the Securities and the coupons, or the Guarantees, as the case
may be, and may be dissolved and liquidated.




          SECTION 803. Assumption by Guarantor.




          The Guarantor, or any of its Subsidiaries, may directly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, any premium and interest on and any Additional Amounts with
respect to all the Securities and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed. Upon any such assumption, the Guarantor or such
Subsidiary shall succeed to, and be substituted for and may exercise every right and power of, the
Company under this Indenture with the same effect as if the Guarantor or such Subsidiary had been
named as the Company herein, and the Company shall be released from all obligations and covenants
with respect to the Securities. No such assumption shall be permitted unless the Guarantor has
delivered to the Trustee (i) an Officers’ Certificate and an Opinion of Counsel, each stating that
such assumption and supplemental indenture comply with this Section 803, and that all conditions
precedent herein provided for relating to such transaction have been complied with and that, in the
event of assumption by a Subsidiary, the Guarantee and all other covenants of the Guarantor herein
remain in full force and effect and (ii) an opinion of independent counsel that the Holders of
Securities or related coupons (assuming such Holders are only taxed as residents of the United
States) shall have no materially adverse United States federal tax consequences as a result of such
assumption, and that, if any Securities are then listed on the New York Stock Exchange, that such
Securities shall not be delisted as a result of such assumption.




ARTICLE NINE




SUPPLEMENTAL INDENTURES



          SECTION 901. Supplemental Indentures Without Consent of Holders.




          Without the consent of any Holders, the Company and the Guarantor, when authorized by or
pursuant to a Board Resolution of the Company and the Guarantor, as applicable, and the Trustee, at
any time and from time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee acting reasonably, for any of the following purposes:





     (1) to evidence the succession of another Person to the Company or the Guarantor and
the assumption by any such successor of the covenants of the Company or the Guarantor
contained herein and in the Securities; or




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









 



67



     (3) to add any additional Events of Default (and if such Events of Default are to be
for the benefit of less than all series of Securities, stating that such Events of Default
are being included solely for the benefit of such series); provided,
however, that in respect of any such additional Events of Default 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 that or those series of Securities to which such additional Events of Default
apply to waive such default; or




     (4) to add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any restrictions on
the payment of principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other authorized denominations
or to permit or facilitate the issuance of Securities in uncertificated form;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material respect; or




     (5) to change or eliminate any of the provisions of this Indenture; provided
that any such change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or




     (6) to secure the Securities or the Guarantees pursuant to the requirements of Section
1006 or otherwise; or




     (7) to establish the form or terms of Securities of any series and any related coupons
or Guarantees as permitted by Sections 201 and 301; or




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




     (9) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture; provided any such action shall
not adversely affect the interests of the Holders of Securities of any series and any
related coupons in any material respect; or




     (10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Sections 401, 1402 and 1403; provided that any such action shall









 



68

not
adversely affect the interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect; or




     (11) to effect the assumption by the Guarantor or a Subsidiary thereof pursuant to
Section 803.



          SECTION 902. Supplemental Indentures with Consent of Holders.




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





     (1) change the Stated Maturity of the principal of (or premium, if any) (it being
understood that any extension of the Stated Maturity of any Security pursuant to Section 308
will not require a supplemental indenture or the consent of the Holder of each Outstanding
Security of such series) or any installment of interest on any Security of such series, or
reduce the principal amount thereof (or premium, if any) or the rate of interest, if any,
thereon, or change any obligation of the Company or the Guarantor to pay Additional Amounts
contemplated by Section 1005 (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original Issue Discount
Security of such series that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or adversely affect any right of repayment at the option of any
Holder of any Security of such series, or change any Place
of Payment where, or the Currency in which, any Security of such series or any premium
or interest thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as
the case may be), or adversely affect any right to convert or exchange any Security as may
be provided pursuant to Section 301 herein, or




     (2) reduce the percentage in principal amount of the Outstanding Securities of such
series required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this Indenture which affect
such series or certain defaults applicable to such series hereunder and their consequences
provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting with respect to Securities of such series, or




     (3) modify any of the provisions of this Section, Section 513, Section 1008 and
Sections 1503 to 1506, except to increase any such percentage or to provide that









 



69

certain
other provisions of this Indenture which affect such series cannot be modified or waived
without the consent of the Holder of each Outstanding Security of such series.




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




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




          SECTION 903. Execution of Supplemental Indentures.




          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall given, and shall (subject to Section 315 of the Trust Indenture Act) be fully
protected in relying upon, an Opinion of Counsel and an Officers’ Certificate stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.




          SECTION 904. Effect of Supplemental Indentures.




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




          SECTION 905. Conformity with Trust Indenture Act.




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




          SECTION 906. Reference in Securities to Supplemental Indentures.




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










 



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ARTICLE TEN




COVENANTS



          SECTION 1001. Payment of Principal, Premium, if any, and Interest.




          The Company covenants and agrees for the benefit of the Holders of each series of Securities
and any related coupons that it will duly and punctually pay the principal of (and premium, if any)
and interest, if any, by 2:00 p.m. New York time on the day prior to the date such principal of
(and premium, if any) and interest is due on the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified with respect to Securities of any series pursuant to Section 301, at the option
of the Company, all payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such Security. Unless
otherwise specified as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.




          SECTION 1002. Maintenance of Office or Agency.




          If the Securities of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for any series of Securities an office or agency where Securities
of that series may be presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of that series that are
exchangeable may be surrendered for exchange, as applicable and where notices and demands to or
upon the Company or the Guarantor, as the case may be, in respect of the Securities of that series
and this Indenture may be served.




          If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) in
The City of New York, an office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are exchangeable may be surrendered for exchange, as
applicable, where notices and demands to or upon the Company or the Guarantor, as the case may be,
in respect of the Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that, if the Securities
of that series are listed on any stock exchange located outside the United States and such stock
exchange shall so require, the Company or the Guarantor, as the case may be, will maintain a Paying
Agent for the Securities of that series in any required city located outside the United States so
long as the Securities of that series are listed on such exchange, and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located outside the United
States, an office or agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that









 



71


series may be surrendered for exchange, where
Securities of that series that are exchangeable may be surrendered for exchange, as applicable, and
where notices and demands to or upon the Company or the Guarantor, as the case may be, in respect
of the Securities of that series and this Indenture may be served.




          The Company will give prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, except that Bearer Securities of any series and the related coupons may be
presented and surrendered for payment or exchange at any Paying Agent for such series located
outside the United States, and the Company hereby appoints the same as its agents to receive such
respective presentations, surrenders, notices and demands.




