Exhibit 4.9


 


FORM OF SUBORDINATED INDENTURE


 






 


VENOCO, INC.,


ISSUER,


AND


[     ],


 






 


TRUSTEE


INDENTURE


DATED AS OF
[                    ],
20[     ]


 






 


SENIOR DEBT SECURITIES


 






 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  Section 1.01

  	
  Definitions of Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II ISSUE, DESCRIPTION, TERMS,
  EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES

  	
  5

  
	
   

  	
   

  
	
  Section 2.01

  	
  Designation and Terms of Securities

  	
  5

  
	
  Section 2.02

  	
  Form of Securities and Trustee’s Certificate

  	
  7

  
	
  Section 2.03

  	
  Denominations; Provisions for Payment

  	
  7

  
	
  Section 2.04

  	
  Execution and Authentications

  	
  8

  
	
  Section 2.05

  	
  Registration of Transfer and Exchange

  	
  9

  
	
  Section 2.06

  	
  Mutilated, Destroyed, Lost or Stolen Securities

  	
  10

  
	
  Section 2.07

  	
  Cancellation

  	
  11

  
	
  Section 2.08

  	
  Benefits of Indenture

  	
  11

  
	
  Section 2.09

  	
  Authenticating Agent

  	
  11

  
	
  Section 2.10

  	
  Global Securities

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE III COVENANTS

  	
  13

  
	
   

  	
   

  
	
  Section 3.01

  	
  Payment of Principal, Premium and Interest

  	
  13

  
	
  Section 3.02

  	
  Maintenance of Office or Agency

  	
  13

  
	
  Section 3.03

  	
  Paying Agents

  	
  13

  
	
  Section 3.04

  	
  Appointment to Fill Vacancy in Office of Trustee

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV SECURITYHOLDERS’ LISTS AND
  REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  14

  
	
   

  	
   

  
	
  Section 4.01

  	
  Company to Furnish Trustee Names and Addresses of Securityholders

  	
  14

  
	
  Section 4.02

  	
  Preservation Of Information; Communications With Securityholders

  	
  15

  
	
  Section 4.03

  	
  Reports by the Company

  	
  15

  
	
  Section 4.04

  	
  Reports by the Trustee

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE V REMEDIES OF THE TRUSTEE AND
  SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  16

  
	
   

  	
   

  
	
  Section 5.01

  	
  Events of Default

  	
  16

  
	
  Section 5.02

  	
  Suits for Enforcement by Trustee

  	
  18

  
	
  Section 5.03

  	
  Application of Moneys Collected

  	
  19

  
	
  Section 5.04

  	
  Limitation on Suits

  	
  19

  
	
  Section 5.05

  	
  Rights and Remedies Cumulative; Delay or Omission Not Waiver

  	
  20

  
	
  Section 5.06

  	
  Control by Securityholders

  	
  20

  
	
  Section 5.07

  	
  Undertaking to Pay Costs

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI CONCERNING THE TRUSTEE

  	
  21

  
	
   

  	
   

  
	
  Section 6.01

  	
  Certain Duties and Responsibilities of Trustee

  	
  21

  
	
  Section 6.02

  	
  Certain Rights of Trustee

  	
  22

  
	
  Section 6.03

  	
  Trustee Not Responsible for Recitals or Issuance or Securities

  	
  24

  



 


i

















 


	
  Section 6.04

  	
  May Hold Securities

  	
  24

  
	
  Section 6.05

  	
  Moneys Held in Trust

  	
  24

  
	
  Section 6.06

  	
  Compensation and Reimbursement

  	
  24

  
	
  Section 6.07

  	
  Reliance on Officers’ Certificate

  	
  25

  
	
  Section 6.08

  	
  Disqualification; Conflicting Interests

  	
  25

  
	
  Section 6.09

  	
  Corporate Trustee Required; Eligibility

  	
  25

  
	
  Section 6.10

  	
  Resignation and Removal; Appointment of Successor

  	
  25

  
	
  Section 6.11

  	
  Acceptance of Appointment By Successor

  	
  27

  
	
  Section 6.12

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  28

  
	
  Section 6.13

  	
  Preferential Collection of Claims Against the Company

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII CONCERNING THE SECURITYHOLDERS

  	
  28

  
	
   

  	
   

  
	
  Section 7.01

  	
  Evidence of Action by Securityholders

  	
  28

  
	
  Section 7.02

  	
  Proof of Execution by Securityholders

  	
  29

  
	
  Section 7.03

  	
  Who May be Deemed Owners

  	
  29

  
	
  Section 7.04

  	
  Certain Securities Owned by Company Disregarded

  	
  29

  
	
  Section 7.05

  	
  Actions Binding on Future Securityholders

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII SUPPLEMENTAL INDENTURES

  	
  30

  
	
   

  	
   

  
	
  Section 8.01

  	
  Supplemental Indentures Without the Consent of Securityholders

  	
  30

  
	
  Section 8.02

  	
  Supplemental Indentures With Consent of Securityholders

  	
  31

  
	
  Section 8.03

  	
  Effect of Supplemental Indentures

  	
  32

  
	
  Section 8.04

  	
  Securities Affected by Supplemental Indentures

  	
  32

  
	
  Section 8.05

  	
  Execution of Supplemental Indentures

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX SUCCESSOR ENTITY

  	
  33

  
	
   

  	
   

  
	
  Section 9.01

  	
  Company May Consolidate, Etc.

  	
  33

  
	
  Section 9.02

  	
  Successor Entity Substituted

  	
  33

  
	
  Section 9.03

  	
  Evidence of Consolidation, Etc. to Trustee

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE X SATISFACTION AND DISCHARGE

  	
  34

  
	
   

  	
   

  
	
  Section 10.01

  	
  Satisfaction and Discharge of Indenture

  	
  34

  
	
  Section 10.02

  	
  Discharge of Obligations

  	
  34

  
	
  Section 10.03

  	
  Deposited Moneys to be Held in Trust

  	
  35

  
	
  Section 10.04

  	
  Payment of Moneys Held by Paying Agents

  	
  35

  
	
  Section 10.05

  	
  Repayment to Company

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI DEFEASANCE AND COVENANT
  DEFEASANCE

  	
  35

  
	
   

  	
   

  
	
  Section 11.01

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

  	
  35

  
	
  Section 11.02

  	
  Defeasance and Discharge

  	
  36

  
	
  Section 11.03

  	
  Covenant Defeasance

  	
  36

  
	
  Section 11.04

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  36

  
	
  Section 11.05

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

  	
  38

  



 


ii

















 


	
  ARTICLE XII IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  39

  
	
   

  	
   

  
	
  Section 12.01

  	
  No Recourse

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII MISCELLANEOUS PROVISIONS

  	
  39

  
	
   

  	
   

  
	
  Section 13.01

  	
  Effect on Successors and Assigns

  	
  39

  
	
  Section 13.02

  	
  Actions by Successor

  	
  39

  
	
  Section 13.03

  	
  Notices

  	
  39

  
	
  Section 13.04

  	
  Governing Law

  	
  40

  
	
  Section 13.05

  	
  Compliance Certificates and Opinions

  	
  40

  
	
  Section 13.06

  	
  Payments on Business Days

  	
  40

  
	
  Section 13.07

  	
  Conflict with Trust Indenture Act

  	
  41

  
	
  Section 13.08

  	
  Counterparts

  	
  41

  
	
  Section 13.09

  	
  Separability

  	
  41

  
	
  Section 13.10

  	
  Assignment

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV GUARANTEE OF SECURITIES

  	
  41

  
	
   

  	
   

  
	
  Section 14.01

  	
  Securities Guarantee

  	
  41

  
	
  Section 14.02

  	
  Limitation on Guarantor Liability

  	
  43

  
	
  Section 14.03

  	
  Execution and Delivery of Securities Guarantee Notation

  	
  43

  



 


iii

















 


CROSS-REFERENCE TABLE(2)


 


	
  Section of Trust Indenture Act of 1939, as amended

  	
   

  	
  Section of Indenture

  
	
  310(a)(1)

  	
   

  	
  6.09

  
	
  310(a)(2)

  	
   

  	
  6.09

  
	
  310(a)(3)

  	
   

  	
  Inapplicable

  
	
  310(a)(4)

  	
   

  	
  Inapplicable

  
	
  310(a)(5)

  	
   

  	
  6.09

  
	
  310(b)

  	
   

  	
  6.08

  
	
   

  	
   

  	
  6.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  6.13

  
	
  311(b)

  	
   

  	
  6.13

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  4.01

  
	
