exv4w5






EXHIBIT 4.5




 

 






 




[GRAPHIC PACKAGING HOLDING COMPANY]




[GRAPHIC PACKAGING INTERNATIONAL, INC.]



and


U.S. BANK NATIONAL ASSOCIATION,


Trustee




INDENTURE


Dated as of                ,           




 






Providing for Issuance of Subordinated Debt Securities in Series




 




 

 







 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE I Definitions and Other Provisions of General Application	 	 	1	 
	 	 	 	 	 
	 	 	 	 
	     Section 1.01	 	Definitions
	 	 	1	 
	     Section 1.02	 	Compliance Certificates and Opinions
	 	 	10	 
	     Section 1.03	 	Form of Documents Delivered to Trustee
	 	 	10	 
	     Section 1.04	 	Acts of Securityholders
	 	 	11	 
	     Section 1.05	 	Notices, etc., to Trustee and Company
	 	 	12	 
	     Section 1.06	 	Notices to Securityholders; Waiver
	 	 	13	 
	     Section 1.07	 	Conflict with Trust Indenture Act
	 	 	13	 
	     Section 1.08	 	Effect of Headings and Table of Contents
	 	 	13	 
	     Section 1.09	 	Successors and Assigns
	 	 	13	 
	     Section 1.10	 	Separability Clause
	 	 	13	 
	     Section 1.11	 	Benefits of Indenture
	 	 	13	 
	     Section 1.12	 	Governing Law
	 	 	14	 
	     Section 1.13	 	Counterparts
	 	 	14	 
	     Section 1.14	 	Judgment Currency
	 	 	14	 
	     Section 1.15	 	Legal Holidays
	 	 	14	 
	     Section 1.16	 	Agent for Service; Submission to Jurisdiction; Waiver of Immunities and Jury Trial
	 	 	14	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE II Security Forms	 	 	15	 
	 	 	 	 	 
	 	 	 	 
	     Section 2.01	 	Forms Generally
	 	 	15	 
	     Section 2.02	 	Forms of Securities
	 	 	16	 
	     Section 2.03	 	Form of Trustee’s Certificate of Authentication
	 	 	16	 
	     Section 2.04	 	Securities Issuable in the Form of a Global Security
	 	 	16	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE III The Securities	 	 	18	 
	 	 	 	 	 
	 	 	 	 
	     Section 3.01	 	General Title; General Limitations; Issuable in Series; Terms of Particular Series
	 	 	18	 
	     Section 3.02	 	Denominations
	 	 	21	 
	     Section 3.03	 	Execution, Authentication and Delivery and Dating
	 	 	21	 
	     Section 3.04	 	Temporary Securities
	 	 	22	 
	     Section 3.05	 	Registration, Transfer and Exchange
	 	 	23	 
	     Section 3.06	 	Mutilated, Destroyed, Lost and Stolen Securities
	 	 	24	 
	     Section 3.07	 	Payment of Interest; Interest Rights Preserved
	 	 	25	 
	     Section 3.08	 	Persons Deemed Owners
	 	 	26	 
	     Section 3.09	 	Cancellation
	 	 	26	 
	     Section 3.10	 	CUSIP and CINS Numbers
	 	 	26	 
	     Section 3.11	 	Computation of Interest
	 	 	26	 
	     Section 3.12	 	Delayed Issuance of Securities
	 	 	26	 






     i     




 









 








	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE IV Satisfaction and Discharge; Defeasance	 	 	27	 
	 	 	 	 	 
	 	 	 	 
	     Section 4.01	 	Satisfaction and Discharge of Indenture
	 	 	27	 
	     Section 4.02	 	Application of Trust Money
	 	 	28	 
	     Section 4.03	 	Defeasance Upon Deposit of Funds or Government Obligations
	 	 	29	 
	     Section 4.04	 	Reinstatement
	 	 	31	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE V Remedies	 	 	31	 
	 	 	 	 	 
	 	 	 	 
	     Section 5.01	 	Events of Default
	 	 	31	 
	     Section 5.02	 	Acceleration of Maturity; Rescission and Annulment
	 	 	32	 
	     Section 5.03	 	Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	34	 
	     Section 5.04	 	Trustee May File Proofs of Claim
	 	 	34	 
	     Section 5.05	 	Trustee May Enforce Claims Without Possession of Securities
	 	 	35	 
	     Section 5.06	 	Application of Money Collected
	 	 	35	 
	     Section 5.07	 	Limitation on Suits
	 	 	36	 
	     Section 5.08	 	Unconditional Right of Securityholders to Receive Principal, Premium and Interest
	 	 	36	 
	     Section 5.09	 	Restoration of Rights and Remedies
	 	 	36	 
	     Section 5.10	 	Rights and Remedies Cumulative
	 	 	37	 
	     Section 5.11	 	Delay or Omission Not Waiver
	 	 	37	 
	     Section 5.12	 	Control by Securityholders
	 	 	37	 
	     Section 5.13	 	Waiver of Past Defaults
	 	 	37	 
	     Section 5.14	 	Undertaking for Costs
	 	 	38	 
	     Section 5.15	 	Waiver of Stay or Extension Laws
	 	 	38	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VI The Trustee	 	 	38	 
	 	 	 	 	 
	 	 	 	 
	     Section 6.01	 	Certain Duties and Responsibilities
	 	 	38	 
	     Section 6.02	 	Notice of Defaults
	 	 	39	 
	     Section 6.03	 	Certain Rights of Trustee
	 	 	40	 
	     Section 6.04	 	Not Responsible for Recitals or Issuance of Securities
	 	 	41	 
	     Section 6.05	 	May Hold Securities
	 	 	41	 
	     Section 6.06	 	Money Held in Trust
	 	 	41	 
	     Section 6.07	 	Compensation and Reimbursement
	 	 	41	 
	     Section 6.08	 	Disqualification; Conflicting Interests
	 	 	42	 
	     Section 6.09	 	Corporate Trustee Required; Eligibility
	 	 	42	 
	     Section 6.10	 	Resignation and Removal
	 	 	43	 
	     Section 6.11	 	Acceptance of Appointment by Successor
	 	 	44	 
	     Section 6.12	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	45	 






     ii     




 









 








	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	     Section 6.13	 	Preferential Collection of Claims Against Company
	 	 	45	 
	     Section 6.14	 	Appointment of Authenticating Agent
	 	 	45	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VII Securityholders’ Lists and Reports by Trustee and Company	 	 	47	 
	 	 	 	 	 
	 	 	 	 
	     Section 7.01	 	Company to Furnish Trustee Names and Addresses of Securityholders
	 	 	47	 
	     Section 7.02	 	Preservation of Information; Communications to Securityholders
	 	 	47	 
	     Section 7.03	 	Reports by Trustee
	 	 	48	 
	     Section 7.04	 	Reports by Company
	 	 	49	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VIII Consolidation, Merger, Conveyance or Transfer	 	 	49	 
	 	 	 	 	 
	 	 	 	 
	     Section 8.01	 	Consolidation, Merger, Conveyance or Transfer on Certain Terms
	 	 	49	 
	     Section 8.02	 	Successor Person Substituted
	 	 	50	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IX Supplemental Indentures	 	 	50	 
	 	 	 	 	 
	 	 	 	 
	     Section 9.01	 	Supplemental Indentures Without Consent of Securityholders
	 	 	50	 
	     Section 9.02	 	Supplemental Indentures With Consent of Securityholders
	 	 	51	 
	     Section 9.03	 	Subordination Unimpaired
	 	 	53	 
	     Section 9.04	 	Execution of Supplemental Indentures
	 	 	53	 
	     Section 9.05	 	Effect of Supplemental Indentures
	 	 	53	 
	     Section 9.06	 	Conformity with Trust Indenture Act
	 	 	53	 
	     Section 9.07	 	Reference in Securities to Supplemental Indentures
	 	 	53	 
	     Section 9.08	 	Notice of Supplemental Indentures
	 	 	54	 
	     Section 9.09	 	Revocation and Effect of Consents, Waivers and Actions
	 	 	54	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE X Covenants	 	 	54	 
	 	 	 	 	 
	 	 	 	 
	     Section 10.01	 	Payment of Principal, Premium and Interest
	 	 	54	 
	     Section 10.02	 	Maintenance of Office or Agency
	 	 	54	 
	     Section 10.03	 	Money for Security Payments to Be Held in Trust
	 	 	55	 
	     Section 10.04	 	Statement as to Compliance
	 	 	56	 
	     Section 10.05	 	Legal Existence
	 	 	56	 
	     Section 10.06	 	Waiver of Certain Covenants
	 	 	56	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XI Redemption of Securities	 	 	57	 
	 	 	 	 	 
	 	 	 	 
	     Section 11.01	 	Applicability of Article
	 	 	57	 






     iii     




 









 








	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	     Section 11.02	 	Election to Redeem; Notice to Trustee
	 	 	57	 
	     Section 11.03	 	Selection by Trustee of Securities to Be Redeemed
	 	 	57	 
	     Section 11.04	 	Notice of Redemption
	 	 	58	 
	     Section 11.05	 	Deposit of Redemption Price
	 	 	59	 
	     Section 11.06	 	Securities Payable on Redemption Date
	 	 	59	 
	     Section 11.07	 	Securities Redeemed in Part
	 	 	60	 
	     Section 11.08	 	Provisions with Respect to Any Sinking Funds
	 	 	60	 
	     Section 11.09	 	Rescission of Redemption
	 	 	61	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XII Subordination of Securities	 	 	61	 
	 	 	 	 	 
	 	 	 	 
	     Section 12.01	 	Agreement of Subordination
	 	 	61	 
	     Section 12.02	 	Payments to Securityholders
	 	 	62	 
	     Section 12.03	 	Subrogation of Securities
	 	 	63	 
	     Section 12.04	 	Authorization by Securityholders
	 	 	64	 
	     Section 12.05	 	Notice to Trustee
	 	 	64	 
	     Section 12.06	 	Trustee’s Relation to Senior Indebtedness
	 	 	65	 
	     Section 12.07	 	No Impairment of Subordination
	 	 	66	 
	     Section 12.08	 	Rights of Trustee
	 	 	66	 
	     Section 12.09	 	Applicable to Paying Agents
	 	 	66	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XIII Guarantees	 	 	66	 
	 	 	 	 	 
	 	 	 	 
	     Section 13.01	 	Guarantees
	 	 	66	 






     iv     




 









 






 


Table Showing Reflection in Indenture of Certain Provisions

of Trust Indenture Act of 1939,

as amended by the Trust Indenture Reform Act of 1990

 





Reflected in Indenture




	 	 	 	 	 
	Trust Indenture Act Section

    	 	Indenture Section

 
	 	 	 
	 	 
	     § 310 	 	(a)(1)
	 	6.09
	 	 	(a)(2)
	 	6.09
	 	 	(a)(3)
	 	Not Applicable
	 	 	(a)(4)
	 	Not Applicable
	 	 	(a)(5)
	 	6.09
	 	 	(b)
	 	6.08
	 	 	    
	 	 
	 	 	 
	 	 
	     § 311 	 	(a)
	 	6.13(a)
	 	 	(b)
	 	6.13(b)
	 	 	(b)(2)
	 	7.03(a)
	 	 	 
	 	7.03(b)
	 	 	    
	 	 
	 	 	 
	 	 
	     § 312 	 	(a)
	 	7.01
	 	 	 
	 	7.02(a)
	 	 	(b)
	 	7.03(b)
	 	 	(c)
	 	7.02(c)
	 	 	    
	 	 
	 	 	 
	 	 
	     § 313 	 	(a)
	 	7.03(a)
	 	 	(b)
	 	7.03(b)
	 	 	(c)
	 	7.03(a)
	  	 	 
	 	7.03(b)
	 	 	(d)
	 	7.03(c)
	 	 	    
	 	 
	 	 	 
	 	 
	     § 314 	 	(a)(1)
	 	7.04
	 	 	(a)(2)
	 	7.04
	 	 	(a)(3)
	 	7.04
	 	 	(a)(4)
	 	10.04
	 	 	(b)
	 	Not Applicable
	 	 	(c)(1)
	 	1.02
	 	 	(c)(2)
	 	1.02
	 	 	(c)(3)
	 	Not Applicable
	 	 	(d)
	 	Not Applicable
	 	 	(e)
	 	1.02
	 	 	 
	 	 
	 	 	    
	 	 
	     § 315 	 	(a)
	 	6.01(a)
	 	 	 
	 	6.01(c)
	 	 	(b)
	 	6.02
	 	 	 
	 	7.03(a)
	 	 	(c)
	 	6.01(b)






     i     




 









 








	 	 	 	 	 
	 	 	(d)
	 	6.01
	 	 	(d)(1)
	 	6.01(a)
	 	 	(d)(2)
	 	6.01(c)(2)
	 	 	(d)(3)
	 	6.01(c)(3)
	 	 	(e)
	 	5.14
	 	 	    
	 	 
	 	 	 
	 	 
	     § 316 	 	(a)
	 	1.01
	 	 	(a)(1)(A)
	 	5.02
	 	 	    
	 	5.12
	 	 	(a)(1)(B)
	 	5.13
	 	 	(a)(2)
	 	Not Applicable
	 	 	(b)
	 	5.08
	 	 	(c)
	 	1.04(d)
	 	 	    
	 	 
	 	 	 
	 	 
	     § 317 	 	(a)(1)
	 	5.03
	 	 	(a)(2)
	 	5.04
	 	 	(b)
	 	10.03
	 	 	    
	 	 
	 	 	 
	 	 
	     § 318 	 	(a)
	 	1.07








 




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





     Section 318(c) of the Trust Indenture Act provides that the provisions of Sections 310 to and
including 317 of the Trust Indenture Act are a part of and govern every qualified indenture,
whether or not physically contained therein.



     ii     




 









 








     THIS INDENTURE between [GRAPHIC PACKAGING HOLDING COMPANY] [GRAPHIC PACKAGING INTERNATIONAL,
INC.], a Delaware corporation (hereinafter called the “Company”) having its principal
office at 814 Livingston Court, Marietta, Georgia 30067, and U.S. BANK NATIONAL ASSOCIATION, as
trustee (hereinafter called the “Trustee”), is made and entered into as of                     ,           .



