Exhibit 4.1


 




 


 





CF
INDUSTRIES, INC.


 


INDENTURE


 


Dated
as of April 23, 2010


 






 


DEBT
SECURITIES


 






 


WELLS FARGO
BANK, NATIONAL ASSOCIATION


 


Trustee




 


 





 

















 


CROSS
REFERENCE SHEET*


 


Provisions
of the Trust Indenture Act (as defined herein) and the Indenture, dated as of April
23, 2010, among CF Industries, Inc., CF Industries Holdings, Inc. and
Wells Fargo Bank, National Association, as Trustee:


 


	
  Section of
  the

  	
   

  	
  Section of

  
	
  Trust
  Indenture Act

  	
   

  	
  the
  Indenture

  
	
  310(a)(1), (2) and
  (5)

  	
   

  	
  11.04(a)

  
	
  310(a)(3) and (4)

  	
   

  	
  Not Applicable

  
	
  310(b)

  	
   

  	
  11.04(b) and
  11.05

  
	
  310(c)

  	
   

  	
  Not Applicable

  
	
  311(a)

  	
   

  	
  11.11

  
	
  311(b)

  	
   

  	
  11.11

  
	
  311(c)

  	
   

  	
  Not Applicable

  
	
  312(a)

  	
   

  	
  10.03

  
	
  312(b)

  	
   

  	
  11.10

  
	
  312(c)

  	
   

  	
  11.10

  
	
  313(a)

  	
   

  	
  10.01(a)

  
	
  313(b)(1)

  	
   

  	
  Not Applicable

  
	
  313(b)(2)

  	
   

  	
  10.01(a)

  
	
  313(c)

  	
   

  	
  10.01(a)

  
	
  313(d)

  	
   

  	
  10.01(b)

  
	
  314(a)

  	
   

  	
  10.02

  
	
  314(b)

  	
   

  	
  Not Applicable

  
	
  314(c)(1) and (2)

  	
   

  	
  16.01(a)

  
	
  314(c)(3)

  	
   

  	
  Not Applicable

  
	
  314(d)

  	
   

  	
  Not Applicable

  
	
  314(e)

  	
   

  	
  16.01(b)

  
	
  314(f)

  	
   

  	
  Not Applicable

  
	
  315(a), (c) and
  (d)

  	
   

  	
  11.02(a) and
  (b)

  
	
  315(b)

  	
   

  	
  11.03

  
	
  315(e)

  	
   

  	
  7.08

  
	
  316(a)(1)

  	
   

  	
  7.06

  
	
  316(a)(2)

  	
   

  	
  Not applicable

  
	
  316(a) (last
  sentence)

  	
   

  	
  1.01 (definition
  of “Outstanding”)

  
	
  316(b)

  	
   

  	
  7.07

  
	
  317(a)

  	
   

  	
  7.03 and 7.04

  
	
  317(b)

  	
   

  	
  6.03(b)

  
	
  318(a) and (c)

  	
   

  	
  16.02

  
	
  318(b)

  	
   

  	
  Not Applicable

  



 






*     This Cross Reference Sheet is not part of
the Indenture.


 

















 


TABLE
OF CONTENTS*


 


ARTICLE I


 


DEFINITIONS


 


	
  Section 1.01

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  
	
   

  
	
  FORMS OF
  SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Terms
  of the Securities

  	
  9

  
	
  Section 2.02

  	
  Form of
  Trustee’s Certificate of Authentication

  	
  9

  
	
  Section 2.03

  	
  Form of
  Trustee’s Certificate of Authentication by an Authenticating Agent

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  
	
   

  
	
  THE DEBT
  SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Amount
  Unlimited; Issuable in Series

  	
  10

  
	
  Section 3.02

  	
  Denominations

  	
  12

  
	
  Section 3.03

  	
  Execution,
  Authentication, Delivery and Dating

  	
  12

  
	
  Section 3.04

  	
  Temporary
  Securities

  	
  14

  
	
  Section 3.05

  	
  Registrar

  	
  14

  
	
  Section 3.06

  	
  Transfer
  and Exchange

  	
  14

  
	
  Section 3.07

  	
  Mutilated,
  Destroyed, Lost and Stolen Securities

  	
  17

  
	
  Section 3.08

  	
  Payment
  of Interest; Interest Rights Preserved

  	
  18

  
	
  Section 3.09

  	
  Cancellation

  	
  18

  
	