   

  	
   

  	
  4.02(a)

  
	
  312(b)

  	
   

  	
  4.02(c)

  
	
  312(c)

  	
   

  	
  4.02(c)

  
	
  313(a)

  	
   

  	
  4.04(a)

  
	
  313(b)

  	
   

  	
  4.04(b)

  
	
  313(c)

  	
   

  	
   

  
	
   

  	
   

  	
  4.04(b)

  
	
  313(d)

  	
   

  	
  4.04(b)

  
	
  314(a)

  	
   

  	
  4.03

  
	
   

  	
   

  	
  13.05(c)

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.05

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.05(b)

  
	
  315(a)(1)

  	
   

  	
  6.01(b)

  
	
  315(a)(2)

  	
   

  	
  6.02

  
	
  315(b)

  	
   

  	
  4.04(d)

  
	
  315(c)

  	
   

  	
  6.01(a)

  
	
  315(d)

  	
   

  	
  6.01(b)

  
	
   

  	
   

  	
  6.02

  
	
  315(e)

  	
   

  	
  5.07

  
	
  316(a)

  	
   

  	
  5.06

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  2.03

  
	
  317(a)

  	
   

  	
  4.02

  
	
  317(b)

  	
   

  	
  3.03

  
	
  318(a)

  	
   

  	
  13.07

  



 






(2)          This
Cross-Reference Table does not constitute part of the Indenture and shall not
have any bearing on the interpretation of any of its terms or provisions.


 


iv

















 


INDENTURE, dated as of [ ], 20[     ], between
Venoco, Inc., a Delaware corporation (the “Company”), the Guarantors (as
hereinafter defined) and [ ], as trustee (the “Trustee”):


 


WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of secured or unsecured subordinated debt securities (hereinafter
referred to as the “Securities”), which may, but are not required to be
guaranteed by the Guarantors, in an unlimited aggregate principal amount to be
issued from time to time in one or more series as in this Indenture provided,
as registered Securities without coupons, to be authenticated by the
certificate of the Trustee;


 


WHEREAS, to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered, the Company and Guarantors have
duly authorized the execution of this Indenture; and


 


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


 


NOW, THEREFORE, in consideration of the premises and the purchase of
the Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:


 


ARTICLE I

DEFINITIONS


 


Section 1.01                                Definitions of Terms.  The terms defined in this Section (except
as in this Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section and
shall include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended, or
that are by reference in such Act defined in the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.


 


“Authenticating Agent” means an authenticating agent with
respect to all or any of the series of Securities appointed with respect to all
or any series of the Securities by the Trustee pursuant to Section 2.09.


 


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


 


“Board of Directors” means the Board of Directors of the Company
or Guarantor, as the case may be, or any duly authorized committee of such
Board of Directors.


 


“Board Resolution” means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or a Guarantor, as the case
may be, to have been duly


 

















 


adopted by the Board of Directors and to be in full force and effect on
the date of such certification.


 


“Business Day” means, with respect to any series of Securities,
any day other than a day on which Federal or State banking institutions in the
United States (or in any city in which the Paying Agent appointed pursuant to Section 3.03
has an office), are authorized or obligated by law, executive order or
regulation to close.


 


“Certificate” means a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company. The Certificate need not comply with the provisions of Section 13.05.


 


“Company” means Venoco, Inc., a corporation duly organized
and existing under the laws of the State of Delaware, and, subject to the
provisions of Article Ten, shall also include its successors and assigns.


 


“Corporate Trust Office” means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at [ ],
except that whenever a provision herein refers to an office or agency of the
Trustee in the United States, such office is located, at the date hereof, at [
].


 


“Covenant Defeasance” has the meaning specified in Section 11.03.


 


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


 


“Default” means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.


 


“Defeasance” has the meaning specified in Section 11.02.


 


“Depositary” means, with respect to Securities of any series,
for which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.10.


 


“Event of Default” means, with respect to Securities of a
particular series any event specified in Section 5.01, continued for the
period of time, if any, therein designated.


 


“Global Security” means, with respect to any series of
Securities, a Security executed by the Company and delivered by the Trustee to
the Depositary or pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.


 


“Governmental Obligations” means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations


 


2

















 


of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act
of 1933, as amended) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.


 


“Guarantor” means each Person that becomes a guarantor of any
Securities pursuant to the applicable provisions of this Indenture.


 


“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.


 


“Indenture” means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.


 


“Interest Payment Date,” when used with respect to any
installment of interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series is due and
payable.


 


“Officers’ Certificate” means in the case of the Company, a
certificate signed by the Chairman, Chief Executive Officer, President, Chief
Financial Officer, Chief Operating Officer, an Executive Vice President or a
Senior Vice President and by the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company, or in the case of a
Guarantor, a certificate signed by the Chairman of the Board, Chief Executive
Officer, President, any Vice President or any duly authorized officer of such
Guarantor and by the Treasurer or an Assistant Treasurer or the Secretary or
Assistant Secretary of such Guarantor, that is delivered to the Trustee in accordance
with the terms hereof. Each such certificate shall include the statements
provided for in Section 13.05, if and to the extent required by the
provisions thereof.


 


“Opinion of Counsel” means an opinion in writing of legal
counsel, who may be an employee of or counsel for the Company or a Guarantor,
as the case may be, that is delivered to the Trustee in accordance with the
terms hereof. Each such opinion shall include the statements provided for in Section 13.05,
if and to the extent required by the provisions thereof.


 


“Outstanding,” when used with reference to Securities of any
series, means, subject to the provisions of Section 7.04, as of any
particular time, all Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any Paying Agent, or delivered to the
Trustee or any Paying Agent for


 


3

















 


cancellation or that have previously been canceled; (b) Securities
or portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any Paying Agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent); provided, however, that if such
Securities or portions of such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article Three
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; (c) Securities in lieu of or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.06; and (d) Securities, except to the extent
provided in Sections 11.02 and 11.03, with respect to which the Company
has effected Defeasance and/or Covenant Defeasance as provided in Article XI.


 


“Paying Agent” means a paying agent appointed pursuant to Section 3.03.


 


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


 


“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 2.06 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.


 


“Responsible Officer” when used with respect to the Trustee
means the President, any Senior Vice President, the Secretary, the Treasurer, any
trust officer, any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.


 


“Securities” means the debt Securities authenticated and
delivered under this Indenture.


 


“Securities Guarantee” means each guarantee of the obligations
of the Company under this Indenture and the Securities by a Guarantor in
accordance with the provisions hereof.


 


“Securityholder,” “holder of Securities,” “registered
holder” or other similar term, means the Person or Persons in whose name or
names a particular Security shall be registered on the books of the Company
kept for that purpose in accordance with the terms of this Indenture.


 


“Senior Indebtedness” means indebtedness issued pursuant to a
senior indenture, as supplemented or amended by one or more indentures
supplemental thereto, payment of which shall be senior to the payment of the
Securities issued hereunder, pursuant to Article XIV hereof.


 


“Subsidiary” means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at the
time be owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of


 


4

















 


whose outstanding partnership or similar interests shall at the time be
owned by such Person, or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited partnership of
which such Person or any of its Subsidiaries is a general partner.


 


“Supplemental Indenture” means a supplemental indenture entered
into pursuant to Section 8.01.


 


“Trustee” means [ ], and, subject to the provisions of Article Seven,
shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean
each such Person. The term “Trustee” as used with respect to a particular
series of the Securities shall mean the trustee with respect to that series.


 


“Trust Indenture Act” means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 8.01, 8.02 and 9.01, as in
effect at the date of execution of this instrument.


 


“Voting Stock,” as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of the
directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.


 


ARTICLE II

ISSUE, DESCRIPTION, TERMS, EXECUTION,

REGISTRATION AND EXCHANGE OF SECURITIES


 


Section 2.01                                Designation
and Terms of Securities.