Recitals of the Company




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of its debentures, notes, bonds or other evidences of indebtedness, in an unlimited
aggregate principal amount, to be issued in one or more fully registered series.



     This Indenture is subject to the provisions of the Trust Indenture Act that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be governed by such
provisions.



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



Agreements of the Parties




     To set forth or to provide for the establishment of the terms and conditions upon which the
Securities are and are to be authenticated, issued and delivered, and in consideration of the
premises and the purchase of Securities by the Holders thereof, it is mutually agreed as follows,
for the equal and proportionate benefit of all Holders of the Securities or of a series thereof, as
the case may be:



ARTICLE I




Definitions and Other Provisions

of General Application




     Section 1.01 Definitions. For all purposes of this Indenture and of any indenture supplemental hereto, except as
otherwise expressly provided or unless the context otherwise requires:




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




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




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



 









 






and any accounting rules or interpretations promulgated by the Commission as are
generally accepted in the United States of America at the date of this Indenture; and




     (4) all references in this instrument to designated “Articles”, “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of this
instrument as originally executed. The words “herein”, “hereof” and “hereunder” and other
words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.



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



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



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



     “Authenticating Agent” means any Person authorized by the Company to authenticate
Securities under Section 6.14.



     “Board of Directors” means (i) the board of directors of the Company, (ii) any duly
authorized committee of such board, (iii) any committee of officers of the Company or (iv) any
officer of the Company acting, in the case of clauses (iii) or (iv), pursuant to authority granted
by the board of directors of the Company or any committee of such board.



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



     “Business Day” means, with respect to any series of Securities, unless otherwise
specified in a Board Resolution, in an indenture supplemental hereto or an Officer’s Certificate
with respect to a particular series of Securities, each day which is not a Saturday, Sunday or
other day on which banking institutions in the pertinent Place or Places of Payment or the city in
which the Corporate Trust Office is located are authorized or required by law or executive order to
be closed.



     “Closing Price” of the Common Stock or other Marketable Security, as the case may be,
shall mean the last reported sale price of such stock or other Marketable Security (regular way) as
shown on the Composite Tape of the NYSE (or, if such stock or other Marketable Security is not
listed or admitted to trading on the NYSE, on the principal national securities exchange on which
such stock or other Marketable Security is listed or admitted to trading, including the NASDAQ),
or, in case no such sale takes place on such day, the average of the closing bid and asked prices
on the NYSE (or, if such stock or other Marketable Security is not listed or admitted to trading on
the NYSE, on the principal national securities exchange on



2









 





which such stock or other Marketable Security is listed or admitted to trading, including the
NASDAQ), or if such stock or other Marketable Security is not so reported, the average of the
closing bid and asked prices as furnished by any member of the Financial Industry Regulatory
Authority, selected from time to time by the Company for that purpose.



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



     “Common Stock” shall mean the Common Stock, par value $0.01 per share, of Graphic
Packaging Holding Company authorized at the date of this Indenture as originally signed, or any
other class of stock resulting from successive changes or reclassifications of such Common Stock,
and in any such case including any shares thereof authorized after the date of this Indenture.



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



     “Company Request”, “Company Order” and “Company Consent” mean a
written request, order or consent, respectively, signed in the name of the Company by its Chairman
of the Board, President, Chief Executive Officer, Chief Financial Officer, Treasurer, Controller,
General Counsel, Secretary or any Vice President, and delivered to the Trustee.



     “Conversion Price” means, with respect to any series of Securities which are
convertible into Common Stock or other Marketable Securities, the price per share of Common Stock
or the price per designated unit of other Marketable Security at which the Securities of such
series are so convertible as set forth in the Board Resolution or indenture supplemental hereto
with respect to such series (or in any indenture supplemental hereto entered into pursuant to
Section 9.01(9) with respect to such series), as the same may be adjusted from time to time in
accordance with an indenture supplemental hereto.



     “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 1349 West Peachtree Street, NW, Two Midtown Plaza, Suite 1050, Atlanta,
Georgia 30309, Attn: Muriel Shaw.



     “Current Market Price” on any date shall mean the average of the daily Closing Prices
per share of Common Stock or of such other Marketable Securities for any 30 consecutive Trading
Days selected by the Company prior to the day in question, which 30 consecutive Trading Day period
shall not commence more than 45 Trading Days prior to the day in question.



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



     “Depository” means, unless otherwise specified by the Company pursuant to either
Section 2.04 or 3.01, with respect to Securities of any series issuable or issued as a Global
Security, The Depository Trust Company, New York, New York, or any successor thereto



3









 





registered as a clearing agency under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation.



     “Discharged” has the meaning specified in Section 4.03.



     “Event of Default” has the meaning specified in Article V.



     “Federal Bankruptcy Act” has the meaning specified in Section 5.01(5).



     “GAAP” means generally accepted accounting principles as such principles are in effect
in the United States as of the date of this Indenture.



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



     “Guarantee” means the guarantees specified in Section 13.01(a).



     “Guarantor” means any Person who guarantees any series of Securities issued hereunder
as specified in Section 13.01(a).



     “Holder”, when used with respect to any Security, means a Securityholder, which means
a Person in whose name a security is registered in the Security Register.



     “Indenture” or “this 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 pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by Section 3.01.



     “Interest”, with respect to the Securities, means interest on the Securities;
provided, that, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, the term means interest payable after Maturity.



     “Interest Payment Date”, when used with respect to any series of Securities, means the
Stated Maturity of any installment of interest on those Securities.



     “Marketable Security” means any common stock, debt security or other security of a
Person which is (or will, upon distribution thereof, be) listed on the NYSE, the American Stock
Exchange, NASDAQ or any other national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended, or approved for quotation in any system of



4









 





automated dissemination of quotations of securities prices in the United States or for which
there is a recognized market maker or trading market.



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



     “NASDAQ” shall mean the NASDAQ Global Select Market, the NASDAQ Global Market or the
NASDAQ Capital Market.



     “NYSE” shall mean the New York Stock Exchange, Inc.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board,
President, Chief Executive Officer, Chief Financial Officer, Treasurer, Controller, General
Counsel, Secretary or any Vice President, and delivered to the Trustee. Wherever this Indenture
requires that an Officers’ Certificate be signed also by a financial expert or an accountant or
other expert, such financial expert, accountant or other expert (except as otherwise expressly
provided in this Indenture) may be in the employ of the Company, and shall be acceptable to the
Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may (except as otherwise
expressly provided in this Indenture) be an employee of or of counsel to the Company, which is
delivered to the Trustee.



     “Original Issue Discount Security” means (i) any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of
the Maturity thereof, and (ii) any other security which is issued with “original issue discount”
within the meaning of Section 1273(a) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.



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




     (i) such Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;




     (ii) such Securities for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor reasonably
satisfactory to the Trustee has been made; and




     (iii) such Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, or which shall have been paid
pursuant to the terms of Section 3.06 (except with respect to any such Security as to



5









 






which proof satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding obligation of the
Company).



In determining whether the Holders of the requisite principal amount of such Securities Outstanding
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i)
the principal amount of any Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of the date of the
taking of such action upon a declaration of acceleration of the Maturity thereof, and (ii)
Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be Outstanding. In
determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer
assigned to the Corporate Trust Department of the Trustee knows to be owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to
act as owner with respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other obligor.



     “Paying Agent” means any Person authorized by the Company to pay the principal of (and
premium, if any) or interest on any Securities on behalf of the Company. The Company initially
authorizes the Trustee to act as Paying Agent for the Securities on its behalf. The Company may at
any time and from time to time authorize one or more Persons to act as Paying Agent in addition to
or in place of the Trustee with respect to any series of Securities issued under this Indenture.



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



     “Place of Payment” means with respect to any series of Securities issued hereunder the
city or political subdivision so designated with respect to the series of Securities in question in
accordance with the provisions of Section 3.01.



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



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



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



6









 





     “Redemption Rescission Event” shall mean the occurrence of (a) any general suspension
of trading in, or limitation on prices for, securities on the principal national securities
exchange on which shares of Common Stock or Marketable Securities are registered and listed for
trading (or, if shares of Common Stock or Marketable Securities are not registered and listed for
trading on any such exchange, in the over-the-counter market) for more than six-and-one-half
(6-1/2) consecutive trading hours, (b) any decline in either the Dow Jones Industrial Average or
the S&P 500 Index (or any successor index published by Dow Jones & Company, Inc. or S&P) by either
(i) an amount in excess of 10%, measured from the close of business on any Trading Day to the close
of business on the next succeeding Trading Day during the period commencing on the Trading Day
preceding the day notice of any redemption of Securities is given (or, if such notice is given
after the close of business on a Trading Day, commencing on such Trading Day) and ending at the
time and date fixed for redemption in such notice or (ii) an amount in excess of 15% (or if the
time and date fixed for redemption is more than 15 days following the date on which such notice of
redemption is given, 20%), measured from the close of business on the Trading Day preceding the day
notice of such redemption is given (or, if such notice is given after the close of business on a
Trading Day, from such Trading Day) to the close of business on any Trading Day at or prior to the
time and date fixed for redemption, (c) a declaration of a banking moratorium or any suspension of
payments in respect of banks by Federal or state authorities in the United States or (d) the
occurrence of an act of terrorism or commencement of a war or armed hostilities or other national
or international calamity directly or indirectly involving the United States which in the
reasonable judgment of the Company could have a material adverse effect on the market for the
Common Stock or Marketable Securities.



     “Regular Record Date” for the interest payable on any Security on any Interest Payment
Date means the date specified in such Security as the Regular Record Date.



     “Repayment Date”, when used with respect to any Security to be repaid, means the date
fixed for such repayment pursuant to such Security.



     “Repayment Price”, when used with respect to any Security to be repaid, means the
price at which it is to be repaid pursuant to such Security.



     “Required Currency”, when used with respect to any Security, has the meaning set forth
in Section 1.14.



     “Responsible Officer”, when used with respect to the Trustee, means any officer of the
Trustee with direct responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject. “Responsible Officer”,
when used with respect to the Company, means any of the Chairman of the Board, President, Chief
Executive Officer, Chief Financial Officer, Treasurer, Controller, General Counsel, Secretary or
any Vice President (or any equivalent of the foregoing officers).



     “S&P” means Standard & Poor’s Rating Service or any successor to the rating agency
business thereto.



7









 





     “Security” or “Securities” means any note or notes, bond or bonds, debenture
or debentures, or any other evidences of indebtedness, as the case may be, of any series
authenticated and delivered from time to time under this Indenture.



     “Security Register” shall have the meaning specified in Section 3.05.



     “Security Registrar” means the Person who keeps the Security Register specified in
Section 3.05. The Company initially appoints the Trustee to act as Security Registrar for the
Securities on its behalf. The Company may at any time and from time to time authorize any Person to
act as Security Registrar in place of the Trustee with respect to any series of Securities issued
under this Indenture.



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



     “Senior Indebtedness” of the Company or a Guarantor, as the case may be, means the
principal of, premium, if any, interest on, and any other payment due pursuant to any of the
following, whether outstanding at the date hereof or hereafter incurred or created:




     (i) all indebtedness of such Person for borrowed money (including any indebtedness
secured by a mortgage, conditional sales contract or other lien which is (a) given to secure
all or part of the purchase price of property subject thereto, whether given to the vendor
of such property or to another or (b) existing on property at the time of acquisition
thereof);




     (ii) all indebtedness of such Person evidenced by notes, debentures, bonds or other
similar interests sold by such Person for money;




     (iii) all lease obligations of such Person which are capitalized on the books of such
Person in accordance with generally accepted accounting principles;




     (iv) all indebtedness of others of the kinds described in either of the preceding
clauses (i) or (ii) and all lease obligations of others of the kind described in the
preceding clause (iii) assumed by or guaranteed in any manner by such Person or in effect
guaranteed by such Person through an agreement to purchase, contingent or otherwise; and




     (vi) all renewals, extensions or refundings of indebtedness of the kinds described in
any of the preceding clauses (i), (ii) and (iv) and all renewals or extensions of lease
obligations of the kinds described in either of the preceding clauses (iii) and (iv);



unless, in the case of any particular indebtedness, guarantee, lease, renewal, extension or
refunding, the instrument or lease creating or evidencing the same or the assumption or guarantee
of the same expressly provides that such indebtedness, lease, renewal, extension or refunding is
not superior in right of payment to the Securities or the Guarantees, as the case may be.