  Section 3.10

  	
  Computation
  of Interest

  	
  19

  
	
  Section 3.11

  	
  Currency
  of Payments in Respect of Securities

  	
  19

  
	
  Section 3.12

  	
  Judgments

  	
  19

  
	
  Section 3.13

  	
  CUSIP
  Numbers

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  
	
   

  
	
  REDEMPTION
  OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Applicability
  of Right of Redemption

  	
  20

  
	
  Section 4.02

  	
  Selection
  of Securities to be Redeemed

  	
  20

  
	
  Section 4.03

  	
  Notice
  of Redemption

  	
  20

  
	
  Section 4.04

  	
  Deposit
  of Redemption Price

  	
  21

  
	
  Section 4.05

  	
  Securities
  Payable on Redemption Date

  	
  21

  
	
  Section 4.06

  	
  Securities
  Redeemed in Part

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  SINKING
  FUNDS

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Applicability
  of Sinking Fund

  	
  21

  
	
  Section 5.02

  	
  Mandatory Sinking Fund Obligation

  	
  22

  



 


i

















 


	
  Section 5.03

  	
  Optional
  Redemption at Sinking Fund Redemption Price

  	
  22

  
	
  Section 5.04

  	
  Application
  of Sinking Fund Payment

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  
	
   

  
	
  PARTICULAR
  COVENANTS OF THE COMPANY

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Payments
  of Securities

  	
  23

  
	
  Section 6.02

  	
  Paying
  Agent

  	
  23

  
	
  Section 6.03

  	
  To
  Hold Payment in Trust

  	
  24

  
	
  Section 6.04

  	
  Merger,
  Consolidation and Sale of Assets

  	
  25

  
	
  Section 6.05

  	
  Compliance
  Certificate

  	
  25

  
	
  Section 6.06

  	
  Conditional
  Waiver by Holders of Securities

  	
  25

  
	
  Section 6.07

  	
  Statement
  by Officers as to Default

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  
	
   

  
	
  REMEDIES
  OF TRUSTEE AND SECURITYHOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Events
  of Default

  	
  26

  
	
  Section 7.02

  	
  Acceleration;
  Rescission and Annulment

  	
  27

  
	
  Section 7.03

  	
  Other
  Remedies

  	
  28

  
	
  Section 7.04

  	
  Trustee
  as Attorney-in-Fact

  	
  28

  
	
  Section 7.05

  	
  Priorities

  	
  29

  
	
  Section 7.06

  	
  Control
  by Securityholders; Waiver of Past Defaults

  	
  29

  
	
  Section 7.07

  	
  Limitation
  on Suits

  	
  30

  
	
  Section 7.08

  	
  Undertaking
  for Costs

  	
  30

  
	
  Section 7.09

  	
  Remedies
  Cumulative

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  
	
   

  
	
  CONCERNING
  THE SECURITYHOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Evidence
  of Action of Securityholders

  	
  31

  
	
  Section 8.02

  	
  Proof
  of Execution or Holding of Securities

  	
  31

  
	
  Section 8.03

  	
  Persons
  Deemed Owners

  	
  32

  
	
  Section 8.04

  	
  Effect
  of Consents

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  
	
   

  
	
  SECURITYHOLDERS’
  MEETINGS

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Purposes
  of Meetings

  	
  32

  
	
  Section 9.02

  	
  Call
  of Meetings by Trustee

  	
  32

  
	
  Section 9.03

  	
  Call
  of Meetings by Company or Securityholders

  	
  32

  
	
  Section 9.04

  	
  Qualifications
  for Voting

  	
  33

  
	
  Section 9.05

  	
  Regulation
  of Meetings

  	
  33

  
	
  Section 9.06

  	
  Voting

  	
  33

  
	
  Section 9.07

  	
  No Delay of Rights by Meeting

  	
  33

  



 


ii

















 


	
  ARTICLE X

  
	
   

  
	
  REPORTS
  BY THE COMPANY AND THE TRUSTEE AND

  
	
  SECURITYHOLDERS’
  LISTS

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Reports
  by Trustee

  	
  34

  
	
  Section 10.02

  	
  Reports
  by the Company

  	
  34

  
	
  Section 10.03

  	
  Securityholders’
  Lists

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  
	
   

  
	
  CONCERNING
  THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Rights
  of Trustees; Compensation and Indemnity

  	
  35

  
	