          If Securities of a series are issuable only as Registered Securities, the Guarantor shall
maintain in each Place of Payment for any series of Securities an office or agency where Securities
of that series may be presented or surrendered for payment pursuant to any Guarantee and where
notices and demands to or upon the Guarantor in respect of any Guarantee and this Indenture may be
served. If Securities of a series are issuable as Bearer Securities, the Guarantor will maintain
(A) in the Borough of Manhattan, The City of New York, an office or agency
where any Registered Securities of that series may be presented or surrendered for payment
pursuant to any Guarantee and where notices and demands to or upon the Guarantor in respect of any
Guarantee and this Indenture may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment pursuant to any Guarantee in the circumstances
described in the following paragraph (and not otherwise) and (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series and related coupons may be presented
and surrendered for payment pursuant to any Guarantee; provided, however, that if the Securities of
that series are listed on any stock exchange located outside the United States and such stock
exchange shall so require, the Guarantor will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange. The Guarantor will give prompt written
notice to the Trustee of the location, and any change in the location, of each such office or
agency. If at any time the Guarantor 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, except that Bearer
Securities of that series and the related coupons may be presented and surrendered for payment or
exchange at any Paying Agent for such series located outside the United States, and the Guarantor
hereby appoints the same as its agent to receive such respective presentations, surrenders, notices
and demands, and the Guarantor hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.




          Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment
of principal, premium or interest on Bearer Securities by or on behalf of the Guarantor shall be
made at any office or agency of the Company or the Guarantor, as the case may be, in the United
States or by check mailed to any address in the United States or by transfer









 



72


to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are payable in Dollars, payment of principal of (and premium, if any)
and interest, if any, by or on behalf of the Guarantor on any Bearer Security shall be made at the
office of the Company’s or the Guarantor’s, as the case may be, Paying Agent in The City of London,
if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained for such purpose
by the Company or the Guarantor, as the case may be, in accordance with this Indenture, is illegal
or effectively precluded by exchange controls or other similar restrictions.




          The Company or the Guarantor may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or surrendered for any or all
such purposes, and may from time to time rescind any such designation; provided,
however, that no such designation or rescission shall in any manner relieve the Company or
the Guarantor of its obligation to maintain an office or agency in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company or the Guarantor will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency. Unless otherwise specified with respect to any
Securities as contemplated by Section 301 with respect to a series of Securities, the Company and
the Guarantor each hereby designate as a Place of Payment for each series of Securities the office
or agency of the Company or the Guarantor, as the case may be, in the Borough of Manhattan, The
City of New York, and initially appoint the
Trustee at its Corporate Trust Office as Paying Agent in such city and as their agent to
receive all such presentations, surrenders, notices and demands.




          Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii)
may be payable in a Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company or the Guarantor, as the case may be, will maintain
with respect to each such series of Securities, or as so required, at least one Exchange Rate
Agent.




          SECTION 1003. Money for Securities Payments to Be Held in Trust.




          If the Company shall at any time act as its own, or authorize the Guarantor to act as, Paying
Agent with respect to any series of Securities and any related coupons, it will, on or before each
due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in
the Currency in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or premium, if any) or
interest, if any, on Securities of such series so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.




          Whenever the Company shall have one or more Paying Agents for any series of Securities and any
related coupons, it will, prior to or on each due date of the principal of (or premium, if any) or
interest, if any, on any Securities of that series, deposit with a Paying Agent









 



73


a sum (in the
Currency described in the preceding paragraph) sufficient to pay the principal (or premium, if any)
or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.




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




          Except as provided in the Securities of any series, any money deposited with the Trustee or
any Paying Agent, or then held by the Company or the Guarantor, in trust for the payment of the
principal of (or premium, if any) or interest, if any, on any Security of any series, or any coupon
appertaining thereto, and remaining unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the Company on Company Request (if then held
by the Company) or, if deposited by the Guarantor, paid to the Guarantor
on Guarantor Request shall be discharged from such trust; and the Holder of such Security or
coupon shall thereafter, as an unsecured general creditor, look only to the Company and the
Guarantor for payment thereof (without interest thereon), and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company or the
Guarantor cause to be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining will be repaid to the
Company or the Guarantor, as the case may be.




          SECTION 1004. Statement as to Compliance.




          The Company and the Guarantor will each deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the Company’s or the
Guarantor’s, as the case may be, compliance with all conditions and covenants under this Indenture.
For purposes of this Section 1004, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.




          SECTION 1005. Additional Amounts.




          All payments of, or in respect of, principal of and any premium and interest on the
Securities, and all payments pursuant to any Guarantee, shall be made without withholding or
deduction for, or on account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of a Taxing Jurisdiction, unless such
taxes, duties, assessments or governmental charges are required by such Taxing Jurisdiction to be
withheld or deducted. In that event, the Company or the Guarantor, as applicable, will pay









 



74


such
additional amounts of, or in respect of, principal and any premium and interest (“Additional
Amounts”) as will result (after deduction of such taxes, duties, assessments or governmental
charges and any additional taxes, duties, assessments or governmental charges payable in respect of
such) in the payment to each Holder of a Security of the amounts which would have been payable in
respect of such Security or the Guarantee thereof, as the case may be, had no such withholding or
deduction been required, except that no Additional Amounts shall be so payable for or on account
of:





     (1) any tax, duty, assessment or other governmental charge imposed by any jurisdiction
other than a Taxing Jurisdiction (including the United States or any political subdivision
or taxing authority thereof or therein);




     (2) any tax, duty, assessment or other governmental charge which would not have been
imposed but for (A) the existence of any present or former connection between such Holder or
a third party on behalf of such Holder by reason of its (or between a fiduciary, settlor,
beneficiary member, shareholder or possessor of a power over such
Holder, if such Holder is an estate, trust, partnership or corporation) having some
present or former connection with a Taxing Jurisdiction (including being or having been a
citizen or resident of a Taxing Jurisdiction or being or having been engaged in a trade or
business or present therein or having or having had a permanent establishment therein, but
not including the mere holding or ownership of a debt security), or (B) the presentation of
such Security or the Guarantee thereof for payment more than 30 days after the date on which
such payment became due or was provided for, whichever is later;




     (3) any estate, inheritance, gift, sale, transfer, personal property or similar tax,
duty, assessment or other governmental charge;




     (4) any tax, duty, assessment or other governmental charge which is payable otherwise
than by withholding or deduction from payments of (or in respect of) principal of or any
premium or interest on the Securities or the Guarantee(s) thereof;




     (5) any tax, duty, assessment or other governmental charge that is imposed or withheld
by reason of the failure to comply by the Holder or the beneficial owner of a Security with
a request of the Company or the Guarantor addressed to the Holder (A) to provide information
concerning the nationality, residence or identity of the Holder or such beneficial owner or
(B) to make any declaration or other similar claim or satisfy any information or reporting
requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty,
regulation or administrative practice of the Taxing Jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other governmental charge;




     (6) any withholding or deduction that is imposed on a payment to an individual and
required to be made pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN (European Union Economic and Finance Ministers)
Counsel Meeting of 26-27 November 2000 or any law implementing or complying with or
introduced in order to conform to such Directive; or









 



75



     (7) any combination of items (1), (2), (3), (4), (5) and (6).