8









 








     “Significant Subsidiary” means any Subsidiary which would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act of 1933, as in effect on the date of this Indenture.



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



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



     “Subsidiary” means, with respect to any Person, any corporation more than 50% of the
voting stock of which is owned directly or indirectly by such Person, and any partnership,
association, joint venture or other entity in which such Person owns more than 50% of the equity
interests or has the power to elect a majority of the board of directors or other governing body.



     “Trading Day” shall mean, with respect to the Common Stock or a Marketable Security,
so long as the common stock or such Marketable Security, as the case may be, is listed or admitted
to trading on the NYSE, a day on which the NYSE is open for the transaction of business, or, if the
Common Stock or such Marketable Security, as the case may be, is not listed or admitted to trading
on the NYSE, a day on which the principal national securities exchange on which the Common Stock or
such Marketable Security, as the case may be, is listed is open for the transaction of business,
or, if the Common Stock or such Marketable Security, as the case may be, is not so listed or
admitted for trading on any national securities exchange, a day on which the member of the
Financial Industry Regulatory Authority selected by the Company to provide pricing information for
the Common Stock or such Marketable Security is open for the transaction of business.



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



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



     “Vice President” when used with respect to the Company or the Trustee means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president”, including without limitation, an assistant vice president.



     “Voting Stock”, as applied to the stock of any corporation, means stock of any class
or classes (however designated) having by the terms thereof ordinary voting power to elect a
majority of the members of the board of directors (or other governing body) of such



9









 





corporation other than stock having such power only by reason of the happening of a
contingency.



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



     Section 1.02 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any (including any covenants compliance with which
constitutes a condition precedent), provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion of such Counsel all
such conditions precedent, if any (including any covenants compliance with which constitutes a
condition precedent), have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional certificate or
opinion need be furnished.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than annual statements of compliance provided pursuant to Section
10.04) shall include:




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




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




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




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



     Section 1.03 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons may certify or give an opinion as to the other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.



10









 





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



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



     Section 1.04 Acts of Securityholders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Securityholders or Securityholders of any series
may be embodied in and evidenced by one or more instruments of substantially similar tenor signed
by such Securityholders in person or by an agent duly appointed in writing or may be embodied in or
evidenced by an electronic transmission which identifies the documents containing the proposal on
which such consent is requested and certifies such Securityholders’ consent thereto and agreement
to be bound thereby; and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. If any Securities are denominated in coin or currency other
than that of the United States, then for the purposes of determining whether the Holders of the
requisite principal amount of Securities have taken any action as herein described, the principal
amount of such Securities shall be deemed to be that amount of United States dollars that could be
obtained for such principal amount on the basis of the spot rate of exchange into United States
dollars for the currency in which such Securities are denominated (as evidenced to the Trustee by
an Officers’ Certificate) as of the date the taking of such action by the Holders of such requisite
principal amount is evidenced to the Trustee as provided in the immediately preceding sentence. If
any Securities are Original Issue Discount Securities, then for the purposes of determining whether
the Holders of the requisite principal amount of Securities have taken any action as herein
described, the principal amount of such Original Issue Discount Securities shall be deemed to be
the amount of the principal thereof that would be due and payable upon a declaration of
acceleration of the Maturity thereof as of the date the taking of such action by the Holders of
such requisite principal amount is evidenced to the Trustee as provided in the first sentence of
this Section 1.04(a). Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Securityholders signing such
instrument or instruments. Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.



     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness to such execution or by the certificate of any



11









 





notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by an officer of a corporation or a member of a partnership, on behalf of
such corporation or partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or
the authority of the person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.



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



     (d) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company may, at its option, fix in advance
a record date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the Company shall have no
obligation to do so. Such record date shall be the later of 10 days prior to the first solicitation
of such action or the date of the most recent list of Holders furnished to the Trustee pursuant to
Section 7.01. 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
Holders of record at the close of business on the record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of Securities outstanding have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Securities outstanding shall be computed
as of the record date; provided that no such authorization, agreement or consent by the Holders 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, and that no such
authorization, agreement or consent may be amended, withdrawn or revoked once given by a Holder,
unless the Company shall provide for such amendment, withdrawal or revocation in conjunction with
such solicitation of authorizations, agreements or consents or unless and to the extent required by
applicable law.



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



     Section 1.05 Notices, etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of
Securityholders or other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:




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




     (2) the Company by the Trustee or by any Securityholder shall be sufficient for every
purpose hereunder (except as provided in Section 5.01(4) or, in the



12









 






case of a request for repayment, as specified in the Security carrying the right to
repayment) if in writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first paragraph of this
instrument, Attention: Chief Financial Officer, or at the address last furnished in writing
to the Trustee by the Company.



     Section 1.06 Notices to Securityholders; Waiver. Where this Indenture or any Security provides for notice to Securityholders of any event,
such notice shall be sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first-class postage prepaid, to each Securityholder affected by
such event, at his address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such notice. In any case where
notice to Securityholders is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Securityholder shall affect the sufficiency of such
notice with respect to other Securityholders. Where this Indenture or any Security provides for
notice in any manner, such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Securityholders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such waiver.



     In case, by reason of the suspension of regular mail service as a result of a strike, work
stoppage or otherwise, it shall be impractical to mail notice of any event to any Securityholder
when such notice is required to be given pursuant to any provision of this Indenture, then any
method of notification as shall be satisfactory to the Trustee and the Company shall be deemed to
be a sufficient giving of such notice.



     Section 1.07 Conflict with Trust Indenture Act. If and to the extent that any provision hereof limits, qualifies or conflicts with the
duties imposed by, or with another provision (an “incorporated provision”) included in this
Indenture by operation of, any of Sections 310 to 318, inclusive, of the Trust Indenture Act, such
imposed duties or incorporated provision shall control.



     Section 1.08 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.



     Section 1.09 Successors and Assigns. All covenants and agreements in this Indenture by the Company and the Guarantors, if any,
shall bind their respective successors and assigns, whether so expressed or not.



     Section 1.10 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



     Section 1.11 Benefits of Indenture. Nothing in this Indenture or in any Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, any Authenticating Agent or
Paying Agent, the Security Registrar and the



13









 





Holders of Securities (or such of them as may be affected thereby), any benefit or any legal
or equitable right, remedy or claim under this Indenture.



     Section 1.12 Governing Law. This Indenture shall be construed in accordance with and governed by the laws of the State
of New York.



     Section 1.13 Counterparts. This instrument may be executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all such counterparts shall together constitute but one and
the same instrument.



     Section 1.14 Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the
sum due in respect of the principal of, or premium or interest, if any, on the Securities of any
series (the “Required Currency”) into a currency in which a judgment will be rendered (the
“Judgment Currency”), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in the City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant
to any judgment (whether or not entered in accordance with subsection (a)), in any currency other
than the Required Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of
action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a
Saturday, Sunday or a legal holiday in the City of New York or a day on which banking institutions
in the City of New York are authorized or required by law or executive order to close.



     Section 1.15 Legal Holidays. In any case where any Interest Payment Date, Redemption Date, date established for payment
of Defaulted Interest pursuant to Section 3.07, Stated Maturity or Maturity with respect to any
Security or other day on which principal or interest is due, shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or any Security) payment of principal or
interest need not be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 3.07 or Stated Maturity or
Maturity; provided that no interest shall accrue for the period from and after such Interest
Payment Date or other such day, Redemption Date, date established for payment of Defaulted Interest
pursuant to Section 3.07, Stated Maturity or Maturity, as the case may be, to the next succeeding
Business Day.



     Section 1.16 Agent for Service; Submission to Jurisdiction; Waiver of Immunities and Jury
Trial. The Company and each Guarantor agree that any suit, action or proceeding against the
Company or any Guarantor arising out of or based upon this Indenture or the transactions
contemplated hereby may be instituted in any State or Federal court in The City



14









 





of New York, New York, and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably submits to the nonexclusive jurisdiction of
such courts in any suit, action or proceeding. The Company and each Guarantor shall maintain in
the Borough of Manhattan, The City of New York an office or agency to act as its authorized agent
(the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding
arising out of or based upon this Indenture, any Security or the transactions contemplated herein
or thereby which may be instituted in any State or Federal court in The City of New York, New York,
and expressly accepts the nonexclusive jurisdiction of any such court in respect of any such suit,
action or proceeding. The Company shall give prompt written notice to the Trustee of the location,
and of any change in the location, of such office or agency. If at any time the Company shall fail
to maintain such office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee. The Company hereby designates the Corporate Trust Office as the Authorized
Agent and appoints the Trustee its agent to receive all such process so long as such Corporate
Trust Office remains the Authorized Agent. The Company and each Guarantor further agree to take any
and all action as may be necessary to maintain such designation and appointment of such agent in
full force and effect for a period of ten years from the date of this Indenture. If for any reason
the Authorized Agent shall cease to be available to act as such authorized agent for the Company
and any Guarantor, the Company and each Guarantor agree to designate a new agent in the State of
New York on the terms and for the purpose of this Section 1.16. The Company and each Guarantor
hereby represent and warrant that the Authorized Agent has accepted such appointment and has agreed
to act as said agent for service of process, and the Company and each Guarantor agree to take any
and all action, including the filing of any and all documents that may be necessary to continue
such appointment in full force and effect as aforesaid. Service of process upon the Authorized
Agent shall be deemed, in every respect, effective service of process upon the Company.



ARTICLE II




Security Forms




     Section 2.01 Forms Generally. The Securities shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon, as may be required
to comply with the rules of any securities exchange, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with
an appropriate reference thereto on the face of the Security.



     The definitive Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their execution of such
Securities, subject, with respect to the Securities of any series, to the rules of any securities
exchange on which such Securities are listed.



15









 





     Section 2.02 Forms of Securities. Each Security shall be in one of the forms approved from time to time by or pursuant to a
Board Resolution, or established in one or more indentures supplemental hereto.



     Prior to the delivery of a Security to the Trustee for authentication in any form approved by
or pursuant to a Board Resolution, the Company shall deliver to the Trustee the Board Resolution by
or pursuant to which such form of Security has been approved, which Board Resolution shall have
attached thereto a true and correct copy of the form of Security which has been approved thereby
or, if a Board Resolution authorizes a specific officer or officers to approve a form of Security,
a certificate of such officer or officers approving the form of Security attached thereto. Any form
of Security approved by or pursuant to a Board Resolution must be acceptable as to form to the
Trustee, such acceptance to be evidenced by the Trustee’s authentication of Securities in that form
or a certificate signed by a Responsible Officer of the Trustee and delivered to the Company.



     Section 2.03 Form of Trustee’s Certificate of Authentication. The form of Trustee’s Certificate of Authentication for any Security issued pursuant to this
Indenture shall be substantially as follows:



TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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



     U.S. BANK NATIONAL ASSOCIATION




			
	     by	 	
 

                                                                 Authorized Signatory






			
	     Dated	 	
 






     Section 2.04 Securities Issuable in the Form of a Global Security. (a) If the Company shall establish pursuant to Sections 2.02 and 3.01 that the Securities of
a particular series are to be issued in whole or in part in the form of one or more Global
Securities, then the Company shall execute and the Trustee or its agent shall, in accordance with
Section 3.03 and the Company Order delivered to the Trustee or its agent thereunder, authenticate
and deliver, such Global Security or Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the Outstanding Securities of
such series to be represented by such Global Security or Securities, or such portion thereof as the
Company shall specify in a Company Order, (ii) shall be registered in the name of the Depository
for such Global Security or Securities or its nominee, (iii) shall be delivered by the Trustee or
its agent to the Depository or pursuant to the Depository’s instruction and (iv) shall bear a
legend substantially to the following effect: “Unless this certificate is presented by an
authorized representative of the Depository to Issuer or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of the nominee of the
Depository or in such other name as is requested by an authorized representative of the Depository
(and any payment is made to the nominee of the Depository or to such other entity as is requested
by an authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER USE



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HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, the nominee of the Depository, has an interest herein.”



     (b) Notwithstanding any other provision of this Section 2.04 or of Section 3.05, and subject
to the provisions of paragraph (c) below, unless the terms of a Global Security expressly permit
such Global Security to be exchanged in whole or in part for individual Securities, a Global
Security may be transferred, in whole but not in part and in the manner provided in Section 3.05,
only to a nominee of the Depository for such Global Security, or to the Depository, or a successor
Depository for such Global Security selected or approved by the Company, or to a nominee of such
successor Depository.