  Section 11.02

  	
  Duties
  of Trustee

  	
  37

  
	
  Section 11.03

  	
  Notice
  of Defaults

  	
  37

  
	
  Section 11.04

  	
  Eligibility;
  Disqualification

  	
  38

  
	
  Section 11.05

  	
  Registration
  and Notice; Removal

  	
  38

  
	
  Section 11.06

  	
  Successor
  Trustee by Appointment

  	
  39

  
	
  Section 11.07

  	
  Successor
  Trustee by Merger

  	
  40

  
	
  Section 11.08

  	
  Right
  to Rely on Officer’s Certificate

  	
  40

  
	
  Section 11.09

  	
  Appointment
  of Authenticating Agent

  	
  40

  
	
  Section 11.10

  	
  Communications
  by Securityholders with Other Securityholders

  	
  41

  
	
  Section 11.11

  	
  Preferential
  Collection of Claims Against the Company

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  
	
   

  
	
  SATISFACTION
  AND DISCHARGE; DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Applicability
  of Article

  	
  41

  
	
  Section 12.02

  	
  Satisfaction
  and Discharge of Indenture

  	
  41

  
	
  Section 12.03

  	
  Defeasance
  upon Deposit of Moneys or U.S. Government Obligations

  	
  42

  
	
  Section 12.04

  	
  Repayment
  to Company

  	
  43

  
	
  Section 12.05

  	
  Indemnity
  for U.S. Government Obligations

  	
  43

  
	
  Section 12.06

  	
  Deposits
  to Be Held in Escrow

  	
  44

  
	
  Section 12.07

  	
  Application
  of Trust Money

  	
  44

  
	
  Section 12.08

  	
  Deposits
  of Non-U.S. Currencies

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  
	
   

  
	
  IMMUNITY
  OF CERTAIN PERSONS

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  No
  Personal Liability

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV

  
	
   

  
	
  SUPPLEMENTAL
  INDENTURES

  
	
   

  	
   

  	
   

  
	
  Section 14.01

  	
  Without
  Consent of Securityholders

  	
  45

  
	
  Section 14.02

  	
  With
  Consent of Securityholders; Limitations

  	
  46

  
	
  Section 14.03

  	
  Trustee
  Protected

  	
  47

  
	
  Section 14.04

  	
  Effect of Execution of Supplemental Indenture

  	
  48

  



 


iii

















 


	
  Section 14.05

  	
  Notation
  on or Exchange of Securities

  	
  48

  
	
  Section 14.06

  	
  Conformity
  with TIA

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XV

  
	
   

  
	
  SUBORDINATION
  OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 15.01

  	
  Agreement
  to Subordinate

  	
  48

  
	
  Section 15.02

  	
  Distribution
  on Dissolution, Liquidation and Reorganization; Subrogation of Securities

  	
  48

  
	
  Section 15.03

  	
  No
  Payment on Securities in Event of Default on Senior Indebtedness

  	
  49

  
	
  Section 15.04

  	
  Payments
  on Securities Permitted

  	
  50

  
	
  Section 15.05

  	
  Authorization
  of Securityholders to Trustee to Effect Subordination

  	
  50

  
	
  Section 15.06

  	
  Notices
  to Trustee

  	
  50

  
	
  Section 15.07

  	
  Trustee
  as Holder of Senior Indebtedness

  	
  50

  
	
  Section 15.08

  	
  Modifications
  of Terms of Senior Indebtedness

  	
  50

  
	
  Section 15.09

  	
  Reliance
  on Judicial Order or Certificate of Liquidating Agent

  	
  51

  
	
  Section 15.10

  	
  Satisfaction
  and Discharge; Defeasance and Covenant Defeasance

  	
  51

  
	
  Section 15.11

  	
  Trustee
  Not Fiduciary for Holders of Senior Indebtedness

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XVI

  
	
   

  
	
  MISCELLANEOUS
  PROVISIONS

  
	
   

  	
   

  	
   

  
	
  Section 16.01

  	
  Certificates
  and Opinions as to Conditions Precedent

  	
  51

  
	
  Section 16.02

  	
  Trust
  Indenture Act Controls

  	
  52

  
	
  Section 16.03

  	
  Notices
  to the Company and Trustee

  	
  52

  
	
  Section 16.04

  	
  Notices
  to Securityholders; Waiver

  	
  52

  
	
  Section 16.05

  	
  Legal
  Holiday

  	
  53

  
	
  Section 16.06

  	
  Effects
  of Headings and Table of Contents

  	
  53

  
	
  Section 16.07

  	
  Successors
  and Assigns

  	
  53

  
	
  Section 16.08

  	
  Separability
  Clause

  	
  53

  
	
  Section 16.09

  	
  Benefits
  of Indenture

  	
  53

  
	
  Section 16.10

  	
  Counterparts
  Originals

  	
  53

  
	
  Section 16.11

  	
  Governing
  Law; Waiver of Trial by Jury

  	
  53

  



 






*     This Table of Contents is not a part of the
Indenture.