          Additionally, Additional Amounts shall not be paid with respect to any payment in respect of
any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial
owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner would not have been entitled to such Additional
Amounts had it been the Holder of such Security.




          Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium or interest on, or in respect of, any Security of any series (or any payments
pursuant to the Guarantee thereof) such mention shall be deemed to include mention of the payment
of Additional Amounts provided for in this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of Additional Amounts in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such express mention is
not made.




          The provisions of this Section 1005 shall apply mutatis mutandis to any withholding or
deduction for or on account of any present or future taxes, assessments or governmental charges of
whatever nature of any jurisdiction in which any successor Person to the Company or the Guarantor
is organized, or any political subdivision or taxing authority thereof or therein.




          SECTION 1006. Limitation on Liens.




          The Guarantor will not itself, and will not permit any Restricted Subsidiary to, create,
incur, issue, assume or guarantee any Capital Markets Indebtedness secured by any Lien on any
Principal Property owned by the Guarantor or any Restricted Subsidiary, or upon any shares of stock
of or Debt owed to any Restricted Subsidiary (such shares of stock or Debt of any Restricted
Subsidiary being called “Restricted Securities”), without in any such case effectively providing
that the Securities (together with, if the Guarantor shall so determine, any other Capital Markets
Indebtedness of the Guarantor or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Securities) shall be secured equally and ratably with (or prior to)
such secured Capital Markets Indebtedness, so long as such secured Capital Markets Indebtedness
shall be so secured, unless, after giving effect thereto, the aggregate principal amount of all
such secured Capital Markets Indebtedness then outstanding plus the Attributable Debt of
the Guarantor and its Restricted Subsidiaries in respect of sale and leaseback transactions (as
defined in Section 1007) involving Principal Properties entered into after the date of the first
issuance by the Company of Securities issued pursuant to this Indenture (other than sale and
leaseback transactions permitted by paragraph (b) of Section 1007) would not, with respect to a series of Securities, exceed an amount equal
to a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, of Consolidated Net Tangible Assets; provided, however, that nothing
contained in this Section shall prevent, restrict or apply to, and there shall be excluded from
secured Capital Markets Indebtedness in any computation under this Section, Capital Markets
Indebtedness secured by:










 



76





     (a) Liens on any Principal Property or Restricted Securities of the Restricted
Subsidiary or any Principal Property of the Guarantor existing as of the date of the first
issuance by the Company of Securities issued pursuant to this Indenture;




     (b) Liens on any property or securities of any corporation existing at the time such
corporation becomes a Restricted Subsidiary, or arising thereafter (i) otherwise than in
connection with the borrowing of money arranged thereafter and (ii) pursuant to contractual
commitments entered into prior to and not in contemplation of such corporation’s becoming a
Restricted Subsidiary;




     (c) Liens arising by operation of law in the ordinary course of business and securing
amounts not more than 60 days overdue;




     (d) Liens created on an undertaking or asset in favor of a governmental or
quasi-governmental (whether national, local or regional) or supra-governmental body in
respect of the financing of that undertaking or asset at a preferential rate which secures
only the payment or repayment of the financing for that undertaking or asset;




     (e) Liens created in respect of any margin or collateral delivered or otherwise
provided in connection with metal transactions;




     (f) Liens on any Principal Property or Restricted Securities of the Restricted
Subsidiary or any Principal Property of the Guarantor existing at the time of acquisition
thereof (including acquisition through merger or consolidation) or securing the payment of
all or any part of the purchase price or construction cost thereof or securing any Debt
incurred prior to, at the time of or within 12 months after, the acquisition of such
Principal Property or Restricted Securities or the completion of any such construction,
whichever is later, for the purpose of financing all or any part of the purchase price or
construction cost thereof (provided such Liens are limited to such Principal
Property or Restricted Securities, to improvements on such Principal Property and to any
other property or assets not then constituting a Principal Property or Restricted
Securities);




     (g) Liens on any Principal Property to secure all or any part of the cost of
exploration, drilling, development, operation, construction, alteration, repair, improvement
or rehabilitation, of all or any part of such Principal Property, or to secure Debt incurred
prior to, at the time of or within 12 months after, the completion of such exploration,
drilling, development, operation, construction, alteration, repair, improvement or
rehabilitation, whichever is later, for the purpose of financing all or any part of such
cost (provided such Liens are limited to such Principal Property, improvements
thereon and any other property or assets not then constituting a Principal Property);




     (h) Liens which secure Debt owing by a Restricted Subsidiary to the Guarantor or to
another Restricted Subsidiary;




     (i) Liens on any property, shares of stock, or indebtedness existing at the time of
acquisition thereof from a corporation which is consolidated with or merged into, or









 



77

substantially all of the assets of which are acquired by, the Guarantor or a Restricted
Subsidiary;




     (j) any deposit or pledge of assets (1) with any surety company or clerk of any court,
or in escrow, as collateral in connection with, or in lieu of, any bond on appeal from any
judgment or decree against the Guarantor or a Restricted Subsidiary, or in connection with
other proceedings or actions at law or in equity by or against the Guarantor or a Restricted
Subsidiary, or (2) as security for the performance of any contract or undertaking not
directly or indirectly related to the borrowing of money or the securing of indebtedness, if
made in the ordinary course of business, or (3) with any governmental agency, which deposit
or pledge is required or permitted to qualify the Guarantor or a Restricted Subsidiary to
conduct business, to maintain self-insurance, or to obtain the benefits of any law
pertaining to workers’ compensation, unemployment insurance, old age pensions, social
security, or similar matters, or (4) made in the ordinary course of business to obtain the
release of mechanics’, workmen’s, repairmen’s, warehousemen’s or similar liens, or the
release of property in the possession of a common carrier;



     (k) Liens in favor of the government bodies, or any department, agency or
instrumentality or political subdivision of such government bodies, to secure partial,
progress, advance or other payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the purchase price or
the cost of constructing or improving the property subject to such Liens and Liens given to
secure indebtedness incurred in connection with the financing of construction of pollution
control facilities;



     (l) Liens existing on property acquired by the Guarantor or a Restricted Subsidiary
through the exercise of rights arising out of defaults on receivables acquired in the
ordinary course of business;



     (m) judgment Liens, so long as the finality of such judgment is being contested in good
faith and execution thereon is stayed;