     (c) (i) If at any time the Depository for a Global Security notifies the Company that it is
unwilling or unable to continue as Depository for such Global Security or if at any time the
Depository for the Securities for such series shall no longer be eligible or in good standing under
the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depository with respect to such Global Security. If a successor
Depository for such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company will execute, and
the Trustee or its agent, upon receipt of a Company Request for the authentication and delivery of
individual Securities of such series in exchange for such Global Security, will authenticate and
deliver, individual Securities of such series of like tenor and terms in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such Global Security.



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



     (iii) If specified by the Company pursuant to Sections 2.02 and 3.02 with respect to
Securities issued or issuable in the form of a Global Security, the Depository for such Global
Security may surrender such Global Security in exchange in whole or in part for individual
Securities of such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depository. Thereupon the Company shall execute, and the Trustee
or its agent shall authenticate and deliver, without service charge, (1) to each Person specified
by such Depository a new Security or Securities of the same series of like tenor and terms and of
any authorized denomination as requested by such Person in aggregate principal amount equal to and
in exchange for such Person’s beneficial interest as specified by such Depository in the Global
Security; and (2) to such Depository a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Securities delivered to Holders
thereof.



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     (iv) In any exchange provided for in any of the preceding three paragraphs, the Company will
execute and the Trustee or its agent will authenticate and deliver individual Securities in
definitive registered form in authorized denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Securities, such Global Security shall be canceled by
the Trustee or its agent. Except as provided in the preceding paragraph, Securities issued in
exchange for a Global Security pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depository for such Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee or the Security
Registrar. The Trustee or the Security Registrar shall deliver at its Corporate Trust Office such
Securities to the Persons in whose names such Securities are so registered.



ARTICLE III




The Securities




     Section 3.01 General Title; General Limitations; Issuable in Series; Terms of Particular
Series. The aggregate principal amount of Securities which may be authenticated and delivered and
Outstanding under this Indenture is not limited.



     The Securities may be issued in one or more series as from time to time may be authorized by
the Board of Directors. There shall be established in or pursuant to a Board Resolution or in an
indenture supplemental hereto, subject to Section 3.12, prior to the issuance of Securities of any
such series:




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




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




     (3) the date or dates on which the principal of the Securities of such series is
payable;




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




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




     (6) the period or periods within which, the Redemption Price or Prices or the Repayment
Price or Prices, as the case may be, at which and the terms and conditions upon which
Securities of such series may be redeemed or repaid (including the



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applicability of Section 11.09), as the case may be, in whole or in part, at the option
of the Company or the Holder;




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




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




     (9) provisions, if any, with regard to the conversion or exchange of the Securities of
such series, at the option of the Holders thereof or the Company, as the case may be, for or
into new Securities of a different series or other securities;




     (10) if other than U.S. dollars, the currency or currencies or units based on or
related to currencies in which the Securities of such series shall be denominated and in
which payments of principal of, and any premium and interest on, such Securities shall or
may be payable;




     (11) if the principal of (and premium, if any) or interest, if any, on the Securities
of such series are to be payable, at the election of the Company or a Holder thereof, in a
coin or currency (including a composite currency) other than that in which the Securities
are stated to be payable, the period or periods within which, and the terms and conditions
upon which, such election may be made;




     (12) if the amount of payments of principal of (and premium, if any) or interest, if
any, on the Securities of such series may be determined with reference to an index based on
a coin or currency (including a composite currency) other than that in which the Securities
are stated to be payable, the manner in which such amounts shall be determined;




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




     (14) provisions, if any, with regard to the exchange of Securities of such series, at
the option of the Holders thereof, for other Securities of the same series of the same
aggregate principal amount or of a different authorized series or different authorized
denomination or denominations, or both;




     (15) provisions, if any, with regard to the appointment by the Company of an
Authenticating Agent in one or more places other than the location of the office of the
Trustee with power to act on behalf of the Trustee and subject to its direction in the



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authentication and delivery of the Securities of any one or more series in connection
with such transactions as shall be specified in the provisions of this Indenture or in or
pursuant to such Board Resolution or indenture supplemental hereto;




     (16) the portion of the principal amount of Securities of the series, if other than the
principal amount thereof, which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section
5.04;




     (17) any Event of Default with respect to the Securities of such series, if not set
forth herein, and any additions, deletions or other changes to the Events of Default set
forth herein that shall be applicable to the Securities of such series;




     (18) any covenant solely for the benefit of the Securities of such series and any
additions, deletions or other changes to the provisions of Article VIII, Article X or
Section 1.01 or any definitions relating to such Article that would otherwise be applicable
to the Securities of such series;




     (19) if Section 4.03 of this Indenture shall not be applicable to the Securities of
such series and if Section 4.03 shall be applicable to any covenant or Event of Default
established in or pursuant to a Board Resolution or in an indenture supplemental hereto as
described above that has not already been established herein;




     (20) any amendments or modifications to the subordination provisions in Article XII;




     (21) if the Securities of such series shall be issued in whole or in part in the form
of a Global Security or Securities, the terms and conditions, if any, upon which such Global
Security or Securities may be exchanged in whole or in part for other individual Securities;
and the Depository for such Global Security or Securities;




     (22) if the Securities of such series shall be guaranteed, the terms and conditions of
such Guarantees and provisions for the accession of the guarantors to certain obligations
hereunder; and




     (23) any other terms of such series, including, without limitations, any restrictions
on transfer related thereto.



all upon such terms as may be determined in or pursuant to such Board Resolution or indenture
supplemental hereto with respect to such series.



     The form of the Securities of each series shall be established pursuant to the provisions of
this Indenture in or pursuant to the Board Resolution or in the indenture supplemental hereto
creating such series. The Securities of each series shall be distinguished from the Securities of
each other series in such manner, reasonably satisfactory to the Trustee, as the Board of Directors
may determine.



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     Unless otherwise provided with respect to Securities of a particular series, the Securities of
any series may only be issuable in registered form, without coupons.



     Any terms or provisions in respect of the Securities of any series issued under this Indenture
may be determined pursuant to this Section by providing for the method by which such terms or
provisions shall be determined.



     Section 3.02 Denominations. The Securities of each series shall be issuable in such denominations and currency as shall
be provided in the provisions of this Indenture or in or pursuant to the Board Resolution or the
indenture supplemental hereto creating such series. In the absence of any such provisions with
respect to the Securities of any series, the Securities of that series shall be issuable only in
fully registered form in denominations of $1,000 and any integral multiple thereof.



     Section 3.03 Execution, Authentication and Delivery and Dating. The Securities shall be executed on behalf of the Company by any Responsible Officer. The
signature of any of these officers on the Securities may be manual or facsimile.



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



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication; and the
Trustee shall, upon Company Order, authenticate and deliver such Securities as in this Indenture
provided and not otherwise.



     Prior to any such authentication and delivery, the Trustee shall be provided with the
Officers’ Certificate required to be furnished to the Trustee pursuant to Section 1.02, and the
Board Resolution and any certificate relating to the issuance of the series of Securities required
to be furnished pursuant to Section 2.02, an Opinion of Counsel substantially to the effect that:




     (1) all instruments furnished to the Trustee conform to the requirements of the
Indenture and constitute sufficient authority hereunder for the Trustee to authenticate and
deliver such Securities;




     (2) the form and terms of such Securities have been established in conformity with the
provisions of this Indenture;




     (3) all laws and requirements with respect to the execution and delivery by the Company
of such Securities have been complied with, the Company has the corporate power to issue
such Securities and such Securities have been duly authorized and delivered by the Company
and, assuming due authentication and delivery by the Trustee, constitute legal, valid and
binding obligations of the Company enforceable in accordance with their terms (subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws and legal principles affecting creditors’ rights generally from time to time
in effect and to general



21









 






equitable principles, whether applied in an action at law or in equity) and entitled to
the benefits of this Indenture, equally and ratably with all other Securities, if any, of
such series Outstanding;




     (4) when applicable, the Indenture is qualified under the Trust Indenture Act; and




     (5) such other matters as the Trustee may reasonably request;



and, if the authentication and delivery relates to a new series of Securities created by an
indenture supplemental hereto, also stating that all laws and requirements with respect to the form
and execution by the Company of the supplemental indenture with respect to that series of
Securities have been complied with, the Company has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary corporate action for those purposes and any such
supplemental indenture has been duly executed and delivered and constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other
laws and legal principles affecting creditors’ rights generally from time to time in effect and to
general equitable principles, whether applied in an action at law or in equity).



     The Trustee shall not be required to authenticate such Securities if the issue thereof will
adversely affect the Trustee’s own rights, duties or immunities under the Securities and this
Indenture.



     Unless otherwise provided in the form of Security for any series, all Securities shall be
dated the date of their authentication.



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



     Section 3.04 Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute,
and, upon receipt of the documents required by Section 3.03, together with a Company Order, the
Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.



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



     Section 3.05 Registration, Transfer and Exchange. The Company shall keep or cause to be kept a register or registers (herein sometimes
referred to as the “Security Register”) in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Securities, or of Securities of
a particular series, and of transfers of Securities or of Securities of such series. Any such
register shall be in written form or in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the information contained in such register or
registers shall be available for inspection by the Trustee at the office or agency to be maintained
by the Company as provided in Section 10.02. There shall be only one Security Register per series
of Securities.



     Subject to Section 2.04, upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained for such purpose in a Place of Payment,
the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of like tenor and
terms.



     Subject to Section 2.04, at the option of the Holder, Securities of any series may be
exchanged for other Securities of such series of any authorized denominations, of a like aggregate
principal amount and Stated Maturity and of like tenor and terms, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Securityholder making the exchange is entitled to receive.



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



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



     Unless otherwise provided in the Security to be registered for transfer or exchanged, no
service charge shall be made on any Securityholder for any registration of transfer



23









 





or exchange of Securities, but the Company may (unless otherwise provided in such Security)
require payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.



     The Company shall not be required (i) to issue, register the transfer of or exchange any
Security of any series during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Securities of such series selected for redemption under
Section 11.03 and ending at the close of business on the date of such mailing, or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or in part.



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



     Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities. If (i) any mutilated Security is surrendered to the Trustee, or the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Security, and (ii)
there is delivered to the Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a protected purchaser, the Company shall execute and upon
its written request the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security, a new Security of like tenor, series, Stated
Maturity and principal amount, bearing a number not contemporaneously outstanding.



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



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



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



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



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     Section 3.07 Payment of Interest; Interest Rights Preserved. Unless otherwise provided with respect to such Security pursuant to Section 3.01, interest
on any Security which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest.



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




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names any such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner (the “Special Record Date”).
The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
reasonably satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 nor less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first class postage
prepaid, to the Holder of each such Security at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following clause (2).




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



     If any installment of interest the Stated Maturity of which is on or prior to the Redemption
Date for any Security called for redemption pursuant to Article XI is not paid or duly provided for
on or prior to the Redemption Date in accordance with the foregoing



25









 





provisions of this Section, such interest shall be payable as part of the Redemption Price of
such Securities.



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



     Section 3.08 Persons Deemed Owners. The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any), and (subject to Section 3.07) interest on, such
Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.



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



     Section 3.09 Cancellation. All Securities surrendered for payment, redemption, registration of transfer, exchange or
credit against a sinking fund shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already canceled, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly canceled by the Trustee. No Security shall be
authenticated in lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled
Securities in accordance with its standard procedures and deliver a certificate of such disposition
to the Company upon its written request therefor.



     Section 3.10 CUSIP and CINS Numbers. The Company in issuing any Securities may use “CUSIP” and “CINS” numbers (if then generally
in use) and, if so, the Trustee shall use “CUSIP” and “CINS” numbers in notices of redemption as a
convenience to Securityholders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on such Securities or as contained in
any notice of a redemption and that reliance may be placed only on the other identification numbers
printed on such Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers in such notices of redemption.



     Section 3.11 Computation of Interest. Unless otherwise provided as contemplated in Section 3.01, interest on the Securities shall
be calculated on the basis of a 360-day year of twelve 30-day months.



     Section 3.12 Delayed Issuance of Securities. Notwithstanding any contrary provision herein, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary for the Company to deliver to the Trustee
an Officers’ Certificate, Board



26









 





Resolution, indenture supplemental hereto, Opinion of Counsel or Company Order otherwise
required pursuant to Sections 1.02, 2.02, 3.01 and 3.03 at or prior to the time of authentication
of each Security of such series if such documents are delivered to the Trustee or its agent at or
prior to the authentication upon original issuance of the first Security of such series to be
issued; provided that any subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute a representation and warranty by
the Company that as of the date of such request, the statements made in the Officers’ Certificate
or other certificates delivered pursuant to Sections 1.02 and 2.02 shall be true and correct as if
made on such date.