 


(a)                                  The
aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series up to the aggregate principal amount of Securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Company or pursuant to one or more indentures supplemental hereto. Prior to the
initial issuance of Securities of any series, there shall be established in or
pursuant to a Board Resolution of the Company, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto:


 


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


 


(2)                                  the
aggregate principal amount of the Securities of that 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 that series) and any limit on the
amount that may be issued;


 


(3)                                  the
date or dates, or the method of determining the dates, on which the Securities
will mature;


 


5

















 


(4)                                  the
rate or rates at which the Securities of the series shall bear interest or the
manner of calculation of such rate or rates, if any;


 


(5)                                  the
date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest will be payable or the manner of determination of such
Interest Payment Dates, the place(s) of payment, and the record date for
the determination of holders to whom interest is payable on any such Interest
Payment Dates;


 


(6)                                  whether
the Securities are secured or unsecured and, if secured, by which assets and
the terms of the security interest;


 


(7)                                  the
right, if any, of the Company to extend the interest payment periods and the
duration of such extension or to reopen a series of Securities and issue
additional Securities of the same series;


 


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


 


(9)                                  the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions (including payments
made in cash in satisfaction of future sinking fund obligations) or at the
option of a holder thereof and the period or periods within which, the price or
prices at which, and the terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;


 


(10)                            the
form of the Securities of the series including the form of the certificate of
authentication for such series;


 


(11)                            if
other than denominations of one thousand U.S. dollars ($1,000) in the case of
registered Securities or five thousand U.S. dollars ($5,000) in the case of
bearer Securities, or any integral multiple thereof, the denominations in which
the Securities of the series shall be issuable;


 


(12)                            any
and all other terms with respect to such series (which terms shall not be
inconsistent with the terms of this Indenture, as amended by any Supplemental
Indenture) including any additional events of default or covenants provided
with respect to the Securities, and any terms which may be required by or
advisable under United States laws or regulations or advisable in connection
with the marketing of Securities of that series;


 


(13)                            whether
the Securities are issuable as a Global Security in temporary or definitive
form and, in such case, the identity of the Depositary for such series;


 


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


 


(15)                            the
subordination terms of the Securities of the series;


 


6














 


(16)                            if
other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 5.01;


 


(17)                            the
applicability, if any, of the Defeasance and Covenant Defeasance provisions of Section 11
to the Securities of the series; and


 


(18)                            whether
the Securities of the series will be guaranteed pursuant to the Securities
Guarantee set forth in Article XIV, any modifications to the terms of Article XIV
applicable to the Securities of such series and the applicability of any other
guarantee.


 


All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.


 


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


 


Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by
which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.


 


Section 2.02                                Form of
Securities and Trustee’s Certificate. 
The Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution and as set forth in an Officers’ Certificate
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Securities of that series may be
listed, or to conform to usage.


 


Section 2.03                                Denominations;
Provisions for Payment.  The
Securities shall be issuable as registered Securities and in the denominations
of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject
to Section 2.01(11). The Securities of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Securities of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America that
at the time is legal tender for public and private debt, at the office of the
Paying Agent.  Each Security shall be
dated the date of its authentication. Interest on the Securities shall be
computed on the basis of a 360-day year composed of twelve 30-day months.


 


The interest installment on any fully registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date for Securities of that series shall be paid to the Person in whose name
said Security (or one or more Predecessor Securities) is registered


 


7

















 


at the close of business on the regular record date for such interest
installment.  The principal, interest and
any premium on bearer Securities shall be paid upon presentation of such
Security at the office of the Payment Agent. 
In the event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular
record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation
and surrender of such Security as provided in Section 3.03.


 


Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term “regular record date”
as used in this Section with respect to a series of Securities with
respect to any Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the first day of a month, or the
last day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month,
whether or not such date is a Business Day.


 


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


 


Section 2.04                                Execution and
Authentications.  The Securities
shall be signed on behalf of the Company by its Chairman, Vice Chairman, Chief
Executive Officer, President, Chief Financial Officer, Chief Operating Officer,
or one of its Executive Vice Presidents or Senior Vice Presidents, or its
Treasurer, or one of its Assistant Treasurers, or its Secretary, or one of its
Assistant Secretaries, under its corporate seal attested by its Secretary or
one of its Assistant Secretaries. Any Securities Guarantee endorsed on the
Securities shall be executed on behalf of the applicable Guarantor by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or any of its Vice Presidents and need not be attested. Signatures
may be in the form of a manual or facsimile signature. The Company and the
Guarantors may use the facsimile signature of any Person who were at any time
proper officers of the Company or a Guarantor, as the case may be,
notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to hold such office.
The seal of the Company may be in the form of a facsimile of such seal and may
be impressed, affixed, imprinted or otherwise reproduced on the Securities. The
Securities may contain such notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its
authentication by the Trustee.


 


No Security or Securities Guarantee endorsed thereon shall be valid
until authenticated manually by an authorized signatory of the Trustee, or by
an Authenticating Agent. Such signature shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture. At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the
Trustee for


 


8

















 


authentication, together with a written order of the Company for the
authentication and delivery of such Securities, signed by an authorized officer
and its Secretary or any Assistant Secretary, and the Trustee in accordance
with such written order shall authenticate and deliver such Securities.


 


In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall
be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of
this Indenture.


 


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


 


Section 2.05                                Registration
of Transfer and Exchange.


 


(a)                                  Securities
of any series may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the United States, for
other Securities of such series of authorized denominations, and for a like
aggregate principal amount. In respect of any Securities so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in exchange therefor the Security or Securities
of the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.


 


(b)                                 The
Company shall keep, or cause to be kept, at its office or agency designated for
such purpose in the United States, or such other location designated by the
Company a register or registers (herein referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed as
authorized by a Board Resolution (the “Security Registrar”).


 


Upon surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company and, if applicable, the
Guarantor, shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new
Security or Securities, with an endorsement of the Securities Guarantee, if
applicable, executed by the Guarantors, of the same series as the Security
presented for a like aggregate principal amount.


 


All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments
of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized
attorney in writing.


 


9

















 


(c)                                  No
service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any
series, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 8.04
not involving any transfer.


 


(d)                                 The
Company shall not be required (1) to issue, exchange or register the
transfer of any Securities during the 15 days immediately preceding (i) the
day of mailing of the relevant notice of redemption, if debt securities of the
series are issuable only as registered Securities, or (ii) the day of the
first publication of the relevant notice of redemption, if any or all
Securities of the series are issuable as bearer debt securities and such
publication is made, (2) to register the transfer of or exchange any
Securities of any series or portions thereof selected for redemption or (3) exchange
any bearer debt security selected for redemption, except to exchange it for a
registered debt security which is simultaneously surrendered for
redemption.  The provisions of this Section 2.05
are, with respect to any Global Security, subject to Section 2.10 hereof.


 


Section 2.06                                Mutilated,
Destroyed, Lost or Stolen Securities. 
In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request, the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security with an
endorsement of the Securities Guarantee, if applicable, executed by the
Guarantors, of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substituted Security shall furnish to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of the applicant’s
Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Security, the Company and the Guarantors (if applicable) may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. In case
any Security that has matured or is about to mature shall become mutilated or
be destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company, the Guarantors (if applicable) and the Trustee
such security or indemnity as they may require to save each of them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the
Company, the Guarantors (if applicable) and the Trustee of the destruction,
loss or theft of such Security and of the ownership thereof.


 


Every replacement Security issued pursuant to the provisions of this Section shall
constitute an additional contractual obligation of the Company and, if
applicable, the Guarantors, whether or not the mutilated, destroyed, lost or
stolen Security shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly
issued hereunder. All


 


10

















 


Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the
extent lawful) any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.


 


Section 2.07                                Cancellation.  All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if surrendered
to the Company or any Paying Agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and
no Securities shall be issued in lieu thereof except as expressly required or
permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company
canceled Securities held by the Trustee. In the absence of such request the Trustee
may dispose of canceled Securities in accordance with its standard procedures
and deliver a certificate of disposition to the Company. If the Company shall
otherwise 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 delivered to the Trustee for
cancellation.


 


Section 2.08                                Benefits of
Indenture.  Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to
any Person, other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article XIV, the holders of Senior
Indebtedness), any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Securities (and, with
respect to the provisions of Article XIV, the holders of Senior
Indebtedness).


 


Section 2.09                                Authenticating Agent.  So long as any of the Securities of any
series remain Outstanding there may be an Authenticating Agent for any or all
such series of Securities which the Trustee shall have the right to appoint.
Said Authenticating Agent shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon exchange, 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. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or State authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.


 


Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee, to the Company, and if applicable, to the
Guarantors. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent, to the Company, and if


 


11

















 


applicable, to the Guarantors. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.


 


Section 2.10                                Global
Securities.


 


(a)                                  If
the Company shall establish pursuant to Section 2.01 that the Securities
of a particular series are to be issued as a Global Security, then the Company
shall execute and the Trustee shall, in accordance with Section 2.04, authenticate
and deliver, a Global Security that (1) shall be registered in the name of
the Depositary or its nominee, (2) shall be delivered by the Trustee to
the Depositary or pursuant to the Depositary’s instruction and (3) shall
bear a legend substantially to the following effect: “Except as otherwise
provided in Section 2.10 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary.”