 


iv

















 


INDENTURE
dated as of April 23, 2010, among CF Industries, Inc., a Delaware
corporation (the “Company”), CF Industries Holdings, Inc., a Delaware
corporation (the “Parent”), and Wells Fargo Bank, National Association, as
trustee (the “Trustee”).


 


WITNESSETH:


 


WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of debentures, notes, bonds or other evidences of
indebtedness (the “Securities”) in an unlimited aggregate principal amount to
be issued from time to time in one or more series as provided in this
Indenture, and the Parent has duly authorized the execution and delivery of
this Indenture to provide for the guarantee by the Parent of the Securities;
and


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


That,
in consideration of the premises and the purchase of the Securities by the
Holders thereof for the equal and proportionate benefit of all of the present
and future Holders of the Securities, each party agrees and covenants as
follows:


 


ARTICLE I


 


DEFINITIONS


 


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


 


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


 


(b)           all terms used herein without
definition which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;


 


(c)           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; and


 


(d)           references to “Article” or “Section”
or other subdivision herein are references to an Article, Section or other
subdivision of the Indenture, unless the context otherwise requires.


 


Section 1.01           Definitions.
Unless the context otherwise requires, the terms defined in this Section 1.01
shall for all purposes of this Indenture have the meanings hereinafter set
forth, the following definitions to be equally applicable to both the singular
and the plural forms of any of the terms herein defined:


 


Affiliate:


 


The
term “Affiliate,” with respect to any specified Person shall mean 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.


 


Agent:


 


The
term “Agent” means any Security Custodian, Registrar, Paying Agent, transfer
agent or Authenticating Agent.


 

















 


Applicable Procedures:


 


The Term “Applicable
Procedures” means, with respect to any payment, tender, redemption, transfer or
transaction involving a Global Security or beneficial interests therein, the rules and
procedures of the Depositary for such Global Security, in each case to the extent
applicable to such payment, tender, redemption, transfer or transaction and as
in effect from time to time.


 


Authenticating Agent:


 


The
term “Authenticating Agent” shall have the meaning assigned to it in Section 11.09.


 


Board of Directors:


 


The
term “Board of Directors” shall mean either the board of directors of the
Company or the executive or any other committee of that board duly authorized
to act in respect hereof.


 


Board Resolution:


 


The
term “Board Resolution” shall mean a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors (or by a committee of the Board of
Directors to the extent that such committee has been authorized by the Board of
Directors to establish or approve the matters contemplated) and to be in full
force and effect on the date of such certification.


 


Business Day:


 


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


 


Capital Stock:


 


The
term “Capital Stock” shall mean:


 


(a)           in the case of a corporation,
corporate stock;


 


(b)           in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;


 


(c)           in the case of a partnership or
limited liability company, partnership interests (whether general or limited)
or membership interests; and


 


(d)           any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock, whether or
not such debt securities include any right of participation with Capital Stock.


 


Code:


 


The
term “Code” shall mean the Internal Revenue Code of 1986, as amended.


 


Company:


 


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


 


2

















 


Company Order:


 


The
term “Company Order” shall mean a written order signed in the name of the
Company by the Chief Executive Officer, the President, any Executive Vice
President, any Senior Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller or Corporate Controller, any
Assistant Corporate Controller or Assistant Controller, the General Counsel,
any Vice President, the Secretary or any Assistant Secretary of the Company,
and delivered to the Trustee.


 


Corporate Trust Office:


 


The
term “Corporate Trust Office,” or other similar term, shall mean the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
230 West Monroe Street, Suite 2900, Chicago, Illinois 60606, Attention:
Corporate Trust Services, except that, with respect to presentation of
the Securities for payment or registration of transfers or exchanges and the
location of the Register and Registrar, such term means the office or agency of
the Trustee in Minneapolis, Minnesota, which at the date of original execution
of this Indenture is located at 608 Second Avenue South, N9303-121,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Operations, or
such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Company).