     A Company Order, Officers’ Certificate or Board Resolution or indenture supplemental hereto
delivered by the Company to the Trustee in the circumstances set forth in the preceding paragraph
may provide that Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time in the aggregate principal amount, if
any, established for such series pursuant to such procedures reasonably acceptable to the Trustee
as may be specified from time to time by Company Order upon the telephonic, electronic or written
order of Persons designated in such Company Order, Officers’ Certificate, indenture supplemental
hereto or Board Resolution (any such telephonic or electronic instructions to be promptly confirmed
in writing by such Persons) and that such Persons are authorized to determine, consistent with such
Company Order, Officers’ Certificate, indenture supplemental hereto or Board Resolution, such terms
and conditions of said Securities as are specified in such Company Order, Officers’ Certificate,
indenture supplemental hereto or Board Resolution.



ARTICLE IV




Satisfaction and Discharge; Defeasance




     Section 4.01 Satisfaction and Discharge of Indenture. Unless pursuant to Section 3.01 provision is made that this Section shall not be applicable
to the Securities of any series, this Indenture shall cease to be of further effect with respect to
any series of Securities (except as to any surviving rights of registration of transfer or exchange
of Securities of such series expressly provided for herein or in the form of Security for such
series), and the Trustee, on receipt of a Company Request and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such
series, when:




     (1) either




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



27









 






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




     (i) have become due and payable, or




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




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



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




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




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



Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee with respect to that series under Section
6.07 shall survive and the obligations of the Company and the Trustee under Sections 3.05, 3.06,
4.02, 10.02 and 10.03 shall survive such satisfaction and discharge.



     Section 4.02 Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money, property and
securities deposited with the Trustee pursuant to Section 4.01 or Section 4.03 shall be held in
trust and applied by it, in accordance with the provisions of the series of Securities in respect
of which it was deposited and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.



     Anything herein to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money, property or securities deposited with and
held by it as provided in Section 4.03 and this Section 4.02 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent satisfaction and discharge, Discharge (as



28









 





defined below) or covenant defeasance, provided that the Trustee shall not be required to
liquidate any securities in order to comply with the provisions of this paragraph.



     Section 4.03 Defeasance Upon Deposit of Funds or Government Obligations. Unless pursuant to Section 3.01 provision is made that this Section shall not be applicable
to the Securities of any series, at the Company’s option, either (a) the Company and the
Guarantors, if any, shall be deemed to have been Discharged (as defined below) from its obligations
with respect to any series of Securities after the applicable conditions set forth below have been
satisfied or (b) the Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Section 10.05 and Article VIII (and any other Sections or
covenants applicable to such Securities that are determined pursuant to Section 3.01 to be subject
to this provision), the Guarantors, if any, shall be released from the Guarantees and clause (4) of
Section 5.01 of this Indenture (and any other Events of Default applicable to such Securities that
are determined pursuant to Section 3.01 to be subject to this provision) shall be deemed not to be
an Event of Default with respect to any series of Securities at any time after the applicable
conditions set forth below have been satisfied:




     (1) the Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii) the
equivalent in securities of the government which issued the currency in which the Securities
are denominated or government agencies backed by the full faith and credit of such
government which through the payment of interest and principal in respect thereof in
accordance with their terms will provide freely available funds on or prior to the due date
of any payment, money in an amount, or (iii) a combination of (i) and (ii), sufficient, in
the opinion (with respect to (ii) and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to
pay and discharge each installment of principal (including mandatory sinking fund payments)
and any premium of, interest on and any repurchase or redemption obligations with respect to
the outstanding Securities of such series on the dates such installments of interest or
principal or repurchase or redemption obligations are due (before such a deposit, if the
Securities of such series are then redeemable or may be redeemed in the future pursuant to
the terms thereof, in either case at the option of the Company, the Company may give to the
Trustee, in accordance with Section 11.02, a notice of its election to redeem all of the
Securities of such series at a future date in accordance with Article XI);




     (2) no Event of Default or event (including such deposit) which with notice or lapse of
time would become an Event of Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit (other than an Event of Default
resulting from the borrowing of funds to be applied to such deposit);




     (3) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that Holders of the Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the Company’s exercise of its option under this
Section 4.03 and will be subject to Federal income tax on



29









 






the same amount and in the same manner and at the same times as would have been the
case if such option had not been exercised, and, in the case of Securities being Discharged,
accompanied by a ruling to that effect from the Internal Revenue Service, unless, as set
forth in such Opinion of Counsel, there has been a change in the applicable Federal income
tax law since the date of this Indenture such that a ruling from the Internal Revenue
Service is no longer required;




     (4) the Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit referred to in paragraph (1) above was not made by the Company with the
intent of preferring the Holders over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others; and




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



     If the Company, at its option, with respect to a series of Securities, satisfies the
applicable conditions pursuant to either clause (a) or (b) of the first sentence of this Section,
then (A), in the event the Company satisfies the conditions to clause (a) and elects clause (a) to
be applicable, each of the Guarantors, if any, shall be deemed to have paid and discharged the
entire indebtedness represented by, and obligations under, its respective guarantee of the
Securities of such series and to have satisfied all the obligations under this Indenture relating
to the Securities of such series and (B) in either case, each of the Guarantors, if any, shall
cease to be under any obligation to comply with any term, provision or condition set forth in any
covenants applicable to such Securities that are determined pursuant to Section 3.01 to be subject
to this provision, and any Events of Default applicable to such series of Securities that are
determined pursuant to Section 3.01 to be subject to this provision shall be deemed not to be an
Event of Default with respect to such series of Securities at any time thereafter.



     “Discharged” means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by, and obligations under, the Securities of such series and to
have satisfied all the obligations under this Indenture relating to the Securities of such series
(and the Trustee, on receipt of a Company Request and at the expense of the Company, shall execute
proper instruments acknowledging the same), except (A) the rights of Holders of Securities to
receive, from the trust fund described in clause (1) above, payment of the principal and any
premium of and any interest on such Securities when such payments are due; (B) the Company’s
obligations with respect to such Securities under Sections 3.05, 3.06, 4.02, 6.07, 10.02 and 10.03;
(C) the Company’s right of redemption, if any, with respect to any Securities of such series
pursuant to Article XI, in which case the Company may redeem the Securities of such series in
accordance with Article XI by complying with such Article and depositing with the Trustee, in
accordance with Section 11.05, an amount of money sufficient, together with all amounts held in
trust pursuant to Section 4.02 with respect to Securities of such series, to pay the Redemption
Price of all the Securities of such series to be redeemed; and (D) the rights, powers, trusts,
duties and immunities of the Trustee hereunder. A “Discharge” shall mean the meeting by the
Company of the foregoing requirements.



30









 





     Section 4.04 Reinstatement. If the Trustee or Paying Agent is unable to apply any money, property or securities in
accordance with Section 4.02 of this Indenture, by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s and, if applicable, the Guarantors’ obligations under
this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.01 or 4.03 of this Indenture, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money, property or securities in accordance
with Section 4.02 of this Indenture; provided that, if the Company has made any payment of
principal of or interest on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive such payment
from the money, property or securities held by the Trustee or Paying Agent.



ARTICLE V




Remedies




     Section 5.01 Events of Default. “Event of Default”, wherever used herein, means with respect to any series of
Securities any one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any administrative or
governmental body), unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in or pursuant to the indenture supplemental hereto or Board
Resolution creating such series of Securities or in the form of Security for such series:




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




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




     (3) default in the payment of any sinking or purchase fund or analogous obligation when
the same becomes due by the terms of the Securities of such series; or




     (4) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture in respect of the Securities of such series (other than a covenant or
warranty in respect of the Securities of such series a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with), all of such
covenants and warranties in the Indenture which are not expressly stated to be for the
benefit of a particular series of Securities being deemed in respect of the Securities of
all series for this purpose, and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 331⁄3% in aggregate
principal amount of the Outstanding Securities of such series, a



31









 






written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or




     (5) the entry of an order for relief against the Company or any Significant Subsidiary
thereof under Title 11, United States Code (the “Federal Bankruptcy Act”) by a court
having jurisdiction in the premises or a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary thereof a bankrupt or
insolvent under any other applicable Federal or State law, or the entry of a decree or order
approving as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Significant Subsidiary thereof under the
Federal Bankruptcy Act or any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or any Significant Subsidiary thereof or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90 consecutive days; or




     (6) the consent by the Company or any Significant Subsidiary thereof to the institution
of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal Bankruptcy Act or any
other applicable Federal or State law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or any Significant Subsidiary thereof or of any
substantial part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or any Significant
Subsidiary thereof in furtherance of any such action; or




     (7) any other Event of Default provided in the indenture supplemental hereto or Board
Resolution under which such series of Securities is issued or in the form of Security for
such series.



     Section 5.02 Acceleration of Maturity; Rescission and Annulment. If an Event of Default described in paragraph (1), (2), (3), (4) or (7) (if the Event of
Default under clause (4) or (7) is with respect to less than all series of Securities then
Outstanding) of Section 5.01 occurs and is continuing with respect to any series, then and in each
and every such case, unless the principal of all the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 331⁄3% in aggregate
principal amount of the Securities of such series then Outstanding hereunder (each such series
acting as a separate class), by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the principal amount (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of that
series) of all the Securities of such series and all accrued interest thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such series contained to the contrary
notwithstanding. If an Event of Default described in clause (4) or (7) (if the Event of Default
under clause (4) or (7) is with respect to all series of Securities then Outstanding), of Section
5.01 occurs and is



32









 





continuing, then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the Holders of not less than 331⁄3%
in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one
class), by notice in writing to the Company (and to the Trustee if given by Holders), may declare
the principal amount (or, if any Securities are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms thereof) of all the Securities then
Outstanding and all accrued interest thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding. If an Event of Default of
the type set forth in clause (5) or (6) of Section 5.01 occurs and is continuing, the principal of
and any interest on the Securities then Outstanding shall become immediately due and payable.



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




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




     (A) all overdue installments of interest on the Securities of such series; and




     (B) the principal of (and premium, if any, on) any Securities of such series
which have become due otherwise than by such declaration of acceleration, and
interest thereon at the rate or rates prescribed therefor by the terms of the
Securities of such series, to the extent that payment of such interest is lawful;
and




     (C) interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series to the extent that
payment of such interest is lawful; and




     (D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 6.07; and




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



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



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     Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:




     (1) default is made in the payment of any installment of interest on any Security of
any series when such interest becomes due and payable; or




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




     (3) default is made in the payment of any sinking or purchase fund or analogous
obligation when the same becomes due by the terms of the Securities of any series;



and any such default continues for any period of grace provided with respect to the Securities of
such series, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holder
of any such Security (or the Holders of any such series in the case of clause (3) above), the whole
amount then due and payable on any such Security (or on the Securities of any such series in the
case of clause (3) above) for principal (and premium, if any) and interest, with interest, to the
extent that payment of such interest shall be legally enforceable, upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at such rate or rates as may be
prescribed therefor by the terms of any such Security (or of Securities of any such series in the
case of clause (3) above); and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 6.07.



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



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



     Section 5.04 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made



34









 





any demand on the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceedings or otherwise:



     (i) to file and prove a claim for the whole amount of principal (or portion thereof determined
pursuant to Section 3.01(16) to be provable in bankruptcy) (and premium, if any) and interest owing
and unpaid in respect of the Securities and to file such other papers or documents as may be
necessary and advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 6.07) and of the Securityholders
allowed in such judicial proceeding; and



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



and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each Securityholder to make such payment to the
Trustee and in the event that the Trustee shall consent to the making of such payments directly to
the Securityholders, to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 6.07.



     Nothing herein contained 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 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 5.05 Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities of any series may be
prosecuted and enforced by the Trustee without the possession of any of the Securities of such
series or the production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and counsel and any other amounts
due the Trustee under Section 6.07, be for the ratable benefit of the Holders of the Securities of
the series in respect of which such judgment has been recovered.



     Section 5.06 Application of Money Collected. Any money collected by the Trustee with respect to a series of Securities pursuant to this
Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal (or premium, if any) or interest,
upon presentation of the Securities of such series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:




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




     SECOND: To the payment of the amounts then due and unpaid upon the Securities of that
series for principal (and premium, if any) and interest, in respect of



35









 






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.




     THIRD: To the Company.



     Section 5.07 Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:




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




     (2) the Holders of not less than 331⁄3% in principal amount of the outstanding Securities
of such series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;




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




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




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



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



     Section 5.08 Unconditional Right of Securityholders to Receive Principal, Premium and
Interest. Notwithstanding any other provisions in this Indenture, the Holder of any Security shall
have the right, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.07) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or repayment, on the
Redemption Date or Repayment Date, as the case may be) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of such Holder.



     Section 5.09 Restoration of Rights and Remedies. If the Trustee or any Securityholder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason,
then and in every such



36









 





case the Company, the Trustee and the Securityholders shall, subject to any determination in
such proceeding, be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Securityholders shall continue as though
no such proceeding had been instituted.