     (n) Liens for the sole purpose of extending, renewing or replacing in whole or in part
Debt secured by any Lien referred to in clauses (a) to (p), inclusive, or in this clause
(k); provided, however, that the principal amount of Debt secured thereby shall not exceed
the principal amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be limited to all or a
part of the property which secured the Lien so extended, renewed or replaced (plus
improvements on such property);



     (o) Liens for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings; landlord’s Liens on property held under lease; and
any other Liens of a nature similar to those hereinabove described in this clause (l) which
do not, in the opinion of the Guarantor, materially impair the use of such









 



78



property in the
operation of the business of the Guarantor or a Restricted Subsidiary or the value of such
property for the purposes of such business;



     (p) any transaction characterized as a sale of receivables (retail or wholesale) but
reflected as secured indebtedness on a balance sheet in conformity with International
Financial Reporting Standards then in effect;



     (q) Liens on Margin Stock owned by the Guarantor and its Restricted Subsidiaries to the
extent such Margin Stock so mortgaged exceeds 25% of the fair market value of the sum of the
Principal Property of the Guarantor and the Restricted Subsidiaries plus the shares of stock
(including Margin Stock) and indebtedness issued or incurred by the Restricted Subsidiaries;
and



     (r) any Lien on any Principal Property of the Guarantor or the Restricted Subsidiary or
on the Restricted Securities of the Restricted Subsidiary in relation to which Project
Finance Indebtedness has been incurred to secure that Project Finance Indebtedness.



          For the purposes of this Section 1006 and Section 1007, the giving of a guarantee which is
secured by a Lien on a Principal Property or Restricted Securities, and the creation of a
Lien on a Principal Property or Restricted Securities to secure Capital Markets Indebtedness
which existed prior to the creation of such Lien, shall be deemed to involve the creation of
Capital Markets Indebtedness in an amount equal to the principal amount guaranteed or secured by
such Lien; but the amount of Capital Markets Indebtedness secured by Liens on Principal Properties
and Restricted Securities shall be computed without cumulating the underlying indebtedness with any
guarantee thereof or Lien securing the same.




          For purposes of this Section 1006 and Section 1007, the following shall not be deemed to be
Liens securing Capital Markets Indebtedness and, accordingly, nothing contained in this Section or
Section 1007 shall prevent, restrict or apply to: (a) any acquisition by the Guarantor or any
Restricted Subsidiary of any property or assets subject to any reservation or exception under the
terms of which any vendor, lessor or assignor creates, reserves or excepts or has created, reserved
or excepted an interest in any mineral and/or the proceeds thereof, any royalty, production
payment, interest in net proceeds or profits, right to take production in kind, easement, right of
way, surface use right, water right or other interest in real property, (b) any lien created to
secure our portion of someone else’s expenses to develop or conduct operations with respect to
mineral resources on a property in which the Company or a Restricted Subsidiary has an interest,
(c) any conveyance or assignment under the terms of which the Guarantor or any Restricted
Subsidiary conveys or assigns to any Person or Persons an interest in any mineral and/or the
proceeds thereof, any royalty, production payment, interest in net proceeds or profits, right to
take production in kind, easement, right of way, surface use right, water right or other interest
in real property, or (d) any Lien upon any property or assets owned or leased by the Guarantor or
any Restricted Subsidiary or in which the Guarantor or any Restricted Subsidiary owns an interest
to secure (i) to the Person or Persons paying the expenses of developing and/or conducting
operations for the recovery, storage, transportation and/or sale of the mineral resources of the
said property (or property with which it is utilized) the payment to such Person or Persons of the
Guarantor’s or the Restricted Subsidiary’s proportionate part of such









 



79


development and/or operating
expense, (ii) to the other Persons who hold an interest in the property or assets the performance
of the obligations of the Guarantor or the Restricted Subsidiary in connection therewith.




          SECTION 1007. Limitation on Sale and Leaseback Transactions.




          The Guarantor will not itself, and will not permit any Restricted Subsidiary to, enter into
any arrangement after the date of the first issuance by the Company of Securities issued pursuant
to this Indenture, with any bank, insurance company or other lender or investor (other than the
Guarantor or another Restricted Subsidiary) providing for the leasing by the Guarantor or any such
Restricted Subsidiary of any Principal Property (except a lease for a temporary period not to
exceed three years by the end of which it is intended that the use of such Principal Property by
the lessee will be discontinued), which was or is owned or leased by the Guarantor or a Restricted
Subsidiary and which has been or is to be sold or transferred more than 12 months after the
acquisition thereof or after the completion of construction and commencement of full operation
thereof by the Guarantor or such Restricted Subsidiary to such lender or investor or to any Person
to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property (herein referred to as a “sale
and leaseback transaction”), unless:





     (a) the Attributable Debt of the Guarantor and its Restricted Subsidiaries in respect
of such sale and leaseback transaction and all other sale and leaseback transactions entered
into after the date of the first issuance by the Company of Securities issued pursuant to
this Indenture (other than such sale and leaseback transactions as are permitted by
paragraph (b) below), plus the aggregate principal amount of Debt secured by Liens on
Principal Properties and Restricted Securities then outstanding (excluding any such Debt
secured by permitted Liens covered in Section 1006) without equally and ratably securing the
Securities, would not, with respect to a series of Securities, exceed a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, of Consolidated Net Tangible Assets, or




     (b) the Guarantor, within 12 months after the sale or transfer, applies or causes a
Restricted Subsidiary to apply an amount equal to the greater of the net proceeds of such
sale or transfer or fair market value of the Principal Property so sold and leased back at
the time of entering into such sale and leaseback transaction (in either case as determined
by any two directors, or any director and secretary, of the Guarantor) to the retirement of
Securities of any series or other Debt of the Guarantor (other than Debt subordinated to the
Securities) or Debt of a Restricted Subsidiary, having a stated maturity more than 12 months
from the date of such application or which is extendible at the option of the obligor
thereon to a date more than 12 months from the date of such application (and, unless
otherwise expressly provided with respect to any one or more series of Securities, any
redemption of Securities pursuant to this provision shall not be deemed to constitute a
refunding operation or anticipated refunding operation for the purposes of any provision
limiting the Company’s right to redeem Securities of any one or more such series when such
redemption involves a refunding operation or anticipated refunding operation);
provided that the amount to be so applied shall be reduced by (i) the principal
amount of Securities delivered within 12 months after such sale or transfer to the Trustee
for retirement and cancellation, and (ii) the principal amount of any such Debt of the









 



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Guarantor or a Restricted Subsidiary, other than Securities, voluntarily retired by the
Guarantor or a Restricted Subsidiary within 12 months after such sale or transfer.
Notwithstanding the foregoing, no retirement referred to in this paragraph (b) may be
effected by payment at maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision, or




     (c) the Guarantor or such Restricted Subsidiary would be entitled, pursuant to Section
1006, to incur Debt secured by a Lien on the Principal Property to be leased without equally
and ratably securing the Securities, or




     (d) the Guarantor shall, at or prior to the time of entering into the sale and
leaseback transaction, enter into a bona fide commitment or commitments to expend for the
acquisition or improvement of a Principal Property an amount at least equal to the fair
value (as so determined) of the property sold and leased back.