 


Currency:


 


The
term “Currency” shall mean U.S. Dollars or Foreign Currency.


 


Default:


 


The
term “Default” shall have the meaning assigned to it in Section 11.03.


 


Defaulted Interest:


 


The
term “Defaulted Interest” shall have the same meaning assigned to it in Section 3.08(b).


 


Depositary:


 


The
term “Depositary” shall mean, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.01
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such Person, “Depositary” as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Securities of
that series.


 


Designated Currency:


 


The
term “Designated Currency” shall have the same meaning assigned to it in Section 3.12.


 


Discharged:


 


The term
“Discharged” shall have the meaning assigned to it in Section 12.03.


 


Event of Default:


 


The
term “Event of Default” shall have the meaning specified in Section 7.01.


 


Exchange Act:


 


The
term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.


 


3

















 


Exchange Rate:


 


The
term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.


 


Floating Rate Security:


 


The
term “Floating Rate Security” shall mean a Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 3.01.


 


Foreign Currency:


 


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


 


GAAP:


 


The
term “GAAP,” with respect to any computation required or permitted hereunder,
shall mean generally accepted accounting principles in effect in the United
States as in effect from time to time, including, without limitation, those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession.


 


Global Security:


 


The
term “Global Security” shall mean any Security that evidences all or part of a
series of Securities, issued in fully-registered certificated form to the
Depositary or its nominee for such series in accordance with Section 3.03
and bearing the legend prescribed in Section 3.03(g).


 


Holder; Holder of
Securities:


 


The
terms “Holder” and “Holder of Securities” are defined under “Securityholder;
Holder of Securities; Holder.”


 


Indebtedness:


 


The
term “Indebtedness” shall mean any and all obligations of a Person for money
borrowed which, in accordance with GAAP, would be reflected on the balance
sheet of such Person as a liability on the date as of which Indebtedness is to
be determined.


 


Indenture:


 


The
term “Indenture” or “this Indenture” shall mean this instrument and all
indentures supplemental hereto, including the terms of the Securities.


 


Interest:


 


The
term “interest” shall mean, with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, interest payable after
Maturity.


 


Interest Payment Date:


 


The
term “Interest Payment Date” shall mean, with respect to any Security, the
Stated Maturity of an installment of interest on such Security.


 


Mandatory Sinking Fund
Payment:


 


The
term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).


 


4
















 


Maturity:


 


The
term “Maturity,” with respect to any Security, shall mean the date on which the
principal of such Security shall become due and payable as therein and herein
provided, whether by declaration, call for redemption or otherwise.


 


Members:


 


The
term “Members” shall have the meaning assigned to it in Section 3.03(i).


 


Officer’s Certificate:


 


The
term “Officer’s Certificate” shall mean a certificate signed by any of the
Chief Executive Officer, the President, any Executive Vice President, any Senior
Vice President, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller or Corporate Controller, any Assistant Controller or
Assistant Corporate Controller, the General Counsel, any Vice President, the
Secretary or any Assistant Secretary of the Company. Each such certificate
shall include the statements provided for in Section 16.01 if and to the
extent required by the provisions of such Section.


 


Opinion of Counsel:


 


The
term “Opinion of Counsel” shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company, or may be
other counsel reasonably satisfactory to the Trustee that meets the
requirements provided for in Section 16.01.


 


Optional Sinking Fund Payment:


 


The
term “Optional Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).


 


Original Issue Discount Security:


 


The
term “Original Issue Discount Security” shall mean any Security that is issued
with “original issue discount” within the meaning of Section 1273(a) of
the Code and the regulations thereunder and any other Security designated by
the Company as issued with original issue discount for United States federal
income tax purposes.


 


Outstanding:


 


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


 


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


 


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


 


(c)           Securities that have
been paid pursuant to Section 3.07(b) or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to a Responsible Officer of the Trustee proof satisfactory
to it that such Securities are held by a protected purchaser in whose hands such
Securities are valid obligations of the Company;


 


provided, however, that in determining whether the
Holders of the requisite principal amount of Securities of a series Outstanding
have performed any action hereunder, Securities owned by the Company or any
other obligor


 


5

















 


upon the Securities of such series or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such action, only Securities of such series that a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned that 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 with respect to such Securities and that the pledgee
is not the Company or any other obligor upon such Securities or any Affiliate
of the Company or of such other obligor. In determining whether the Holders of
the requisite principal amount of Outstanding Securities of a series have
performed any action hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purpose shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 7.02 and the principal amount of a Security
denominated in a Foreign Currency that shall be deemed to be Outstanding for
such purpose shall be the amount calculated pursuant to Section 3.11(b).