     Section 5.10 Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Trustee or to the
Securityholders is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.



     Section 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Securityholders, as the case may
be.



     Section 5.12 Control by Securityholders. The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series, provided that:




     (1) the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action so directed may not lawfully
be taken or would conflict with this Indenture or if the Trustee in good faith shall, by a
Responsible Officer, determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such direction, and




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



     Section 5.13 Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default not theretofore cured:




     (1) in the payment of the principal of (or premium, if any) or interest on any Security
of such series, or in the payment of any sinking or purchase fund or analogous obligation
with respect to the Securities of such series, or




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



37









 





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



     Section 5.14 Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of any series to which
the suit relates, 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 an Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date, as the case may be).



     Section 5.15 Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



ARTICLE VI




The Trustee




     Section 6.01 Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default with respect to any series of
Securities:




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




     (2) in the absence of bad faith on its part, the Trustee may, with respect to
Securities of such series, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are specifically required to be



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furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated
therein).



     (b) In case an Event of Default with respect to any series of Securities has occurred and is
continuing, the Trustee shall exercise with respect to the Securities of such series such of the
rights and powers vested in it by this Indenture and any indenture supplemental hereto or Board
Resolution relating to such series of Securities, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.



     (c) 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) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;




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




     (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 a majority in
principal amount of the Outstanding Securities of any series relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and




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



     (d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.



     Section 6.02 Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to Securities of
any series, the Trustee shall transmit by mail to all Securityholders of such series, as their
names and addresses appear in the Security Register, notice of all defaults hereunder known to the
Trustee, unless such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or interest on any
Security of such series or in the payment of any sinking or purchase fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the



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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 of such series; and provided, further, that in the case of any default of the
character specified in Section 5.01(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the occurrence thereof.
For the purpose of this Section, the term “default”, with respect to Securities of any series,
means any event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.



     Section 6.03 Certain Rights of Trustee. Except as otherwise provided in Section 6.01:




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




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




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




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




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




     (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, direction, consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;



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     (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;




     (h) the Trustee shall not be charged with knowledge of any default (as defined in
Section 6.02) or Event of Default with respect to the Securities of any series for which it
is acting as Trustee unless either (1) a Responsible Officer of the Trustee assigned to the
Corporate Trust Department of the Trustee (or any successor division or department of the
Trustee) shall have actual knowledge of such default or Event of Default or (2) written
notice of such default or Event of Default shall have been given to the Trustee by the
Company or any other obligor on such Securities or by any Holder of such Securities;




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




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



     Section 6.04 Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.



     Section 6.05 May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company or any
Guarantor, if applicable, with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.



     Section 6.06 Money Held in Trust. Subject to the provisions of Section 10.03 hereof, all moneys in any currency or currency
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 money received
by it hereunder except as otherwise agreed in writing with the Company.



     Section 6.07 Compensation and Reimbursement. The Company agrees:



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




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




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



     As security for the performance of the obligations of the Company under this Section the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of (and premium, if
any) or interest on particular Securities.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.01(5) or (6), the expenses and the compensation for the services are
intended to constitute expenses of administration under any bankruptcy law.



     The Company’s obligations under this Section 6.07 and any lien arising hereunder shall survive
the resignation or removal of any Trustee, the discharge of the Company’s obligations pursuant to
Article IV of this Indenture and/or the termination of this Indenture.



     Section 6.08 Disqualification; Conflicting Interests. The Trustee for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as defined in Section 310(b)
of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded
this Indenture with respect to Securities of any particular series of Securities other than that
series. Nothing herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust Indenture Act.



     Section 6.09 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder with respect to each series of Securities,
which shall be either:



     (i) a corporation organized and doing business under the laws of the United States of America
or of any State, authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal or State authority, or



     (ii) a corporation or other Person organized and doing business under the laws of a foreign
government that is permitted to act as Trustee pursuant to a rule, regulation or order



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of the Commission, authorized under such laws to exercise corporate trust powers, and subject
to supervision or examination by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination applicable to United States
institutional trustees;



in either case having a combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of 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. Neither the Company nor any Person
directly or indirectly controlling, controlled by, or under common control with the Company shall
serve as trustee for the Securities of any series issued hereunder. If at any time the Trustee with
respect to any series of Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect specified in Section
6.10.



     Section 6.10 Resignation and Removal. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.



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



     (c) The Trustee may be removed with respect to any series of Securities at any time by Act of
the Holders of a majority in principal amount of the outstanding Securities of that series,
delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of such notice of
removal, the removed Trustee may petition any court of competent jurisdiction for the appointment
of a successor Trustee.



     (d) If at any time:




     (1) the Trustee shall fail to comply with Section 310(b) of the Trust Indenture Act
pursuant to Section 6.08 with respect to any series of Securities after written request
therefor by the Company or by any Securityholder who has been a bona fide Holder of a
Security of that series for at least six months, unless the Trustee’s duty to resign is
stayed in accordance with the provisions of Section 310(b) of the Trust Indenture Act, or




     (2) the Trustee shall cease to be eligible under Section 6.09 with respect to any
series of Securities 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 with respect to any series of
Securities, or



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     (4) the Trustee shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, with respect to the series, or in the case of clause (4), with respect to all
series, or (ii) subject to Section 5.14, any Securityholder who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee with respect to the series, or, in
the case of clause (4), with respect to all series.



     (e) If the Trustee shall resign, be removed or become incapable of acting with respect to any
series of Securities, or if a vacancy shall occur in the office of the Trustee with respect to any
series of Securities for any cause, the Company, by Board Resolution, shall promptly appoint a
successor Trustee for that series of Securities.



If, within one year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee with respect to
such series and supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so appointed by the
Company or the Securityholders of such series and accepted appointment in the manner hereinafter
provided, subject to Section 5.14, any Securityholder who has been a bona fide Holder of a Security
of that series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.



     (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to any series and each appointment of a successor Trustee with respect to any series by
mailing written notice of such event by first-class mail, postage prepaid, to the Holders of
Securities of that series as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address of its principal Corporate Trust
Office.



     Section 6.11 Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor Trustee shall become effective with respect to any series
as to which it is resigning or being removed as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to any such series; but, on request of the Company or the
successor Trustee, such predecessor Trustee shall, upon payment of its reasonable charges, if any,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the predecessor Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such predecessor trustee hereunder with



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respect to all or any such series, subject nevertheless to its lien, if any, provided for in
Section 6.07. Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.



     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not being succeeded shall
continue to be vested in the predecessor Trustee, and 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
indenture supplemental hereto shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee.



     No successor Trustee with respect to any series of Securities shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible with
respect to that series under this Article.



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



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



     Section 6.14 Appointment of Authenticating Agent. At any time when any of the Securities remain Outstanding the Trustee, with the approval of
the Company, may appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by



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the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as an Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and, if other than the Company itself,
subject to supervision or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in this Section.



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



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



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



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



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



     [Name of Authenticating Agent]





			
	     by	 	
 

                                                                  As Authenticating Agent






			
	     by	 	
 

                                                                  As Authorized Agent






			
	     Dated	 	
 






ARTICLE VII




Securityholders’ Lists and Reports by

Trustee and Company




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



     The Company will furnish or cause to be furnished to the Trustee:




     (1) semi-annually, not more than 15 days after December 15 and June 15 in each year in
such form as the Trustee may reasonably require, a list of the names and addresses of the
Holders of Securities of each series as of such December 15 and June 15, as applicable, and




     (2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished; provided, however, that if
and so long as the Trustee shall be the Security Registrar for Securities of a series, no
such list need be furnished with respect to such series of Securities.



     Section 7.02 Preservation of Information; Communications to Securityholders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Securities contained in the most recent list furnished to the
Trustee as provided in Section 7.01 and the names and addresses of Holders of Securities received
by the Trustee in its capacity as Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.



     (b) If three or more Holders of Securities of any series (hereinafter referred to as
“applicants”) apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security of such series for a period of at least six months
preceding the date of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders of all Securities
with respect to their rights under this Indenture or under such Securities and is accompanied by a



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copy of the form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after the receipt of such application, at its
election, either:




     (1) afford such applicants access to the information preserved at the time by the
Trustee in accordance with Section 7.02(a), or




     (2) inform such applicants as to the approximate number of Holders of Securities of
such series or all Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section 7.02(a), and as
to the approximate cost of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.



     If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Holder of a Security of
such series or to all Securityholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section 7.02(a), a copy of the
form of proxy or other communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Securities of such series or all
Securityholders, as the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all Securityholders of such series or all Securityholders, as
the case may be, with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.



     (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders of Securities in
accordance with Section 7.02(b), regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a
request made under Section 7.02(b).



     Section 7.03 Reports by Trustee. (a) Within 60 days after May 15 of each year commencing with the first May 15 after the
issuance of Securities, the Trustee shall transmit by mail, at the Company’s expense, to all
Holders as their names and addresses appear in the Security Register, as provided in Trust
Indenture Act 313(c), a brief report dated as of May 15 in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(a).



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     (b) The Trustee shall transmit by mail, at the Company’s expense, to all Holders as their
names and addresses appear in the Security Register, as provided in Trust Indenture Act 313(c), a
brief report in accordance with and with respect to the matters required by Trust Indenture Act
Section 313(b).



     (c) A copy of each such report shall, at the time of such transmission to Holders, be
furnished to the Company and, in accordance with Trust Indenture Act Section 313(d), be filed by
the Trustee with each stock exchange upon which the Securities are listed, and also with the
Commission.



     Section 7.04 Reports by Company. The Company shall file with the Trustee, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission. The Company also shall comply with
the other provisions of Trust Indenture Act Section 314(a). Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).



ARTICLE VIII




Consolidation, Merger, Conveyance or Transfer




     Section 8.01 Consolidation, Merger, Conveyance or Transfer on Certain Terms. Except as otherwise set forth in an indenture supplemental hereto or Board Resolution
creating such series of Securities or in the form of security for such Series, the Company shall
not consolidate with or merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:




     (1) the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer the properties and assets of the Company
substantially as an entirety shall be organized and existing under the laws of the United
States of America or any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance of every
covenant of this Indenture (as supplemented from time to time) on the part of the Company to
be performed or observed;




     (2) immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event of Default, shall
have happened and be continuing; and



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



     Section 8.02 Successor Person Substituted. Upon any consolidation or merger, or any conveyance or transfer of the properties and assets
of the Company substantially as an entirety in accordance with Section 8.01, the successor Person
formed by such consolidation or into which the Company is merged or to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor had been named as
the Company herein. In the event of any such conveyance or transfer, the Company as the predecessor
shall be discharged from all obligations and covenants under this Indenture and the Securities and
may be dissolved, wound up or liquidated at any time thereafter.



ARTICLE IX




Supplemental Indentures




     Section 9.01 Supplemental Indentures Without Consent of Securityholders. Except as otherwise set forth in an indenture supplemental hereto or Board Resolution
creating such series of Securities or in the form of Security for such series, without the consent
of the Holders of any Securities, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:




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




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




     (3) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture; or




     (4) to add to this Indenture such provisions as may be expressly permitted by the TIA,
excluding, however, the provisions referred to in Section 316(a)(2) of the TIA as in effect
at the date as of which this instrument was executed or any corresponding provision in any
similar federal statute hereafter enacted; or



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     (5) to establish any form of Security, as provided in Article II, to provide for the
issuance of any series of Securities as provided in Article III and to set forth the terms
thereof, and/or to add to the rights of the Holders of the Securities of any series; or




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




     (7) to add any additional Events of Default in respect of the Securities of any or all
series (and if such additional Events of Default are to be in respect of less than all
series of Securities, stating that such Events of Default are expressly being included
solely for the benefit of one or more specified series); or




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




     (9) to provide for the terms and conditions of conversion into Common Stock or other
Marketable Securities of the Securities of any series which are convertible into Common
Stock or other Marketable Securities, if any; or




     (10) to secure the Securities of any series; or




     (11) to add Guarantees in respect of any series or all of the Securities; or




     (12) to make any other change that does not adversely affect the rights of the Holders
of any or all series of Securities; or




     (13) to make any change necessary to comply with any requirement of the Commission in
connection with the qualification of this Indenture or any supplemental indenture under the
Trust Indenture Act.



     No supplemental indenture for the purposes identified in clauses (2), (3) or (5) above may be
entered into if to do so would adversely affect the rights of the Holders of Outstanding Securities
of any series in any material respect.