          Notwithstanding the foregoing, where the Guarantor or any Restricted Subsidiary is the lessee
in any sale and leaseback transaction, Attributable Debt shall not include any Debt
resulting from the guarantee by the Guarantor or any other Restricted Subsidiary of the
lessee’s obligation thereunder.




          SECTION 1008. Waiver of Certain Covenants.




          The Company and the Guarantor, as the case may be, may, with respect to any series of
Securities, omit in any particular instance to comply with any term, provision or condition which
affects such series set forth in Sections 1006 and 1007, inclusive, or, as specified pursuant to
Section 301(15) for Securities of such series, in any covenants of the Company or the Guarantor
added to Article Ten pursuant to Section 301(14) or Section 301(15) in connection with Securities
of such series, if before or after the time for such compliance the Holders of at least a majority
in principal amount of all Outstanding Securities of such series, by Act of such Holders, waive
such compliance in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective, the obligations of
the Company and the Guarantor and the duties of the Trustee to Holders of Securities of such series
in respect of any such term, provision or condition shall remain in full force and effect.




          SECTION 1009. Calculation of Original Issue Discount.




          While any series of Original Issue Discount Security is outstanding, the Company shall provide
to the Trustee by December 31 of each year such information in the Company’s possession as the
Trustee reasonably requires to enable the Trustee to prepare and file any form required to be
submitted by the Company to the Internal Revenue Service and to the Holders of any series of
Securities relating to original issue discount, including, without limitation, Form 1099-OID or any
successor form.

















 





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ARTICLE ELEVEN




REDEMPTION OF SECURITIES



          SECTION 1101. Applicability of Article.



          Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with the terms of such Securities and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.



          SECTION 1102. Election to Redeem; Notice to Trustee.



          The election of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of less than all of the
Securities of a series, the Company shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such
restriction.



          SECTION 1103. Selection by Trustee of Securities to Be Redeemed.



          If less than all the Securities of any series issued on the same day with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series issued
on the same day with the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection for redemption of
portions of the principal of Securities of such series; provided, however, that no
such partial redemption shall reduce the portion of the principal amount of a Security not redeemed
to less than the minimum authorized denomination for Securities of such series established pursuant
to Section 301.



          The Trustee shall promptly notify the Company and the Security Registrar (if other than
itself) in writing of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.



          For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed.



          SECTION 1104. Notice of Redemption.



          Except as otherwise specified as contemplated by Section 301, notice of redemption shall be
given in the manner provided for in Section 106 not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, but









 



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failure to give such notice in
the manner herein provided to the Holder of any Security designated for redemption as a whole or in
part, or any defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion thereof.



          All notices of redemption shall state:




     (1) the Redemption Date,




     (2) the Redemption Price and the amount of accrued interest to the Redemption
Date payable as provided in Section 1106, if any,




     (3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,




     (4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder will receive, without charge, a new Security
or Securities of authorized denominations for the principal amount thereof remaining
unredeemed,




     (5) that on the Redemption Date, the Redemption Price and accrued interest, if
any, to the Redemption Date payable as provided in Section 1106 will become due and
payable upon each such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,




     (6) the Place or Places of Payment where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price and
accrued interest, if any,




     (7) that the redemption is for a sinking fund, if such is the case,




     (8) that, unless otherwise specified in such notice, Bearer Securities of any
series, if any, surrendered for redemption must be accompanied by all coupons
maturing subsequent to the Redemption Date or the amount of any such missing coupon
or coupons will be deducted from the Redemption Price unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is furnished,




     (9) if 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 such Redemption
Date pursuant to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made; and









 



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     (10) The CUSIP number, if any.



          Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request and provision of such notice information to the
Trustee at least 10 days prior to the date such notice of redemption is requested to be sent to the
Holders, by the Trustee in the name and at the expense of the Company.



          SECTION 1105. Deposit of Redemption Price.



          Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) no later than 2:00 p.m. (New York time) on the Business Day prior to such
Redemption Date an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the
Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed
on that date.



          SECTION 1106. Securities Payable on Redemption Date.



          Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified in the
Currency in which the Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the Redemption Date), and
from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to
bear interest and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security
for redemption in accordance with said notice, together with all coupons, if any, appertaining
thereto maturing after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for such interest; and
provided further that installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as such at the close
of business on the relevant Record Dates according to their terms and the provisions of Section
307.



          If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant
coupons maturing after the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender
of such missing coupon or coupons may be waived by the Company









 



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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 the Holder of such Security shall surrender to the Trustee or
any Paying Agent 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;
provided, however, that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.



          SECTION 1107. Securities Redeemed in Part.



          Any Security which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing), and the Company shall execute, the Guarantor shall execute
the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered. However, if
less than all the Securities of any series with differing issue dates, interest rates and stated
maturities are to be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at least 45 days prior to
the relevant redemption date.



          SECTION 1108. Optional Redemption Due to Changes in Tax Treatment.



          Each series of Securities may be redeemed at the option of the Company or the Guarantor (or
their successors) in whole but not in part at any time (except in the case of Securities that have
a variable rate of interest, which may be redeemed on any Interest Payment Date) at a Redemption
Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption
(except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the
Redemption Price specified by the terms of such series of Securities) if, (i) the Company or the
Guarantor is or would be required to pay Additional
Amounts as a result of any change in or amendment to the laws or any regulations or rulings
promulgated thereunder of a Taxing Jurisdiction or any change in the official application or
interpretation of such laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation
to which a Taxing Jurisdiction is a party, which change, execution or amendment becomes effective
on or after the date of issuance of such series pursuant to Section 301(or in the case of a
successor Person to the Company or the Guarantor, the date on which such successor Person became
such or in the case of an assumption by the Guarantor or its Subsidiaries of obligations of the
Company under the Securities, the date of such assumption), or (ii) as a result of any change in
the official application or interpretation of, or any execution of or amendment to, any treaty or
treaties affecting taxation to which a Taxing Jurisdiction is a party, which change, execution or
amendment is proposed and becomes effective on or after a date on which the Guarantor or any of its
Subsidiaries (an “Intercompany Debtor”) borrows money from the









 



85



Company, the Intercompany Debtor is
or would be required to deduct or withhold tax on any payment to the Company to enable the Company
to make any payment of principal, premium, if any, or interest, and the payment of such Additional
Amounts, in the case of clause (i), or such deductions or withholding, in the case of clause (ii),
cannot be avoided by the use of any reasonable measures available to the Company, the Guarantor or
the Intercompany Debtor. Prior to the giving of notice of redemption of such Securities pursuant to
this Indenture, the Company will deliver to the Trustee an Officers’ Certificate, stating that the
Company is entitled to effect such redemption and setting forth in reasonable detail a statement of
circumstances showing that the conditions precedent to the right of the Company to redeem such
Securities pursuant to this Section have been satisfied.