 


(b)                                 Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee
of such successor Depositary.


 


(c)                                  If
at any time the Depositary for a series of the Securities notifies the Company
that it is unwilling or unable to continue as Depositary for such series or if
at any time the Depositary for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable statute or
regulation, and a successor Depositary for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, this Section 2.10 shall no
longer be applicable to the Securities of such series and the Company, and, if
applicable, the Guarantors, will execute and, subject to Section 2.05, the
Trustee will authenticate and deliver the Securities with an endorsement of the
Securities Guarantee, if applicable, executed by the Guarantors, of such series
in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions of this Section 2.10
shall no longer apply to the Securities of such series. In such event the
Company, and, if applicable, the Guarantors. will execute and, subject to Section 2.05,
the Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities with
an endorsement of the Securities Guarantee, if applicable, of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form
without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee. Such Securities in definitive registered form issued
in exchange for the Global Security pursuant to this Section 2.10(c) shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall


 


12

















 


instruct the
Trustee. The Trustee shall deliver such Securities to the Depositary for
delivery to the Persons in whose names such Securities are so registered.


 


ARTICLE III

COVENANTS


 


Section 3.01                                Payment of
Principal, Premium and Interest.  The
Company will duly and punctually pay or cause to be paid the principal of (and
premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such
Securities.


 


Section 3.02                                Maintenance of
Office or Agency.  So long as any
series of the Securities remain Outstanding, the Company agrees to maintain an
office or agency in the United States, with respect to each such series and at
such other location or locations as may be designated as provided in this Section 3.02,
where (a) Securities of that series may be presented for payment, (b) Securities
of that series may be presented as herein above authorized for registration of
transfer and exchange, and (c) notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be given or
served, such designation to continue with respect to such office or agency
until the Company shall, by written notice signed by its Chairman, Vice
Chairman, Chief Executive Officer, President, Chief Financial Officer, Chief
Operating Officer, or an Executive Vice President or Senior Vice President and
delivered to the Trustee, designate some other office or agency for such
purposes or any of them. 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, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and
demands.


 


Section 3.03                                Paying
Agents.


 


(a)                                  Unless
otherwise designated in a Supplemental Indenture, the Paying Agent for all
series of the Securities (the “Paying Agent”) shall be the Trustee.  If the Company shall appoint one or more
Paying Agent other than the Trustee for all or any series of the Securities,
the Company will cause each such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:


 


(1)                                  that
it will hold all sums held by it as such agent for the payment of the principal
of (and premium, if any) or interest on the Securities of that series (whether
such sums have been paid to it by the Company or by any other obligor of such
Securities) in trust for the benefit of the Persons entitled thereto;


 


(2)                                  that
it will give the Trustee notice of any failure by the Company (or by any other
obligor of such Securities) to make any payment of the principal of (and premium,
if any) or interest on the Securities of that series when the same shall be due
and payable;


 


13

















 


(3)                                  that
it will, at any time during the continuance of any failure referred to in the
preceding paragraph (a)(2) above, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent;
and


 


(4)                                  that
it will perform all other duties of Paying Agent as set forth in this
Indenture.


 


(b)                                 If
the Company shall act as its own Paying Agent with respect to any series of the
Securities, it will on or before each due date of the principal of (and
premium, if any) or interest on Securities of that series, set aside, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have one or more
Paying Agents for any series of Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest on any Securities of that
series, deposit with the Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest 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 this action or failure so to act.


 


(c)                                  Notwithstanding
anything in this Section to the contrary, (1) the agreement to hold
sums in trust as provided in this Section is subject to the provisions of Section 10.05,
and (2) the Company, and, if applicable, the Guarantors, may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or 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 terms and conditions as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.


 


Section 3.04                                Appointment to Fill
Vacancy in Office of Trustee.  The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee,
so that there shall at all times be a Trustee hereunder.


 


ARTICLE IV

SECURITYHOLDERS’ LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE


 


Section 4.01                                Company to Furnish
Trustee Names and Addresses of Securityholders.  The Company will furnish or cause to be
furnished to the Trustee (a) on each regular record date (as defined in Section 2.03),
but in each case will be no more than six months apart, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders
of each series of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to be furnished such list at
any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and (b) at such other times
as the Trustee may request in writing within 30 days after the receipt by
the


 


14

















 


Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished;
provided, however, that, in either case, no such list need be furnished for any
series for which the Trustee shall be the Security Registrar.


 


Section 4.02                                Preservation
Of Information; Communications With Securityholders.


 


(a)                                  The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities
contained in the most recent list furnished to it as provided in Section 4.01
and as to the names and addresses of holders of Securities received by the
Trustee in its capacity as Security Registrar (if acting in such capacity).


 


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


 


(c)                                  Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture
Act with other Securityholders with respect to their rights under this
Indenture or under the Securities. The Company, the Guarantors (if applicable),
the Trustee, the Security Registrar and any other Person shall have the
protection of the Trust Indenture Act Section 312(c).


 


Section 4.03                                Reports
by the Company.


 


(a)                                  The
Company covenants and agrees to file with the Trustee, within 15 days
after the Company files 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) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports that may be required pursuant to Section 13
of the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules and
regulations.


 


(b)                                 The
Company covenants and agrees to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations.


 


(c)                                  The
Company covenants and agrees to transmit by mail, first class postage prepaid,
or reputable overnight delivery service that provides for evidence of receipt,
to the Securityholders, as their names and addresses appear upon the Security
Register, and such other holders of Securities as have, within the two years
preceding such transmission, filed their names and addresses with the Trustee,
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


 


15

















 


pursuant to
subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the Commission.


 


Section 4.04                                Reports
by the Trustee.


 


(a)                                  On
or before [     ] in each year in which any of the
Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the preceding [      ],
if and to the extent required under Section 313(a) of the Trust
Indenture Act.


 


(b)                                 The
Trustee shall comply with Sections 313(b), 313(c) and 313(d) of
the Trust Indenture Act.


 


(c)                                  A
copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.


 


(d)                                 If
an Event of Default occurs and is continuing and the Trustee receives actual
notice of such Event of Default, the Trustee shall mail to each Securityholder
notice of the uncured Event of Default within 90 days after the occurrence
thereof. Except in the case of an Event of Default in payment of principal of,
or interest on, any Securities, or in the payment of any sinking or purchase
fund installment, the Trustee may withhold the 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 interests of the Securityholders.


 


ARTICLE V

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT


 


Section 5.01                                Events
of Default.


 


(a)                                  Whenever
used herein with respect to Securities of a particular series, “Event of
Default” means any one or more of the following events that has occurred and is
continuing:


 


(1)                                  the
Company defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable,
and such default continues for a period of 90 days; provided, however,
that a valid extension of an interest payment period by the Company in accordance
with the terms of any indenture supplemental hereto, shall not constitute a
default in the payment of interest for this purpose;


 


(2)                                  the
Company defaults in the payment of the principal of (or premium, if any, on)
any of the Securities of that series as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise, or
in any payment required by any sinking or analogous fund established with
respect to that series; provided, however, that a valid extension of the
maturity of such Securities in accordance with


 


16














 


the terms of any indenture
supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;


 


(3)                                  the Company
fails to observe or perform any other of its covenants or agreements with
respect to that series contained in this Indenture or otherwise established
with respect to that series of Securities pursuant to Section 2.01 hereof
(other than a covenant or agreement that has been expressly included in this
Indenture solely for the benefit of one or more series of Securities other than
such series) for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company
by the Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least 25% in principal amount of the Securities of
that series at the time Outstanding;


 


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


 


(5)                                  a court of
competent jurisdiction enters an order under any Bankruptcy Law that (i) is
for relief against the Company in an involuntary case, (ii) appoints a
Custodian of the Company for all or substantially all of its property or (iii) orders
the liquidation of the Company, and the order or decree remains unstayed and in
effect for 90 days.


 


(b)                                 In each and
every such case, unless the principal of all the Securities of that series
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Securities of that
series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of all
the Securities of that series to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and
payable.


 


(c)                                  At any time
after the principal of the Securities of that series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
holders of a majority in aggregate principal amount of the Securities of that
series then Outstanding hereunder, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if: (1) the
Company, or, if applicable, one or more Guarantors, has paid or deposited with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of that series and the principal of (and premium, if any,
on) all Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Securities of
that series to the date of such payment or deposit) and any amount payable to
the Trustee under Section 6.06, and (2) any and all other Events of Default
under the Indenture with respect to such series, other than the nonpayment of
principal on Securities of that series that 


 


17

















 


shall not have become due by
their terms, shall have been remedied or waived as provided in Section 5.06.