 


Paying Agent:


 


The
term “Paying Agent” shall have the meaning assigned to it in Section 6.02(a).


 


Person:


 


The
term “Person” shall mean an individual, a corporation, a limited liability
company, a partnership, an association, a joint stock company, a trust, an
unincorporated organization or a government or an agency or political
subdivision thereof.


 


Place of Payment:


 


The
term “Place of Payment” shall mean, when used with respect to the Securities of
any series, the place or places where the principal of and premium, if any, and
interest on the Securities of that series are payable as specified pursuant to Section 3.01.


 


Predecessor Security:


 


The
term “Predecessor Security” shall mean, with respect to any Security, 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 3.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.


 


Record Date:


 


The
term “Record Date” shall mean, with respect to any interest payable on any
Security on any Interest Payment Date, the close of business on any date
specified in such Security for the payment of interest pursuant to Section 3.01.


 


Redemption Date:


 


The
term “Redemption Date” shall mean, when used with respect to any Security to be
redeemed, in whole or in part, the date fixed for such redemption by or
pursuant to this Indenture and the terms of such Security, which, in the case
of a Floating Rate Security, unless otherwise specified pursuant to Section 3.01,
shall be an Interest Payment Date only.


 


Redemption Price:


 


The
term “Redemption Price,” when used with respect to any Security to be redeemed,
in whole or in part, shall mean the price at which it is to be redeemed
pursuant to the terms of the Security and this Indenture.


 


Register:


 


The
term “Register” shall have the meaning assigned to it in Section 3.05(a).


 


6

















 


Registrar:


 


The
term “Registrar” shall have the meaning assigned to it in Section 3.05(a).


 


Responsible Officer:


 


The
term “Responsible Officer” of the Trustee hereunder shall mean any vice
president, any assistant vice president, any trust officer, any assistant trust
officer or any other officer associated with the corporate trust department of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers who shall have direct responsibility for the
administration of this Indenture, and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of such person’s knowledge of and familiarity with the
particular subject.


 


SEC:


 


The
term “SEC” shall mean the U.S. Securities and Exchange Commission, as
constituted from time to time.


 


Securities Act:


 


The
term “Securities Act” shall mean the Securities Act of 1933, as amended.


 


Security:


 


The
term “Security” or “Securities” shall have the meaning stated in the recitals
and shall more particularly mean one or more of the Securities duly
authenticated by the Trustee and delivered pursuant to the provisions of this
Indenture.


 


Security Custodian:


 


The
term “Security Custodian” shall mean the custodian with respect to any Global
Security appointed by the Depositary, or any successor Person thereto, and
shall initially be the Paying Agent.


 


Securityholder; Holder of
Securities; Holder:


 


The
term “Securityholder” or “Holder of Securities” or “Holder,” shall mean the
Person in whose name Securities shall be registered in the Register kept for
that purpose hereunder.


 


Senior Indebtedness:


 


The
term “Senior Indebtedness” means the principal of (and premium, if any) and
unpaid interest on (x) Indebtedness of the Company, whether outstanding on
the date hereof or thereafter created, incurred, assumed or guaranteed, for
money borrowed other than (a) any Indebtedness of the Company which when
incurred, and without respect to any election under Section 1111(b) of
the Federal Bankruptcy Code, was without recourse to the Company, (b) any
Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness
to any employee of the Company, (d) any liability for taxes, (e) Trade
Payables and (f) any Indebtedness of the Company which is expressly
subordinate in right of payment to any other Indebtedness of the Company, and (y) renewals,
extensions, modifications and refundings of any such Indebtedness. For purposes
of the foregoing and the definition of “Senior Indebtedness,” the phrase
“subordinated in right of payment” means debt subordination only and not lien
subordination, and accordingly, (i) unsecured indebtedness shall not be
deemed to be subordinated in right of payment to secured indebtedness merely by
virtue of the fact that it is unsecured, and (ii) junior liens, second
liens and other contractual arrangements that provide for priorities among
Holders of the same or different issues of indebtedness with respect to any
collateral or the proceeds of collateral shall not constitute subordination in
right of payment. This definition may be modified or superseded by a
supplemental indenture.