     Section 9.02 Supplemental Indentures With Consent of Securityholders. Except as otherwise set forth in an indenture supplemental hereto or Board Resolution
creating such series of Securities or in the form of security for such Series, with the consent of
the Holders of not less than a majority in principal amount of the Outstanding Securities of all
series affected by such supplemental indenture or indentures (acting as one class), by Act of said
Holders delivered to the Company and the Trustee (in accordance with Section 1.04 hereof), the
Company, when



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authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:




     (1) change the Maturity of the principal of, or the Stated Maturity of any premium on,
or any installment of interest on, any Security, or reduce the principal amount thereof or
the interest or any premium thereon, or change the method of computing the amount of
principal thereof or interest thereon on any date or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on or after
the Maturity or the Stated Maturity, as the case may be, thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or the Repayment Date, as the case
may be), or alter the provisions of this Indenture so as to affect adversely the terms, if
any, of conversion of any Securities into Common Stock or other securities; or




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




     (3) modify any of the provisions of this Section 9.02, Section 5.13 or Section 10.06,
except to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; or




     (4) impair or adversely affect the right of any Holder to institute suit for the
enforcement of any payment on, or with respect to, the Securities of any series on or after
the Stated Maturity of such Securities (or in the case of redemption, on or after the
Redemption Date);




     (5) amend or modify Section 13.01 of this Indenture in any manner adverse to the rights
of the Holders of the Outstanding Securities of any series; or




     (6) make any change in the terms of the subordination of the Securities in a manner
adverse in any material respect to the Holders of any series of Outstanding Securities.



     For purposes of this Section 9.02, if the Securities of any series are issuable upon the
exercise of warrants, each holder of an unexercised and unexpired warrant with respect to such
series shall be deemed to be a Holder of Outstanding Securities of such series in the amount
issuable upon the exercise of such warrant. For such purposes, the ownership of any such warrant
shall be determined by the Company in a manner consistent with customary commercial



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practices. The Trustee for such series shall be entitled to rely on an Officers’ Certificate
as to the principal amount of Securities of such series in respect of which consents shall have
been executed by holders of such warrants.



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



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



     Section 9.03 Subordination Unimpaired. This Indenture may not be amended at any time to alter the subordination, as provided
herein, of any of the Securities then Outstanding without the written consent of the requisite
holders of each series of debt securities representing Senior Indebtedness (as determined in
accordance with terms of the instrument governing such Senior Indebtedness) then outstanding that
would be adversely affected thereby.



     Section 9.04 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.



     Section 9.05 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby to the extent provided therein.



     Section 9.06 Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of TIA as then in effect.



     Section 9.07 Reference in Securities to Supplemental Indentures. Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities.



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     Section 9.08 Notice of Supplemental Indentures. Promptly after the execution by the Company, any affected Guarantor and the Trustee of any
Supplemental Indenture pursuant to the provisions of Section 9.02, the Company shall give notice
thereof to the Securityholders of each Outstanding Security affected, in the manner provided for in
Section 1.06, setting forth in general terms the substance of such Supplemental Indenture. Any
failure by the Company to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amendment or waiver.



     Section 9.09 Revocation and Effect of Consents, Waivers and Actions. Until an amendment, waiver or other action by Securityholders becomes effective, a consent
to it or any other action by a Securityholder of any series hereunder is a continuing consent by
such Securityholder and every subsequent Securityholder of that Security, even if notation of the
consent, waiver or action is not made on such Security. However, any such Securityholder or
subsequent Securityholder may revoke the consent, waiver or action as to such Securityholder’s
Security if the Trustee receives the notice of revocation before the consent of the requisite
aggregate principal amount of the Securities of such series affected then outstanding has been
obtained and not revoked. After an amendment, waiver or action becomes effective, it shall bind
every Securityholder of the affected series, except as provided in Section 9.02.



     The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Securityholders entitled to consent to any amendment or waiver. If a record date
is fixed, then, notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Securityholders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such persons continue to be Securityholders
after such record date. No such consent shall be valid or effective for more than 90 days after
such record date.



ARTICLE X




Covenants




     Section 10.01 Payment of Principal, Premium and Interest. With respect to each series of Securities, the Company will duly and punctually pay the
principal of (and premium, if any) and interest on such Securities in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements and conditions
contained in, or made in the Indenture for the benefit of, the Securities of such series.



     Section 10.02 Maintenance of Office or Agency. The Company will maintain an office or agency in each Place of Payment where Securities may
be presented or surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange, where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served and where any Securities with conversion privileges, if any, may
be presented and surrendered for conversion. The Company will give prompt written notice to the
Trustee of the location, and of any change in the location, of such office or agency. If at any
time the Company shall fail to maintain such office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands may be made or served
at the



54









 





Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent
to receive all such presentations, surrenders, notices and demands.



     Unless otherwise set forth in, or pursuant to, a Board Resolution or indenture supplemental
hereto with respect to a series of Securities, the Company hereby initially designates as the Place
of Payment for each series of Securities, the Borough of Manhattan, the City and State of New York,
and initially appoints the Trustee at its Corporate Trust Office as the Company’s office or agency
for each such purpose in such city.



     Section 10.03 Money for Security Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent for any series of Securities,
it will, on or before each due date of the principal of (and premium, if any) or interest on, any
of the Securities of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure to act.



     Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal of (and premium, if any) or interest on, any
Securities of such series, deposit with a 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 (and premium, if any) or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.



     The Company will cause each Paying Agent other than the Trustee for any series of Securities
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:




     (1) hold all sums held by it for the payment of principal of (and premium, if any) or
interest on Securities of such series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;




     (2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any such payment of principal (and premium,
if any) or interest on the Securities of such series; and




     (3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture with respect to any series of Securities or for any other purpose, pay, or by
Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company
or such Paying Agent in respect of each and every series of Securities as to which it seeks to
discharge this Indenture or, if for any other purpose, all sums so held in trust by the



55









 





Company in respect of all Securities, such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on any Security of any
series and remaining unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security shall thereafter as
an unsecured general creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease. The Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company mail to the Holders of the Securities
as to which the money to be repaid was held in trust, as their names and addresses appear in the
Security Register, a notice that such moneys remain unclaimed and that, after a date specified in
the notice, which shall not be less than 30 days from the date on which the notice was first mailed
to the Holders of the Securities as to which the money to be repaid was held in trust, any
unclaimed balance of such moneys then remaining will be paid to the Company free of the trust
formerly impressed upon it.



     Section 10.04 Statement as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year,
a written statement signed by the principal executive officer, principal financial officer or
principal accounting officer of the Company stating that:




     (1) a review of the activities of the Company during such year and of performance under
this Indenture and under the terms of the Securities has been made under his supervision;
and




     (2) to the best of his knowledge, based on such review, the Company has fulfilled all
its obligations under this Indenture and has complied with all conditions and covenants on
its part contained in this Indenture through such year, or, if there has been a default in
the fulfillment of any such obligation, covenant or condition, specifying each such default
known to him and the nature and status thereof.



     For the purpose of this Section 10.04, default and compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the terms of this
Indenture.



     Section 10.05 Legal Existence. Subject to Article VIII, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence.



     Section 10.06 Waiver of Certain Covenants. The Company may omit in respect of any series of Securities, in any particular instance, to
comply with any covenant or condition set forth in Sections 10.04 or 10.05 or set forth in a Board
Resolution or indenture supplemental



56









 





hereto with respect to the Securities of such series, unless otherwise specified in such Board
Resolution or indenture supplemental hereto, if before or after the time for such compliance the
Holders of not less than a majority in principal amount of the Outstanding Securities of all series
affected by such waiver (voting as one class) shall, by Act of such Securityholders delivered to
the Company and the Trustee (in accordance with Section 1.04 hereof), either waive such compliance
in such instance or generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force and effect. Nothing
in this Section 10.06 shall permit the waiver of compliance with any covenant or condition set
forth in such Board Resolution or indenture supplemental hereto which, if in the form of an
indenture supplemental hereto, would not be permitted by Section 9.02 without the consent of the
Holder of each Outstanding Security affected thereby.



ARTICLE XI




Redemption of Securities




     Section 11.01 Applicability of Article. The Company may reserve the right to redeem and pay before Stated Maturity all or any part
of the Securities of any series, either by optional redemption, sinking or purchase fund or
analogous obligation or otherwise, by provision therefor in the form of Security for such series
established and approved pursuant to Section 2.02 and on such terms as are specified in such form
or in the Board Resolution or indenture supplemental hereto with respect to Securities of such
series as provided in Section 3.01. Redemption of Securities of any series shall be made in
accordance with the terms of such Securities and, to the extent that this Article does not conflict
with such terms, the succeeding Sections of this Article. Notwithstanding anything to the contrary
in this Indenture, except in the case of redemption pursuant to a sinking fund, the Trustee shall
not make any payment in connection with the redemption of Securities until the close of business on
the Redemption Date.



     Section 11.02 Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities redeemable at the election of the
Company shall be evidenced by, or pursuant to authority granted by, a Board Resolution. In case of
any redemption at the election of the Company of less than all of the Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be reasonably satisfactory to the Trustee), notify the Trustee of such Redemption Date
and of the principal amount of Securities of such series and the Tranche (as defined in Section
11.03) to be redeemed.



     In the case of any redemption of Securities (i) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company which is subject to a condition specified in the terms of
such Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with such restriction or condition.



     Section 11.03 Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of like tenor and terms of any series (a “Tranche”)
are to be redeemed, the



57









 





particular Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such Tranche not previously
called for redemption, by such method as the Trustee shall deem fair and appropriate and which may
include provision for the selection for redemption of portions of the principal of Securities of
such Tranche of a denomination larger than the minimum authorized denomination for Securities of
that series. Unless otherwise provided in the terms of a particular series of Securities, the
portions of the principal of Securities so selected for partial redemption shall be equal to the
minimum authorized denomination of the Securities of such series, or an integral multiple thereof,
and the principal amount which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series. If less than all the Securities of unlike tenor and
terms of a series are to be redeemed, the particular Tranche of Securities to be redeemed shall be
selected by the Company.



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



     Securities shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written statement signed by an authorized
officer of the Company and delivered to the Trustee at least 45 days prior to the Redemption Date
(unless a shorter period shall be reasonably satisfactory to the Trustee) as being owned of record
and beneficially by, and not pledged or hypothecated by either, (a) the Company or (b) an entity
specifically identified in such written statement as being an Affiliate of the Company.



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



     Section 11.04 Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less
than 15 (unless otherwise provided in the Board Resolution or indenture supplemental hereto
establishing the relevant series) nor more than 45 days prior to the Redemption Date, to each
holder of Securities to be redeemed, at his address appearing in the Security Register.



     All notices of redemption shall state:




     (1) the Redemption Date;




     (2) the Redemption Price;




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



58









 






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




     (5) the place where such Securities are to be surrendered for payment of the Redemption
Price, which shall be the office or agency of the Company in the Place of Payment;




     (6) that the redemption is on account of a sinking or purchase fund, or other analogous
obligation, if that be the case;




     (7) if such Securities are convertible into Common Stock or other securities, the
Conversion Price or other conversion price and the date on which the right to convert such
Securities into Common Stock or other securities will terminate; and




     (8) if applicable, that the redemption may be rescinded by the Company, at its sole
option, pursuant to Section 11.09 of this Indenture upon the occurrence of a Redemption
Rescission Event.



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of
the Company; provided that if the Trustee is asked to give such notice it shall be given at least
five Business Days prior notice.



     Section 11.05 Deposit of Redemption Price. On or prior to any Redemption Date and subject to Section 11.09, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date. If any Security to be
redeemed is converted into Common Stock or other securities, any money so deposited with the
Trustee or a Paying Agent shall be paid to the Company upon Company Request or, if then so
segregated and held in trust by the Company, shall be discharged from such trust.



     Section 11.06 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
subject to Section 11.09, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default in the payment of
the Redemption Price) such Securities shall cease to bear interest and any rights to convert such
Securities shall terminate. Upon surrender of such Securities for redemption in accordance with the
notice and subject to Section 11.09, such Securities shall be paid by the Company at the Redemption
Price. Unless otherwise provided with respect to such Securities pursuant to Section 3.01,
installments of interest the Stated Maturity of which is on or prior to the Redemption Date shall
be payable to the Holders of such Securities registered as such on the relevant Regular Record
Dates according to their terms and the provisions of Section 3.07.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate
borne by the Security, or as otherwise provided in such Security.



59









 





     Section 11.07 Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at the office or
agency of the Company in the Place of Payment with respect to that series (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or Securities of the
same series and Stated Maturity and of like tenor and terms, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.



     Section 11.08 Provisions with Respect to Any Sinking Funds. Unless the form or terms of any series of Securities shall provide otherwise, in lieu of
making all or any part of any mandatory sinking fund payment with respect to such series of
Securities in cash, the Company may at its option (1) deliver to the Trustee for cancellation any
Securities of such series theretofore acquired by the Company or converted by the Holder thereof
into Common Stock or other securities, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company (including by way of optional redemption (pursuant
to the sinking fund or otherwise but not by way of mandatory sinking fund redemption) or converted
by the Holder thereof into Common Stock or other securities and theretofore delivered to the
Trustee for cancellation, and if it does so then (i) Securities so delivered or credited shall be
credited at the applicable sinking fund Redemption Price with respect to Securities of such series,
and (ii) on or before the 60th day next preceding each sinking fund Redemption Date with respect to
such series of Securities, the Company will deliver to the Trustee (A) an Officers’ Certificate
specifying the portions of such sinking fund payment to be satisfied by payment of cash and by
delivery or credit of Securities of such series acquired by the Company or converted by the Holder
thereof, and (B) such Securities, to the extent not previously surrendered. Such Officers’
Certificate shall also state the basis for such credit and that the Securities for which the
Company elects to receive credit have not been previously so credited and were not acquired by the
Company through operation of the mandatory sinking fund, if any, provided with respect to such
Securities and shall also state that no Event of Default with respect to Securities of such series
has occurred and is continuing. All Securities so delivered to the Trustee shall be canceled by the
Trustee and no Securities shall be authenticated in lieu thereof.