ARTICLE TWELVE




SINKING FUNDS



          SECTION 1201. Applicability of Article.



          Retirements of Securities of any series pursuant to any sinking fund shall be made in
accordance with the terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.



          The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series 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 Securities of any series is herein referred to as
an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.



          SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.



          Subject to Section 1203, in lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at its option (1)
deliver to the Trustee Outstanding Securities of a series (other than any previously called for
redemption) theretofore purchased or otherwise acquired by the Company together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining thereto, and/or (2)
receive credit for Securities of such series which have been previously delivered to the Trustee by
the Company or for Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all
or any part of any mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by the terms of such
series; provided, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation of the sinking fund
and the amount of such mandatory sinking fund payment shall be reduced accordingly.









 



86


          SECTION 1203. Redemption of Securities for Sinking Fund.



          Not less than 60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and
312(e)) and the portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers’ Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company
shall thereupon be obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.



ARTICLE THIRTEEN




REPAYMENT AT OPTION OF HOLDERS



          SECTION 1301. Applicability of Article.



          Repayment of Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in accordance with this
Article.



          SECTION 1302. Repayment of Securities.



          Securities of any series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Company and the Guarantor
covenant that at least one Business Day prior to the Repayment Date the Company or the Guarantor
will deposit with the Trustee or with a Paying Agent (or, if the Company or the Guarantor is acting
as its own Paying Agent, segregate and hold in trust as provided in Section 1003) no later than
2:00 p.m. (New York time) on the Business Day prior to such Repayment Date an amount of money in
the Currency in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided by the
terms of the Securities of any series, a percentage of the principal) of and (except if the
Repayment Date shall be an Interest Payment Date) accrued









 



87



interest, if any, on, all the Securities
or portions thereof, as the case may be, to be repaid on such date.



          SECTION 1303. Exercise of Option.



          Securities of any series subject to repayment at the option of the Holders thereof will
contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the
option of the Holder, any Security so providing for such repayment, with the “Option to Elect
Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s
attorney duly authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or places or which the
Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor
later than 30 days prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for Securities of such
series, and the denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the
option of the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company and the Guarantor.



          SECTION 1304. When Securities Presented for Repayment Become Due and Payable.



          If Securities of any series providing for repayment at the option of the Holders thereof shall
have been surrendered as provided in this Article and as provided by or pursuant to the terms of
such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company or the Guarantor on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company or the Guarantor shall
default in the payment of such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such interest appertaining
to any Bearer Securities so to be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such provisions, together with all
coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Company or the Guarantor, together with accrued
interest, if any, to the Repayment Date; provided, however, that coupons whose
Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and surrender of such coupons;
and provided further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Company and the Guarantor shall default in the payment
thereof) to the Holders of such Securities, or one or more









 



88



Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.



          If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant
coupons maturing after the Repayment Date, such Security may be paid after deducting from the
amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company,
the Guarantor 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 the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of
which a deduction shall have been made as provided in the preceding sentence, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those coupons.



          If the principal amount of any Security surrendered for repayment shall not be so repaid upon
surrender thereof, such principal amount (together with interest, if any, thereon accrued to such
Repayment Date) shall, until paid, bear interest from the Repayment Date at the
rate of interest set forth in such Security or Yield to Maturity (in the case of Original
Issue Discount Securities).



          SECTION 1305. Securities Repaid in Part.



          Upon surrender of any Registered Security which is to be repaid in part only, the Company
shall execute, the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee
shall authenticate and deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal amount equal to and in
exchange for the portion of the principal of such Security so surrendered which is not to be
repaid.



ARTICLE FOURTEEN




DEFEASANCE AND COVENANT DEFEASANCE



          SECTION 1401. Applicability of Article; Company’s and Guarantor’s Option to Effect
Defeasance or Covenant Defeasance.



          Unless provided otherwise, pursuant to Section 301 the provisions of such Section or Sections,
as the case may be, together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any coupons appertaining thereto, and the Company and the
Guarantor may at their option by Board Resolution, at any time, with respect to such Securities and
any coupons appertaining thereto, elect to have Section 1402 (if applicable) or









 



89



Section 1403 (if
applicable) be applied to such Outstanding Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.



          SECTION 1402. Defeasance and Discharge.



          Upon their exercise of the above option applicable to this Section with respect to any
Securities of or within a series, each of the Company and the Guarantor shall be deemed to have
been discharged from their respective obligations with respect to such Outstanding Securities and
any coupons appertaining thereto and under the Guarantee in respect thereof on the date the
conditions set forth in Section 1404 are satisfied (hereinafter, “defeasance”). For this purpose,
such defeasance means that the Company and the Guarantor shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto and under the Guarantee in respect thereof which shall thereafter be deemed to
be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have satisfied all its other obligations
under such Securities and any coupons appertaining thereto and under the Guarantee in respect
thereof and this Indenture insofar as such Securities and any coupons appertaining thereto and the
Guarantee in respect thereof are concerned (and the Trustee, at the
expense of the Company and the Guarantor shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any coupons appertaining
thereto to receive, solely from the trust fund described in Section 1405 and as more fully set
forth in such Section, payments in respect of the principal of (and premium, if any) and interest,
if any, on such Securities and any coupons appertaining thereto when such payments are due, (B) the
Company’s and the Guarantor’s obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and with respect to the payment of Additional Amounts, to the extent then unknown, on
such Securities as contemplated by Section 1005, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to compliance with this
Article Fourteen, the Company or the Guarantor may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1403 with respect to such Securities
and any coupons appertaining thereto.



          SECTION 1403. Covenant Defeasance.



          Upon the Company’s or the Guarantor’s exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company and the Guarantor shall be
released from their respective obligations under Sections 1006 and 1007, and, if specified pursuant
to Section 301, its obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto and the Guarantee in respect thereof on and after
the date the conditions set forth in Section 1404 are satisfied (hereinafter, “covenant
defeasance”), and such Securities and any coupons appertaining thereto shall thereafter be deemed
to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Sections 1006 and 1007, or such
other covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities
and any coupons appertaining thereto, the Company and the Guarantor may omit to comply with and
shall have no liability in respect of any term,









 



90



condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of
Default under Section 501(5) or
501(8) or otherwise, as the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining thereto and the Guarantee in respect
thereof shall be unaffected thereby.