 


No
such rescission and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.


 


(d)                                 In case the
Trustee shall have proceeded to enforce any right with respect to Securities of
that series under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and
in every such case, subject to any determination in such proceedings, the
Company, the Guarantors, if applicable, and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Guarantors, if applicable, and the
Trustee shall continue as though no such proceedings had been taken.


 


Section 5.02                                Suits for
Enforcement by Trustee.


 


(a)                                  If an Event of
Default specified in Section 5.01(a)(1) or (2) hereof occurs and
is continuing, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or, if
applicable, one or more Guarantors, or any other obligor upon the Securities of
that series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company , or, if applicable,
one or more Guarantors, or any other obligor upon the Securities of that
series, wherever situated.


 


(b)                                 In case of any
receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the
Company, or its creditors or property, the Trustee shall have power to
intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary
or advisable in order to have the claims of the Trustee and of the holders of
Securities of a series allowed for the entire amount due and payable by the
Company under this Indenture at the date of institution of such proceedings and
for any additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by
each of the holders of Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Securityholders, to pay to the Trustee any amount due
it under Section 6.06.


 


(c)                                  All rights of
action and of asserting claims under this Indenture, or under any of the terms
established with respect to Securities of a series, may be enforced by the
Trustee without the possession of any of such Securities, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be 


 


18

















 


brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under Section 6.06,
be for the ratable benefit of the holders of the Securities of such series.


 


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


 


Nothing
contained herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of that series or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such proceeding.


 


Section 5.03                                Application of
Moneys Collected.  Any moneys
collected by the Trustee pursuant to this Article with respect to a
particular series of Securities shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:


 


FIRST:
To the payment of costs and expenses of collection and of all amounts payable
to the Trustee under Section 6.06;


 


SECOND:
To the payment of all Senior Indebtedness of the Company if and to the extent
required by Article XIV; and


 


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


 


Section 5.04                                Limitation on
Suits.  No holder of any Security of
any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (a) such
holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided; (b) the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as trustee
hereunder; (c) such holder or holders shall have offered to the Trustee
such reasonable indemnity as it may 


 


19

















 


require
against the costs, expenses and liabilities to be incurred therein or thereby; (d) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding;
and (e) during such 60-day period, the holders of a majority in principal
amount of the Securities of that series shall not have given the Trustee a
direction inconsistent with the request.


 


Notwithstanding
anything contained herein to the contrary, the right of any holder of any
Security to receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption
date), or to institute suit for the enforcement of any such payment on or after
such respective dates or redemption date, shall not be impaired or affected
without the consent of such holder. By accepting a Security hereunder it is
expressly understood, intended and covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right
in any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any
other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities of such series. For the protection
and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.


 


Section 5.05                                Rights and
Remedies Cumulative; Delay or Omission Not Waiver.


 


(a)                                  All powers and
remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Securities.


 


(b)                                 No delay or
omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or on acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by this Article or
by law to the Trustee or the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.


 


Section 5.06                                Control by
Securityholders.  The holders
of a majority in aggregate principal amount of the Securities of any series at
the time Outstanding, determined in accordance with Section 7.01, 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 such series; provided, however,
that such direction shall not be in conflict with any rule of law or with
this Indenture or be unduly prejudicial to the rights of holders of Securities
of any other series at the time Outstanding determined in accordance with Section 7.01.
Subject to the provisions of Section 6.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith 


 


20

















 


shall,
by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability or might
be unduly prejudicial to the holders of Securities not involved in the
proceeding. The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding affected thereby, determined
in accordance with Section 7.01, may on behalf of the holders of all of
the Securities of such series waive any past default in the performance of any
of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except an uncured default in
the payment of the principal of (or premium, if any) or interest on, any of the
Securities of that series as and when the same shall become due by the terms of
such Securities otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in accordance
with Section 5.01(c)). Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Guarantors, the Trustee and the holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.


 


Section 5.07                                Undertaking to
Pay Costs.  All parties
to this Indenture agree, and each holder of any Securities by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.


 


ARTICLE VI

CONCERNING THE TRUSTEE


 


Section 6.01                                Certain Duties
and Responsibilities of Trustee.


 


(a)                                  The Trustee,
prior to the occurrence of an Event of Default with respect to the Securities
of a series and after the curing of all Events of Default with respect to the
Securities of that series that may have occurred, shall undertake to perform
with respect to the Securities of such series such duties as are set forth in
this Indenture, and no implied covenants shall be read into this Indenture
against the Trustee.  In case an Event of
Default with respect to the Securities of a series has occurred (that has not
been cured or waived), the Trustee shall exercise with respect to Securities of
that series 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 own
affairs.


 


21

















 


(b)                                 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:


 


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


 


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


 


(ii)                                  in the absence
of bad faith on the part of the Trustee, the Trustee may with respect to the
Securities of such series conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions that 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;


 


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


 


(3)                                  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 not less
than a majority in principal amount of the Securities of any series at the time
Outstanding 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 that series; and


 


(4)                                  none of the
provisions contained in this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to
it.


 


Section 6.02                                Certain Rights
of Trustee.  Except as
otherwise provided in Section 6.01:


 


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


 


22

















 


(b)                                 Any request,
direction, order or demand of the Company or a Guarantor mentioned herein shall
be sufficiently evidenced by a Board Resolution or an instrument signed in the
name of the Company, by the Chairman, Vice Chairman, Chief Executive Officer,
President, Executive Vice President or any Senior Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
thereof (unless other evidence in respect thereof is specifically prescribed
herein), and, if applicable, signed in the name of such Guarantors by the
Chairman of the Board, Chief Executive Officer, President, Executive Vice
President or any Senior Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer thereof (unless other
evidence in respect thereof is specifically prescribed herein);


 


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


 


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


 


(e)                                  The Trustee
shall not be liable for any action taken or omitted to be taken 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;


 


(f)                                    The Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other papers or documents,
unless requested in writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Securities of the particular series
affected thereby (determined as provided in Section 7.04); provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and


 


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


 


23

















 


Section 6.03                                Trustee Not
Responsible for Recitals or Issuance or Securities.


 


(a)                                  The recitals
contained herein and in the Securities shall be taken as the statements of the
Company, and, if applicable, the Guarantors, and the Trustee assumes no
responsibility for the correctness of the same.


 


(b)                                 The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities.


 


(c)                                  The Trustee
shall not be accountable for the use or application by the Company of any of
the Securities or of the proceeds of such Securities, or for the use or
application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.01, or
for the use or application of any moneys received by any Paying Agent other
than the Trustee.


 


Section 6.04                                May Hold
Securities.  The Trustee
or any Paying Agent or Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Paying Agent or Security Registrar.


 


Section 6.05                                Moneys Held in
Trust.  Subject to the provisions of Section 10.05,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon.


 


Section 6.06                                Compensation
and Reimbursement.


 


(a)                                  The Company
covenants and agrees to pay to the Trustee, and the Trustee shall be entitled
to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), as the
Company and the Trustee may from time to time agree in writing, for all
services rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises.


 


(b)                                 The obligations
of the Company under this Section to compensate and indemnify the Trustee
and to pay or reimburse the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon
all property and funds held or collected 


 


24

















 


by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.


 


Section 6.07                                Reliance on
Officers’ Certificate. 
Except as otherwise provided in Section 6.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers’ Certificate delivered to
the Trustee and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.


 


Section 6.08                                Disqualification;
Conflicting Interests.  If
the Trustee has or shall acquire any “conflicting interest” within the meaning
of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.


 


Section 6.09                                Corporate
Trustee Required; Eligibility.  There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid 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. The Company may not, nor may any Person directly or indirectly
controlling, controlled by or under common control with the Company, serve as
Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.


 


Section 6.10                                Resignation and
Removal; Appointment of Successor.


 


(a)                                  The Trustee or
any successor hereafter appointed, may at any time resign with respect to the
Securities of one or more series by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first class postage
prepaid, to the Securityholders of such series, as their names and addresses
appear upon the Security Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee with respect to
Securities of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such series,
or any Securityholder 


 


25

















 


of that series who has been
a bona fide holder of a Security or Securities for at least six months may on
behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.


 


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


 


(1)                                  the Trustee
shall fail to comply with the provisions of Section 7.08 after written
request therefor by the Company or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months; or


 


(2)                                  the Trustee
shall cease to be eligible in accordance with the provisions of Section 7.09
and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or


 


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


 


then,
in any such case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, unless the Trustee’s duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.