     If the sinking fund payment or payments (mandatory or optional) with respect to any series of
Securities made in cash plus any unused balance of any preceding sinking fund payments with respect
to Securities of such series made in cash shall exceed $50,000 (or a lesser sum if the Company
shall so request), unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect to Securities of
such series next following the date of such payment to the redemption of Securities of such series
at the applicable sinking fund Redemption Price with respect to Securities of such series, together
with accrued interest, if any, to the date fixed for redemption, with the effect provided in
Section 11.06. The Trustee shall select, in the manner provided in Section 11.03, for redemption on
such sinking fund Redemption Date a sufficient principal amount of Securities of such series to
utilize that cash and shall thereupon cause notice of redemption of the Securities of such series
for the sinking fund to be given in the manner provided in Section 11.04 (and with the effect
provided in Section 11.06) for the redemption of



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Securities in part at the option of the Company. Any sinking fund moneys not so applied or
allocated by the Trustee to the redemption of Securities of such series shall be added to the next
cash sinking fund payment with respect to Securities of such series received by the Trustee and,
together with such payment, shall be applied in accordance with the provisions of this Section
11.08. Any and all sinking fund moneys with respect to Securities of any series held by the Trustee
at the Maturity of Securities of such series, and not held for the payment or redemption of
particular Securities of such series, shall be applied by the Trustee, together with other moneys,
if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity.



     On or before each sinking fund Redemption Date provided with respect to Securities of any
series, the Company shall pay to the Trustee in cash a sum equal to all accrued interest, if any,
to the date fixed for redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 11.08.



     Section 11.09 Rescission of Redemption. In the event that this Section 11.09 is specified to be applicable to a series of Securities
pursuant to Section 3.01 and a Redemption Rescission Event shall occur following any day on which a
notice of redemption shall have been given pursuant to Section 11.04 hereof but at or prior to the
time and date fixed for redemption as set forth in such notice of redemption, the Company may, at
its sole option, at any time prior to the earlier of (i) the close of business on that day which is
two Trading Days following such Redemption Rescission Event and (ii) the time and date fixed for
redemption as set forth in such notice, rescind the redemption to which such notice of redemption
shall have related by making a public announcement of such rescission (the date on which such
public announcement shall have been made being hereinafter referred to as the “Rescission
Date”). The Company shall be deemed to have made such announcement if it shall issue a release
to the Dow Jones New Service, Reuters Information Services or any successor news wire service. From
and after the making of such announcement, the Company shall have no obligation to redeem
Securities called for redemption pursuant to such notice of redemption or to pay the Redemption
Price therefor and all rights of Holders of Securities shall be restored as if such notice of
redemption had not been given. As promptly as practicable following the making of such
announcement, the Company shall telephonically notify the Trustee and the Paying Agent of such
rescission. The Company shall give notice of any such rescission by first-class mail, postage
prepaid, mailed as promptly as practicable but in no event later than the close of business on that
day which is five Trading Days following the Rescission Date to each Holder of Securities at the
close of business on the Rescission Date and to the Trustee and the Paying Agent. Each notice of
rescission shall (A) state that the redemption described in the notice of redemption has been
rescinded and (B) state that such form must be properly completed and received by the Company no
later than the close of business on a date that shall be 15 Trading Days following the date of the
mailing of such notice of rescission.



ARTICLE XII




Subordination of Securities




     Section 12.01 Agreement of Subordination. The Company covenants and agrees, and each holder of Securities issued hereunder by his
acceptance thereof likewise covenants and



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agrees, that all Securities shall be issued subject to the provisions of this Article XII; and
each Securityholder, whether upon original issue or upon transfer or assignment thereof, accepts
and agrees to be bound by such provisions.



     The payment of the principal of, premium, if any, and interest on all Securities issued
hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and subject
in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at
the date of this Indenture or thereafter incurred.



     The provisions of this Article XII define the subordination of the Securities, as obligations
of the Company, with respect to Senior Indebtedness of the Company, as defined for the Company. All
such provisions shall also be deemed to apply in the same way (mutatis mutandis) to each Guarantor,
with appropriate corresponding references to the Senior Indebtedness of such Guarantor.



     No provision of this Article XII shall prevent the occurrence of any default or Event of
Default hereunder.



     Section 12.02 Payments to Securityholders. In the event and during the continuation of any default in the payment of principal,
premium, interest or any other payment due on any Senior Indebtedness of the Company continuing
beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior
Indebtedness of the Company, then, unless and until such default shall have been cured or waived or
shall have ceased to exist, no payment shall be made by the Company with respect to the principal
of, or premium, if any, or interest on the Securities, except sinking fund payments made by the
acquisition of Securities under Section 11.08 prior to the happening of such default and payments
made pursuant to Article IV hereof from monies deposited with the Trustee pursuant thereto prior to
the happening of such default.



     Upon any payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior
Indebtedness of the Company shall first be paid in full, or payment thereof provided for in money
in accordance with its terms, before any payment is made on account of the principal (and premium,
if any) or interest on the Securities (except payments made pursuant to Article IV hereof from
monies deposited with the Trustee pursuant thereto prior to the happening of such dissolution,
winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Company, or distribution of assets of the Company
of and kind or character, whether in cash, property or securities, to which the holders of the
Securities or the Trustee would be entitled, except for the provisions of this Article XII, shall
(except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the holders of the
Securities or by the Trustee under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness of the Company held by such holders, as calculated by the
Company) or their representative or representatives, or to



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the trustee or trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness of the Company may have been issued, as their respective interests may appear,
to the extent necessary to pay all Senior Indebtedness of the Company in full, in money or money’s
worth, after giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness of the Company, before any payment or distribution is made to the holders of
the Securities or to the Trustee.



     In the event that, notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee or the holders of the Securities before all Senior
Indebtedness of the Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Indebtedness of the Company or their
representative or representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness of the Company may have been issued, as
their respective interests may appear, as calculated by the Company, for application to the payment
of all Senior Indebtedness of the Company remaining unpaid to the extent necessary to pay all
Senior Indebtedness of the Company in full in money in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness.



     For purposes of this Article XII, the words, “cash, property or securities” shall not be
deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article XII with respect
to the Securities to the payment of all Senior Indebtedness of the Company which may at the time be
outstanding; provided that (i) the Senior Indebtedness of the Company is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness of the Company (other than leases) and of leases which are
assumed are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article 8 hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 12.02 if such other
corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article 8 hereof. Nothing in this Section 12.02 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.07.



     Section 12.03 Subrogation of Securities. Subject to the payment in full of all Senior Indebtedness of the Company, the rights of the
holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness
of the Company to receive payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness of the Company until the principal of (and premium, if any)
and interest on the Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of the Company of any cash,
property or securities to which the holders of the Securities or the Trustee would be entitled
except for the



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provisions of this Article XII no payment over pursuant to the provisions of this Article XII,
to or for the benefit of the holders of Senior Indebtedness of the Company by holders of the
Securities or the Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness of the Company. It is understood that the
provisions of this Article XII are and are intended solely for the purpose of defining the relative
rights of the holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness of the Company, on the other hand.



     Nothing contained in this Article XII or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company, its creditors other than the holders of its
Senior Indebtedness, and the holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the Securities the principal of (and premium,
if any) and interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative rights of the holders
of the Securities and creditors of the Company other than the holders of its Senior Indebtedness,
nor shall anything herein or therein prevent the Trustee or the holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article XII of the holders of Senior Indebtedness of the
Company in respect of cash, property or securities of the Company received upon the exercise of any
such remedy.



     Upon any payment or distribution of assets of the Company referred to in this Article XII, the
Trustee, subject to the provisions of Section 6.01, and the holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, delivered to the Trustee or to the holders of the Securities, for the purpose of
ascertaining the Persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article XII.



     Section 12.04 Authorization by Securityholders. Each holder of a Security by his acceptance thereof authorizes and directs the Trustee in
his behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article XII appoints the Trustee his attorney-in-fact for any and all such
purposes.



     Section 12.05 Notice to Trustee. The Company shall give promptly written notice to a Responsible Officer of the Trustee of
any fact known to the Company which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article XII.
Notwithstanding the provisions of this Article XII or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article XII, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee from the Company or a
holder or holders of Senior Indebtedness or



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from any trustee therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.01, shall be entitled in all respects to assume that no such
facts exist; provided that if on a date not fewer than three Business Days prior to the date upon
which by the terms hereof any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on any Security) the
Trustee shall not have received, with respect to such monies, the notice provided for in this
Section 12.05, then, anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary which may be received
by it on or after such prior date.



     Notwithstanding anything to the contrary hereinbefore set forth, nothing shall prevent any
payment by the Company or the Trustee to the Securityholders of monies in connection with a
redemption of Securities if (i) notice of such redemption has been given pursuant to Article XI or
Section 4.01 hereof prior to the receipt by the Trustee of written notice as aforesaid, and (ii)
such notice of redemption is given not earlier than 60 days before the redemption date.



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



     Section 12.06 Trustee’s Relation to Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article XII in respect of any Senior Indebtedness of the Company at any time held by it, to the
same extent as any other holder of Senior Indebtedness of the Company and nothing elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.



     With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are specifically set forth in
this Article XII, and no implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Company
and the Trustee shall not be liable to any holder of Senior Indebtedness of the Company if it shall
pay over or deliver to holders of Securities, the Company or any other Person money or assets to
which any holder of Senior Indebtedness of the Company shall be entitled by virtue of this Article
XII or otherwise.



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     Section 12.07 No Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise be charge with.



     Section 12.08 Rights of Trustee. Nothing in this Article XII shall apply to claims of or payments to, the Trustee pursuant to
Section 6.07 or 4.02.



     Section 12.09 Applicable to Paying Agents. The term “Trustee” as used in this Article XII, shall (unless the context otherwise
requires) be construed as extending to and including the Paying Agent within its meaning as fully
for all intents and purposes as if the Paying Agent were named in this Article XII in addition to
in place of the Trustee; provided, however, that Sections 12.06 and 12.08 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.



ARTICLE XIII




Guarantees




     Section 13.01 Guarantees. Any series of Securities may be guaranteed by one or more of the Subsidiaries of the Company
or other Persons. The terms and the form of any such Guarantee will be established in the manner
contemplated by Section 3.01 for the particular series of Securities. Each Guarantor, as primary
obligor and not merely as surety, will fully, irrevocably and unconditionally guarantee, on a
subordinated basis, to each Holder of Securities (including each Holder of Securities issued under
the Indenture after the date of this Indenture) and to the Trustee and its successors and assigns
(i) the full and punctual payment of principal of and interest on the Securities when due, whether
at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the
Company under this Indenture (including obligations to the Trustee) and the Securities and (ii) the
full and punctual performance within applicable grace periods of all other obligations of the
Company under this Indenture and the Securities. The obligations of each Guarantor under any such
Guarantee will be junior and subordinated in right of payment to the Senior Indebtedness of such
Guarantor in the same manner and to the same extent as the Securities are subordinated to the
Senior Indebtedness of the Issuer.



     (a) Each of the Guarantors further agrees to waive presentment to, demand of payment from and
protest to the Company or any other Person, and also waives diligence, notice of acceptance of its
Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims
with a court in the event of merger or bankruptcy of the Company or any other Person and any right
to require a proceeding first against the Company or any other Person. The obligations of the
Guarantors shall not be affected by any failure or policy on the part of the Trustee to exercise
any right or remedy under this Indenture or the Securities of any series.



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     (b) The obligation of each Guarantor to make any payment hereunder may be satisfied by causing
the Company or any other Person to make such payment. If any Holder of any Security or the Trustee
is required by any court or otherwise to return to the Company or any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to any of the Company or any
Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee of such
Guarantor, to the extent theretofore discharged, shall be reinstated in full force and effect.



     (c) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder of Securities in enforcing any of
their respective rights under its Guarantees.



     (d) Any term or provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of each of the Guarantees shall not exceed the maximum amount that can be
guaranteed by the relevant Guarantor without rendering the relevant Guarantee under this Indenture
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar
laws affecting the rights of creditors generally.



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



	 	 	 	 	 
	 	[GRAPHIC PACKAGING HOLDING
COMPANY]
[GRAPHIC
PACKAGING INTERNATIONAL, INC.]

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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