          SECTION 1404. Conditions to Defeasance or Covenant Defeasance.



          The following shall be the conditions to application of Section 1402 or Section 1403 to any
Outstanding Securities of or within a series and any coupons appertaining thereto and the Guarantee
in respect thereof:




     (a) The Company or the Guarantor shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of Section 607
who shall agree to comply with the provisions of this Article Fourteen applicable to it) as
trust funds in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of such Securities and
any coupons appertaining thereto, (1) an amount (in such Currency in which such Securities
and any coupons appertaining thereto are then specified as payable at Stated Maturity), or
(2) Government Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the Currency in which such Securities and coupons appertaining
thereto are then specified as payable at Stated Maturity) which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof in an amount, sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, and any Additional Amounts then
known on such Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding Securities and
any coupons appertaining thereto on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities and any coupons
appertaining thereto. Before such a deposit, the Company or the Guarantor, as the case may
be, may give to the Trustee, in accordance with Section 1102 hereof, a notice of its
election to redeem all or any portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given
effect in applying the foregoing.









 



91



     (b) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other material agreement or
instrument to which the Company or the Guarantor is a party or by which it is bound.




     (c) No Default or Event of Default with respect to such Securities and any coupons
appertaining thereto shall have occurred and be continuing on the date of such deposit or,
insofar as Sections 501(6) and 501(7) are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).




     (d) In the case of an election under Section 1402, the Company or the Guarantor shall
have delivered to the Trustee an Opinion of Counsel stating that (1) the Company or the
Guarantor has received from, or there has been published by, the Internal Revenue Service a
ruling, or (2) since the date of execution of this Indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any coupons appertaining thereto will not recognize income, gain or loss
for United States federal income tax purposes as a result of such defeasance and will be
subject to United States 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.




     (e) In the case of an election under Section 1403, the Company or the Guarantor shall
have delivered to the Trustee Opinions of Counsel to the effect that the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize income, gain
or loss for United States federal income tax purposes as a result of such covenant
defeasance and will be subject to United States 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.




     (f) The Company or the Guarantor shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case may
be) have been complied with.




     (g) Notwithstanding any other provisions of this Section, such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company or the Guarantor in connection
therewith pursuant to Section 301.



          SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.



          Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the “Trustee”) pursuant to Section 1404 in respect of any Outstanding Securities of
any series and any coupons appertaining thereto shall be held in









 



92



trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company or
the Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such
money need not be segregated from other funds except to the extent required by law.



          Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a
deposit referred to in Section 1404(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms
of such Security to receive payment in a Currency other than that in which the deposit pursuant to
Section 1404(a) has been made in respect of such Security, or (b) a Conversion Event occurs as
contemplated in Section 312(d) or 312(e) or by the terms of any
Security in respect of which the deposit pursuant to Section 1404(a) has been made, the
indebtedness represented by such Security and any coupons appertaining thereto shall be deemed to
have been, and will be, fully discharged and satisfied through the payment of the principal of (and
premium, if any) and interest and Additional Amounts, if any, on such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified below in the case of
any such election) the amount or other property deposited in respect of such Security into the
Currency in which such Security becomes payable as a result of such election or Conversion Event
based on the applicable Market Exchange Rate for such Currency in effect on the second Business Day
prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.



          The Company or the Guarantor, as the case may be, shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of such Outstanding
Securities and any coupons appertaining thereto.



          Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon the Company Request, or the Guarantor, as the case may be, upon
the Guarantor Request, any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with this Article.









 



93


ARTICLE FIFTEEN




MEETINGS OF HOLDERS OF SECURITIES



          SECTION 1501. Purposes for Which Meetings May Be Called.



          If Securities of a series are issuable as Bearer Securities, a meeting of Holders of
Securities of such series may be called at any time and from time to time pursuant to this Article
to make, give or take any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by Holders of Securities of such
series.



          SECTION 1502. Call, Notice and Place of Meetings.



          (a) The Trustee may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in The City of New
York or in London as the Trustee shall determine. Notice of every meeting of Holders of Securities
of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given, in the manner
provided for in Section 106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.



          (b) In case at any time the Company or the Guarantor, pursuant in either case to a Board
Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company,
the Guarantor or the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in The City of New York or in London for such
meeting and may call such meeting for such purposes by giving notice thereof as provided in
paragraph (a) of this Section.



          SECTION 1503. Persons Entitled to Vote at Meetings.



          To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Person entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company, the Guarantor and their respective counsel.









 



94


          SECTION 1504. Quorum; Action.



          The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that, if any action is to be taken at such meeting with respect
to a consent or waiver which this Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the Outstanding Securities of a series, the
Persons entitled to vote such specified percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned
for a period of not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.



          Subject to the foregoing, at the reconvening of any meeting adjourned for lack of a quorum the
Persons entitled to vote 25% in principal amount of the Outstanding Securities at the time shall
constitute a quorum for the taking of any action set forth in the notice of the original meeting.



          Except as limited by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of
such series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities of such series.



          Any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be in writing and shall be binding on all the
Holders of Securities of such series and the related coupons, whether or not present or represented
at the meeting.



          Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at
a meeting of Holders of Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal









 



95



amount
of all Outstanding Securities affected thereby, or of the Holders of such series and one or more
additional series:




     (i) there shall be no minimum quorum requirement for such meeting; and




     (ii) the principal amount of the Outstanding Securities of such series that vote in
favor of such request, demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.



          SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.



          (a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard
to proof of the holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required
by any such regulations, the holding of Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities.
Such regulations may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or other proof.



          (b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company, the Guarantor or by Holders of
Securities as provided in Section 1502(b), in which case the Company, the Guarantor or the Holders
of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.



          (c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.



          (d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at
which a quorum is present may be adjourned from time to time by Persons









 



96



entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.



          SECTION 1506. Counting Votes and Recording Action of Meetings.



          The vote upon any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least
in duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be delivered to the
Company, to the Guarantor and another to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.



ARTICLE SIXTEEN




GUARANTEE OF SECURITIES



          SECTION 1601. Guarantee.



          This Section 1601 and Section 1602 apply to the Securities of any series to the extent that
the form of the Guarantee to be endorsed on such Securities is not otherwise specifically
established as contemplated by Section 301.