 


(c)                                  The holders of
a majority in aggregate principal amount of the Securities of any series at the
time Outstanding may at any time remove the Trustee with respect to such series
by so notifying the Trustee and the Company and may appoint a successor Trustee
for such series with the consent of the Company.


 


(d)                                 Any resignation
or removal of the Trustee and appointment of a successor trustee with respect
to the Securities of a series pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.11.


 


(e)                                  Any successor
trustee appointed pursuant to this Section may be appointed with respect
to the Securities of one or more series or all of such series, and at any time
there shall be only one Trustee with respect to the Securities of any
particular series.


 


26














 


Section 6.11                                Acceptance of
Appointment By Successor.


 


(a)                                  In case of the
appointment hereunder of a successor trustee with respect to all Securities,
every such successor trustee so appointed shall execute, acknowledge and
deliver to the Company, the Guarantors (if applicable) and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company, or, if applicable, any 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, if applicable, any 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 which the appointment of such successor trustee
relates, (2) 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, 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 that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; 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, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, 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, any Guarantor (if
applicable) or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by
such Supplemental Indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor trustee relates.


 


(c)                                  Upon request of
any such successor trustee, the Company and, if applicable, the Guarantors,
shall execute any and all instruments for more fully and certainly 


 


27

















 


vesting in and confirming to such successor trustee
all such 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.


 


(e)                                  Upon acceptance
of appointment by a successor trustee as provided in this Section, the Company
shall transmit notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the
expense of the Company.


 


Section 6.12                                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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be qualified under the provisions of Section 6.08
and eligible under the provisions of Section 7.09, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.


 


Section 6.13                                Preferential
Collection of Claims Against the Company.  The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent
included therein.


 


ARTICLE VII


CONCERNING THE
SECURITYHOLDERS


 


Section 7.01                                Evidence of
Action by Securityholders. 
Whenever in this Indenture it is provided that the holders of a majority
or specified percentage in aggregate principal amount of the Securities of a
particular series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of
such majority or specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Securities of that series in Person or by agent or
proxy appointed in writing.


 


If the Company shall solicit
from the Securityholders of any series any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company may, at its
option, as evidenced by an Officers’ Certificate, fix in advance a record date
for such series for the 


 


28

















 


determination of Securityholders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or
other action, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after the record date,
but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining
whether Securityholders of the requisite proportion of Outstanding Securities
of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization, agreement or
consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.


 


Section 7.02                                Proof of
Execution by Securityholders.  Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will
not require notarization) or his agent or proxy and proof of the holding by any
Person of any of the Securities shall be sufficient if made in the following
manner:


 


(a)                                  The fact and
date of the execution by any such Person of any instrument may be proved in any
reasonable manner acceptable to the Trustee.


 


(b)                                 The ownership
of Securities shall be proved by the Security Register of such Securities or by
a certificate of the Security Registrar thereof.


 


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


 


Section 7.03                                Who May be
Deemed Owners.  Prior to
the due presentment for registration of transfer of any Security, the Company,
the Guarantors (if applicable), the Trustee, any Paying Agent and any Security
Registrar may deem and treat the Person in whose name such Security shall be
registered upon the books of the Company as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice
of ownership or writing thereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the
principal of (and premium, if any) and (subject to Section 2.03) interest
on such Security and for all other purposes; and neither the Company nor the
Trustee nor any Paying Agent nor any Security Registrar shall be affected by
any notice to the contrary.


 


Section 7.04                                Certain
Securities Owned by Company Disregarded.  In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series have
concurred in any direction, consent or waiver under this Indenture, the
Securities of that series that are owned by the Company, or, if applicable, any
Guarantor, or any other obligor on the Securities of that series or by any
Person directly or indirectly controlling or controlled by or under common
control with the Company, or, if applicable, any Guarantor, or any other
obligor on the Securities of that series shall be disregarded and deemed not to
be Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities of 


 


29

















 


such series that the Trustee actually knows
are so owned shall be so disregarded. The Securities so owned that have been
pledged in good faith may be regarded as Outstanding for the purposes of this
Section, if the pledgee shall establish to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, or, if applicable, any
Guarantor, or any such other obligor. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.


 


Section 7.05                                Actions Binding
on Future Securityholders.  At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action, any holder
of a Security of that series that is shown by the evidence to be included in
the Securities the holders of which have consented to such action may, by
filing written notice with the Trustee, and upon proof of holding as provided
in Section 7.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the holders of the majority or percentage in aggregate principal
amount of the Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Securities of that series.


 


ARTICLE VIII


SUPPLEMENTAL INDENTURES


 


Section 8.01                                Supplemental
Indentures Without the Consent of Securityholders.  In addition to any Supplemental Indenture
otherwise authorized by this Indenture, the Company, the Guarantors and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect), without the consent of the
Securityholders, for one or more of the following purposes:


 


(a)                                  to cure any
ambiguity, defect or inconsistency herein or in the Securities of any series;


 


(b)                                 to comply with Article Ten;


 


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


 


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


 


30

















 


(e)                                  to add to,
delete from or revise the conditions, limitations and restrictions on the
authorized amount, terms, purposes of issue, authentication and delivery of
Securities, as herein set forth;


 


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


 


(g)                                 to provide for
the issuance of and establish the form and terms and conditions of the
Securities of any series as provided in Section 2.01, to establish the
form of any certifications required to be furnished pursuant to the terms of
this Indenture or any series of Securities, or to add to the rights of the
holders of any series of Securities; or


 


(h)                                 to add
Securities Guarantee and cause any Person to become a Guarantor, and/or
evidence the succession of another Person to a Guarantor and the assumption by
any such successor of the Securities Guarantee of Guarantor herein and, to the
extent applicable, endorsed Company Securities of any series; or


 


(i)                                     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;
provided that any such action shall 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.


 


The Trustee is hereby
authorized to join with the Company and any Guarantors in the execution of any
such Supplemental Indenture, and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such Supplemental Indenture that affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


Any Supplemental Indenture
authorized by the provisions of this Section may be executed by the
Company and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of Section 8.02.


 


Section 8.02                                Supplemental
Indentures With Consent of Securityholders.  With the consent (evidenced as provided in Section 7.01)
of the holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such Supplemental Indenture or indentures
at the time Outstanding, the Company, and if applicable, the Guarantors, when
authorized by Board Resolutions, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any Supplemental Indenture or of
modifying in any manner not covered by Section 8.01 the rights of the
holders of the Securities of such series under this Indenture; provided,
however, that no such Supplemental Indenture shall, without the consent of the
holders of each Security then Outstanding and affected thereby, (i) extend
the fixed maturity of any Securities of any series, or reduce the principal
amount thereof, or reduce the rate of interest thereon, or reduce any premium
payable upon the redemption thereof, (ii) reduce the aforesaid percentage
of Securities, 


 


31

















 


the holders of which are required to consent
to any such Supplemental Indenture, or (iii) release any Guarantor from
any of its obligations under its Securities Guarantee or this Indenture..


 


It shall not be necessary
for the consent of the Securityholders of any series affected thereby under
this Section to approve the particular form of any proposed Supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.


 


Section 8.03                                Effect of
Supplemental Indentures.  Upon
the execution of any Supplemental Indenture pursuant to the provisions of this Article or
of Section 9.01, this Indenture shall, with respect to such series, be and
be deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company, the Guarantors (if applicable), and the
holders of Securities of the series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.


 


Section 8.04                                Securities
Affected by Supplemental Indentures.  Securities of any series affected by a
Supplemental Indenture, authenticated and delivered after the execution of such
Supplemental Indenture pursuant to the provisions of this Article or of Section 9.01,
may bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such Supplemental Indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such Supplemental Indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
that series then Outstanding.


 


Section 8.05                                Execution of
Supplemental Indentures.  Upon
the request of the Company, accompanied by Board Resolutions authorizing the
execution of any such Supplemental Indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders required to consent
thereto as aforesaid, the Trustee shall join with the Company, and if
applicable, any Guarantors, in the execution of such Supplemental Indenture
unless such Supplemental Indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion but shall not be obligated to enter into such Supplemental
Indenture. The Trustee, subject to the provisions of Section 6.01, may
receive an Opinion of Counsel as conclusive evidence that any Supplemental
Indenture executed pursuant to this Article is authorized or permitted by,
and conforms to, the terms of this Article and that it is proper for the
Trustee under the provisions of this Article to join in the execution
thereof; provided, however, that such Opinion of Counsel need not be provided
in connection with the execution of a Supplemental Indenture that establishes
the terms of a series of Securities pursuant to Section 2.01 hereof.


 


Promptly after the execution
by the Company, and if applicable, any Guarantors, and the Trustee of any
Supplemental Indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such Supplemental Indenture, to the
Securityholders of all series affected thereby as 


 


32

















 


their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such Supplemental Indenture.


 


ARTICLE IX


SUCCESSOR ENTITY


 


Section 9.01                                Company May Consolidate,
Etc.  Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of the Company or any Guarantor with or into any other Person (whether or not
affiliated with the Company) or successive consolidations or mergers in which
the Company or any Guarantor; or their successor or successors shall be a party
or parties, or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company, or any Guarantor, or their
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
the Company, and, if applicable, the Guarantors, hereby covenants and agrees
that, upon any such consolidation or merger (in each case, if the Company or
the Guarantor, as the case may be, is not the survivor of such transaction),
sale, conveyance, transfer or other disposition, the due and punctual payment
of the principal of (premium, if any) and interest on all of the Securities of
all series in accordance with the terms of each series, according to their
tenor, and the due and punctual performance and observance of all the covenants
and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, or guaranteed, as the case
may be, if applicable, in the case of a Guarantor, by Supplemental Indenture
(which shall conform to the provisions of the Trust Indenture Act as then in
effect) satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company,
or a Guarantor, as the case may be, shall have been merged, or by the entity
which shall have acquired such property.


 


Section 9.02                                Successor
Entity Substituted.


 


(a)                                  In case of any
such consolidation, merger, sale, conveyance, transfer or other disposition and
upon the assumption by the successor entity by Supplemental Indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
due and punctual payment of the principal of (and premium, if any) and interest
on all of the Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Securities pursuant to Section 2.01
to be performed by the Company with respect to each series, such successor
entity shall succeed to and be substituted for the Company with the same effect
as if it had been named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.


 


(b)                                 In case of any
such consolidation, merger, sale, conveyance, transfer or other disposition,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.


 


33

















 


(c)                                  Nothing
contained in this Article shall apply to limit or impose any requirements
upon the consolidation or merger of any Person into the Company or a Guarantor
where the Company or the Guarantor, as the case may be, is the survivor of such
transaction, or the acquisition by the Company or a Guarantor, by purchase or
otherwise, of all or any part of the property of any other Person (whether or
not affiliated with the Company).


 


Section 9.03                                Evidence of
Consolidation, Etc. to Trustee.  The Trustee, subject to the provisions of Section 6.01,
may receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.


 


ARTICLE X


SATISFACTION AND DISCHARGE


 


Section 10.01                          Satisfaction
and Discharge of Indenture.  If at any time: (a) the Company shall
have delivered to the Trustee for cancellation all Securities of a series
theretofore authenticated (other than any Securities that have been destroyed,
lost or stolen and that have been replaced or paid as provided in Section 2.06)
and Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the
Company (and thereupon repaid to the Company or discharged from such trust, as
provided in Section 10.05); or (b) all such Securities of a
particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company or any Guarantor shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations or a combination thereof, 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 at maturity or
upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.03, 2.05,
2.06, and 6.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 6.06 and 10.05, that shall survive
to such date and thereafter, and the Trustee, on demand of the Company and at
the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.


 


Section 10.02                          Discharge of
Obligations.  If at any
time all such Securities of a particular series not heretofore delivered to the
Trustee for cancellation or that have not become due and payable as described
in Section 10.01 shall have been paid by the Company or any Guarantor by
depositing irrevocably with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient to pay at maturity or upon redemption all
such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company or any Guarantor shall also pay or cause to be paid
all other 


 


34

















 


sums payable hereunder by the Company with
respect to such series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee, the
obligations of the Company and the Guarantors under this Indenture with respect
to such series shall cease to be of further effect except for the provisions of
Sections 2.03, 2.05, 2.06, 6.06, 6.10 and 10.05 hereof that shall survive
until such Securities shall mature and be paid. Thereafter, Sections 6.06
and 10.05 shall survive.


 


Section 10.03                          Deposited
Moneys to be Held in Trust.  All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 10.01 or 10.02 shall be
held in trust and shall be available for payment as due, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent), to the holders of the particular series of Securities for the payment
or redemption of which such moneys or Governmental Obligations have been
deposited with the Trustee.


 


Section 10.04                          Payment of
Moneys Held by Paying Agents.  In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations then held by
any Paying Agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys or Governmental
Obligations.


 


Section 10.05                          Repayment to
Company.  Any moneys or Governmental
Obligations deposited with any Paying Agent or the Trustee, or then held by the
Company, in trust for payment of principal of (and premium, if any) or interest
on the Securities of a particular series that are not applied but remain
unclaimed by the holders of such Securities for at least two years after the date
upon which the principal of (and premium, if any) or interest on such
Securities shall have respectively become due and payable, shall be repaid to
the Company or (if then held by the Company) shall be discharged from such
trust; and thereupon the Paying Agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental Obligations,
and the holder of any of the Securities entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.


 


ARTICLE XI


DEFEASANCE AND COVENANT
DEFEASANCE


 


Section 11.01                          Applicability
of Article; Company’s Option to Effect Defeasance or Covenant Defeasance.  If, pursuant to Section 2.01, provision
is made for either or both of (a) Defeasance of the Securities of or
within a series under Section 11.02 or (b) Covenant Defeasance of the
Securities of or within a series under Section 11.03, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be
specified pursuant to Section 2.01 with respect to any Securities), shall
be applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to
such Securities and any coupons appertaining thereto, elect to have Section 11.02
(if applicable) or Section 11.03 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon compliance
with the conditions set forth below in this Article.


 


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Section 11.02                          Defeasance and
Discharge.  Upon the
Company’s exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company shall be deemed to
have been discharged from its obligations with respect to such Outstanding
Securities and any coupons appertaining thereto on the date the conditions set
forth in Section 11.04 are satisfied (hereinafter, “Defeasance”).
For this purpose, such Defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by such
Outstanding Securities and any coupons appertaining thereto, which shall thereafter
be deemed to be “Outstanding” only for the purposes of Section 11.05 and
the other Sections of this Indenture referred to in clauses (A) and (B) below,
and to have satisfied all of its other obligations under such Securities and
any coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, 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 11.04 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 obligations with respect to such
Securities under Sections 2.05, 2.06, and 6.05, and the Company’s
obligations under Section 7.06 hereof (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article.
Subject to compliance with this Article XII, the Company may exercise its
option under this Section notwithstanding the prior exercise of its option
under Section 11.03 with respect to such Securities and any coupons
appertaining thereto.


 


Section 11.03                          Covenant
Defeasance.  Upon the
Company’s exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company shall be released
from its obligations under any other covenant contained herein or in any
indenture supplemental hereto, with respect to such Outstanding Securities and
any coupons appertaining thereto on and after the date the conditions set forth
in Section 11.04 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 such other applicable 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 may omit to comply with and shall have no
liability in respect of any term, 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 5.01(a)(3) 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 shall
be unaffected thereby.


 


Section 11.04                          Conditions to
Defeasance or Covenant Defeasance.  The following shall be the conditions to
application of Section 11.02 or Section 11.03 to any Outstanding
Securities of or within a series and any coupons appertaining thereto:


 


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(a)                                  The Company
shall irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.09 who shall
agree to comply with the provisions of this Article XI 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, currencies or currency unit in which such Securities
and any coupons appertaining thereto are then specified as payable at maturity,
or (2) Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency, currencies or
currency unit in which such Securities and coupons appertaining thereto are
then specified as payable at maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than 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
any case, in an amount, sufficient, without consideration of any reinvestment
of such principal and interest, 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, on such Outstanding
Securities and any coupons appertaining thereto on the 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.


 


(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 is a party or by which it is bound.


 


(c)                                  No Event of
Default or event which with notice or lapse of time or both would become an
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 5.01(a)(4) and (5) 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 11.02, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of execution of this Indenture, there has been a
change in the applicable 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 Federal income tax purposes as a result of such Defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Defeasance had not occurred.


 


(e)                                  In the case of
an election under Section 11.03, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such
Outstanding 


 


37

















 


Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such Covenant Defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred.