          The Guarantor hereby unconditionally guarantees to each Holder of a Security of each series
authenticated and delivered by the Trustee the due and punctual payment of the principal (including
any amount due in respect of original issue discount) of and any premium and interest on and
Additional Amounts with respect to such Security, and the due and punctual payment of any sinking
fund payments provided for pursuant to the terms of such Security, when and as the same shall
become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, in accordance with the terms of such Security and of this Indenture. The
Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor
and not merely a surety, and shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or
this Indenture, any failure to enforce the provisions of any Security of any series or this
Indenture, any waiver, modification, consent or indulgence granted to the Company with respect
thereto, by the Holder of any Security of any series or the Trustee, or any other circumstances
which may otherwise constitute a legal or equitable discharge of a surety or









 



97



guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, the benefit of discussion, protest or notice with respect to any Security or
the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to
the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that
this Guarantee will not be discharged with respect to any Security except by payment in full of the
principal thereof and any premium and interest or Additional Amounts thereon or as provided in
Article Four, Section 802 or Article Fourteen. The Guarantor further agrees that, as between the
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the
purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby.



          This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any
time payment on any Company Security, in whole or in part, is rescinded or must otherwise be
restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the
Company or otherwise.



          The Guarantor hereby waives, in favor of the Holders and the Trustee, any and all of its
rights, protections, privileges and defenses provided by any applicable law to a guarantor and
waives any right of set-off which the Guarantor may have against the Holder of a Security in
respect of any amounts which are or may become payable by the Holder of a Security to the Company.



          The Guarantor shall be subrogated to all rights of each Holder of Securities against the
Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions
of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation until the principal of
and any premium and interest on all the Securities of the same series and of like tenor shall have
been paid in full.



          The Guarantee shall be governed by and construed in accordance with the laws of the State of
New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable
attorneys’ fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under
the Guarantee.



          No past, present or future stockholder, officer, director, employee or incorporator of the
Guarantor shall have any personal liability under the Guarantee set forth in this Section 1601 by
reason of his or its status as such stockholder, officer, director, employee or incorporator.



          The Guarantee set forth in this Section 1601 shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on such Security shall
have been signed by or on behalf of the Trustee.









 



98


          SECTION 1602. Execution of Guarantee.



          To evidence its Guarantee to the Holders specified in Section 1601, the Guarantor hereby
agrees to execute the Guarantee in substantially the form set forth in Section 204 to be endorsed
on each Security authenticated and delivered by the Trustee. The Guarantor hereby agrees that its
Guarantee set forth in Section 1601 shall remain in full force and effect notwithstanding any
failure to endorse on each Security such Guarantee. Each such Guarantee shall be signed on behalf
of the Guarantor by any two directors, or any director and secretary, of the Guarantor, prior to
the authentication of the Security on which it is endorsed, and the delivery of such Security by
the Trustee, after the due authentication thereof by the Trustee hereunder, shall constitute due
delivery of the Guarantee on behalf of the Guarantor. Such signatures upon
the Guarantee may be manual or facsimile signatures of any present, past or future such
directors or officers and may be imprinted or otherwise reproduced below the Guarantee, and in case
any such director or officer who shall have signed the Guarantee shall cease to hold such offices
before the Security on which such Guarantee is endorsed shall have been authenticated and delivered
by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and
delivered or disposed of as though the person who signed the Guarantee had not ceased to hold such
office of the Guarantor.



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









 



99


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



	 	 	 	 	 
	 	ANGLOGOLD ASHANTI HOLDINGS PLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ANGLOGOLD ASHANTI LIMITED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 









 







EXHIBIT A




FORMS OF CERTIFICATION



EXHIBIT A-1



FORM OF CERTIFICATE TO BE GIVEN BY

PERSON ENTITLED TO RECEIVE BEARER SECURITY

OR TO OBTAIN INTEREST PAYABLE PRIOR

TO THE EXCHANGE DATE



CERTIFICATE



[Insert title or sufficient description

of Securities to be delivered]




          This is to certify that as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States federal income taxation regardless
of its source (“United States persons(s)”), (ii) are owned by United States person(s) that are (a)
foreign branches of United States financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 1.165-12(c)(1)(iv) are herein referred to as “financial
institutions”) purchasing for their own account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States financial institutions and who
hold the Securities through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise [Name of Issuer] or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in clause (i) or (ii)),
this is to further certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a person within the
United States or its possessions.



          As used herein, “United States” means the United States of America (including the states and
the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.


A-1-1








 





          We undertake to advise you promptly by tested telex on or prior to the date on which you
intend to submit your certification relating to the above-captioned Securities held by you for our
account in accordance with your Operating Procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.



          This certificate excepts and does not relate to [U.S.$]_________ of such interest in the
above-captioned Securities in respect of which we are not able to certify and as to which we
understand an exchange for an interest in a Permanent Global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made
until we do so certify.



          We understand that this certificate may be required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.



Dated:



[To be dated no earlier than the 15th day

prior to (i) the Exchange Date or (ii) the

relevant Interest Payment Date occurring

prior to the Exchange Date, as applicable]




	 	 	 	 	 
	 	[Name of Person Making Certification]

 	 
	 	
 	 
	 	(Authorized Signatory) 	 
	 	Name:
Title:  	
 	 





A-1-2







 






EXHIBIT A-2




FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR

AND CLEARSTREAM IN

CONNECTION WITH THE EXCHANGE OF A PORTION OF A

TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST

PAYABLE PRIOR TO THE EXCHANGE DATE



CERTIFICATE



[Insert title or sufficient description

of Securities to be delivered]




          This is to certify that based solely on written certifications that we have received in
writing, by tested telex or by electronic transmission from each of the persons appearing in our
records as persons entitled to a portion of the principal amount set forth below (our “Member
Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.$]_________
principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation regardless of its
source (“United States person(s)”), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(iv) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof (and in either case
(a) or (b), each such financial institution has agreed, on its own behalf or through its agent,
that we may advise [Name of Issuer] or its agent that such financial institution will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described in clause (i) or (ii))
have certified that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or its possessions.



          As used herein, “United States” means the United States of America (including the states and
the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.



          We further certify that (i) we are not making available herewith for exchange (or, if
relevant, collection of any interest) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of Member Organizations
and (ii) as of the date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member Organizations


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with respect to any portion of the part submitted herewith for exchange (or, if relevant,
collection of any interest) are no longer true and cannot be relied upon as of the date hereof.




          We understand that this certification is required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.



Dated:



[To be dated no earlier than the Exchange

Date or the relevant Interest Payment Date

occurring prior to the Exchange Date, as

applicable]




	 	 	 	 	 
	 	[EUROCLEAR BANK S.A./N.V., as Operator of the

Euroclear System]

[CLEARSTREAM]

 	 
	 	By  	 	 
	 	 	 	 
	 	 	 	 
	 




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