 


(f)                                    The Company
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 11.02
or the Covenant Defeasance under Section 11.03 (as the case may be) have
been complied with and an Opinion of Counsel to the effect that either (i) as
a result of a deposit pursuant to subsection (a) above and the
related exercise of the Company’s option under Section 11.02 or Section 11.03
(as the case may be), registration is not required under the Investment Company
Act of 1940, as amended, by the Company, with respect to the trust funds representing
such deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.


 


(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 in connection
therewith pursuant to Section 2.01.


 


(h)                                 The payment of
amounts payable to the Trustee pursuant to this Indenture shall be paid or provided
for to the reasonable satisfaction of the Trustee.


 


Section 11.05                          Deposited Money
and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.  Subject to the provisions of the last
paragraph of Section 6.05, all money and Government Obligations (or other
property as may be provided pursuant to Section 2.01) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 11.05, the “Trustee”) pursuant
to Section 11.04 in respect of any Outstanding Securities of any series
and any coupons appertaining thereto shall be held in 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 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, but such money need not be
segregated from other funds except to the extent required by law.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed
against the Government Obligations deposited pursuant to Section 11.04 or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of such
Outstanding Securities and any coupons appertaining thereto.


 


Anything in this Article to
the contrary notwithstanding, subject to Section 6.06, the Trustee shall
deliver or pay to the Company from time to time upon Company’s request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 11.04 which, in the opinion of a
nationally recognized firm of independent 


 


38

















 


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.


 


ARTICLE XII


IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS


 


Section 12.01                          No Recourse.  No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company, any Guarantor or of any predecessor or successor Person,
either directly or through the Company, any Guarantor or any such predecessor
or successor Person, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company, any Guarantor or
of any predecessor or successor Person, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Securities.


 


ARTICLE XIII


MISCELLANEOUS PROVISIONS


 


Section 13.01                          Effect on
Successors and Assigns.  All
the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company and a Guarantor, as the case may be,
shall bind its successors and assigns, whether so expressed or not.


 


Section 13.02                          Actions by
Successor.  Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company or a Guarantor
shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company or the Guarantor, as the case may
be.


 


Section 13.03                          Notices.  Notices to holders of bearer debt securities
will be given by publication at least once in a daily newspaper in New York,
New York and in London, England and in other cities as may be specified in the
bearer debt securities and will be mailed to those persons whose names and
addresses were previously filed with the applicable trustee, within the time
prescribed for the giving of the notice. Notices to holders of registered debt
securities will be given by mail to the addresses of such holders as they
appear in the security register.  Any 


 


39

















 


notice, election, request or demand by the
Company, any Guarantor or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.


 


Section 13.04                          Governing Law.  This Indenture and each Security and, if
applicable, each Securities Guarantee, shall be deemed to be a contract made
under the internal laws of the State of [       ],
and for purposes shall be construed in accordance with the laws of said State.


 


Section 13.05                          Compliance
Certificates and Opinions.


 


(a)                                  Upon any
application or demand by the Company or any Guarantor to the Trustee to take
any action under any of the provisions 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 provided for in this
Indenture relating to the proposed action have been complied with, an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, and, to the extent required, a certificate
or opinion of an accountant, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.


 


(b)                                 Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant in this
Indenture shall include (1) a statement that the Person making such certificate
or opinion has read such covenant or condition; (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 such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and (4) a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.


 


(c)                                  The Company
shall furnish to the Trustee, on [       ]
of each year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of such obligor’s compliance with all conditions and covenants under
this Indenture. For purposes of this subsection, such compliance shall be
determined without regard to any period of grace or requirement of notice provided
hereunder.


 


Section 13.06                          Payments on
Business Days.  Except as
provided pursuant to Section 2.01 pursuant to a Board Resolution, and as
set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of
interest or principal of any Security or the date of redemption of any Security
shall not be a Business Day, then payment of interest or principal (and
premium, if any) may be made on the next succeeding Business Day with the same
force and effect as if made on the nominal date of maturity or redemption, and
no interest shall accrue for the period after such nominal date.


 


40

















 


Section 13.07                          Conflict with
Trust Indenture Act.  If and to
the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.


 


Section 13.08                          Counterparts.  This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.


 


Section 13.09                          Separability.  In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.


 


Section 13.10                          Assignment.  The Company will have the right at all times
to assign any of its rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company, provided that, in the event of
any such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.


 


ARTICLE XIV


SUBORDINATION OF SECURITIES


 


Section 14.01                          Subordination Terms.  The payment by the Company of the principal
of (and premium, if any) and interest on any series of Securities issued
hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such Securities.


 


ARTICLE XV


GUARANTEE OF SECURITIES


 


Section 15.01                          Securities
Guarantee.


 


(a)                                  Subject to the
other provisions of this Article XV, each of the Guarantors hereby jointly
and severally, guarantees to each holder of a Security of each series to which
this Article XV has been made applicable as provided in Section 2.01(a)(17)
(the Securities of such series being referred to herein as the “Guaranteed
Securities”) (which Security has been authenticated and delivered by the
Trustee), and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Guaranteed Securities,
the obligations of the Company hereunder or thereunder, that:


 


(i)                                     the principal
of, premium, if any, and interest on the Guaranteed Securities will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the
Guaranteed Securities, if any, if lawful, and all other obligations of the
Company to the 


 


41

















 


holders of Guaranteed
Securities, or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and


 


(ii)                                  in case of any
extension of time of payment or renewal of any Guaranteed Securities or any of
such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.


 


Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantors
will be jointly and severally obligated top pay the same immediately. Each
Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.


 


(b)                                 To the extent
permissible under applicable law, the obligations of the Guarantors under this
Securities Guarantee are unconditional, irrespective of the validity,
regularity or enforceability of the Guaranteed Securities or this Indenture,
the absence of any action to enforce the same, any waiver or consent by any
holder of the Guaranteed Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. To the extent permitted by
applicable law, each 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,
protest, notice and all demands whatsoever and covenant that this Securities
Guarantee will not be discharged except by complete performance of the
obligations contained in the Guaranteed Securities and this Indenture.


 


(c)                                  If any holder
or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors or any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors, any amount paid by
either to the Trustee or such holder, this Securities Guarantee, to the extent
theretofore discharged, will be reinstated in full force and effect.


 


(d)                                 Each Guarantor
agrees that it will not be entitled to any right of subrogation in relation to
the holders in respect to any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. Each Guarantor further agrees that,
to the extent permitted by applicable law, as between the Guarantors, on the
one hand, and the holders of Guaranteed Securities and the Trustee, on the
other hand, (i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article V hereof for the purposes of this
Securities Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (2) in the event of any declaration of acceleration of such obligations
as provided in Article V hereof, such obligations (regardless of whether
due and payable) will forthwith become due and payable by the Guarantors for
the purpose of this Securities Guarantee. The Guarantors will have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Securities Guarantee.


 


42

















 


Section 15.02                          Limitation on
Guarantor Liability.  Each
Guarantor, and by its acceptance of Guaranteed Securities, each holder thereof,
hereby confirms that it is the intention of all such parties that the
Securities Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Securities Guarantee. To effectuate the foregoing
intention, the Trustee, to the extent permitted under applicable law, the
holders and each Guarantor hereby irrevocably agree that the obligations of
such Guarantor will be limited to the maximum amount that will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
such Guarantor that are relevant under such laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article XV, result in the obligations of such
Guarantor under its Securities Guarantee not constituting a fraudulent transfer
or conveyance.


 


Section 15.03                          Execution and
Delivery of Securities Guarantee Notation.  To evidence its Securities Guarantee set forth
in Section 15.01 hereof, each Guarantor hereby agrees that a notation of
such Securities Guarantee substantially in the form established pursuant to a
Board Resolution or in a Supplemental Indenture, will be endorsed by an officer
of such Guarantor on each Guaranteed Security authenticated and delivered by
the Trustee and that this Indenture will be executed on behalf of such
Guarantor by one of its officers.


 


Each Guarantor hereby agrees
that its Securities Guarantee set forth in Section 15.01 hereof will
remain in full force and effect notwithstanding any failure to endorse on each
Guaranteed Security a notation of such Securities Guarantee.


 


If an officer whose
signature is on this Indenture or on the Securities Guarantee no longer holds
that office at the time the Trustee authenticates the Guaranteed Security on
which a Securities Guarantee is endorsed, the Securities Guarantee will be
valid nevertheless.


 


The delivery of any
Guaranteed Security by the Trustee, after the authentication thereof hereunder,
will constitute due delivery of the Securities Guarantee of such Guaranteed
Security set froth in this Indenture on behalf of the Guarantors.


 


43

















 


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


 


	
   

  	
  VENOCO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  [Name of any Guarantor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                                      ,
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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