 


7

















 


Special Record Date:


 


The
term “Special Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).


 


Stated Maturity:


 


The
term “Stated Maturity” when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
as the fixed date on which the principal (or any portion thereof) of or
premium, if any, on such Security or such installment of interest is due and
payable.


 


Subsidiary:


 


The
term “Subsidiary,” when used with respect to any Person, shall mean:


 


(a)           any corporation,
limited liability company, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency and after giving effect to any
voting agreement or stockholders’ agreement that effectively transfers voting
power) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and


 


(b)           any partnership (i) the
sole general partner or the managing general partner of which is such Person or
a Subsidiary of such Person or (ii) the only general partners of which are
that Person or one or more Subsidiaries of that Person (or any combination
thereof).


 


Successor Company:


 


The
term “Successor Company” shall have the meaning assigned to it in Section 3.06(i).


 


Trade Payables:


 


The
term “Trade Payables” means accounts payable or any other Indebtedness or
monetary obligations to trade creditors created or assumed by the Company or
any Subsidiary of the Company in the ordinary course of business (including
guarantees thereof or instruments evidencing such liabilities).


 


Trust Indenture Act; TIA:


 


The
term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939,
as amended.


 


Trustee:


 


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


 


U.S. Dollars:


 


The
term “U.S. Dollars” shall mean such currency of the United States as at the
time of payment shall be legal tender for the payment of public and private
debts.


 


U.S. Government Obligations:


 


The
term “U.S. Government Obligations” shall have the meaning assigned to it in Section 12.03.


 


8

















 


United States:


 


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


 


ARTICLE
II


 


FORMS
OF SECURITIES


 


Section 2.01           Terms of the Securities.


 


(a)        The Securities of each series shall
be substantially in the form set forth in a Company Order or in one or more
indentures supplemental hereto, and 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 or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which any series of the Securities may
be listed or of any automated quotation system on which any such series may be
quoted, or to conform to usage, all as determined by the officers executing
such Securities as conclusively evidenced by their execution of such
Securities.


 


(b)        The terms and provisions of the
Securities shall constitute, and are hereby expressly made, a part of this Indenture,
and, to the extent applicable, the Company, Parent and the Trustee, by their
execution and delivery of this Indenture expressly agree to such terms and
provisions and to be bound thereby.


 


Section 2.02           Form of Trustee’s Certificate of
Authentication.


 


(a)        Only such of the Securities as shall
bear thereon a certificate substantially in the form of the Trustee’s
certificate of authentication hereinafter recited, executed by the Trustee by
manual signature, shall be valid or become obligatory for any purpose or
entitle the Holder thereof to any right or benefit under this Indenture.


 


(b)        Each Security shall be dated the
date of its authentication, except that any Global Security shall be dated as
of the date specified as contemplated in Section 3.01.


 


(c)        The form of the Trustee’s
certificate of authentication to be borne by the Securities 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.


 


	
  Date
  of authentication:  ________________

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


Section 2.03           Form of Trustee’s Certificate of
Authentication by an Authenticating Agent. If at any time there shall be an
Authenticating Agent appointed with respect to any series of Securities, then
the Trustee’s Certificate of Authentication by such Authenticating Agent to be
borne by Securities of each such series shall be substantially as follows:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


This
is one of the Securities issued referred to in the within-mentioned Indenture.


 


9

















 


	
  Date
  of authentication:  ________________

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  [NAME
  OF AUTHENTICATING AGENT]

  
	
   

  	
   

  	
  As
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


ARTICLE
III


 


THE
DEBT SECURITIES


 


Section 3.01           Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series. There shall be set forth in a Company Order or in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series:


 


(a)        the title of the Securities of the
series (which shall distinguish the Securities of such series from the
Securities of all other series, except to the extent that additional Securities
of an existing series are being issued);


 


(b)        any limit upon the aggregate
principal amount of the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon transfer of, or in exchange for, or in lieu of, other Securities
of such series pursuant to Section 3.04, 3.06, 3.07, 4.06, or 14.05);


 


(c)        the dates on which or periods during
which the Securities of the series may be issued, and the dates on, or the
range of dates within, which the principal of and premium, if any, on the
Securities of such series are or may be payable or the method by which such
date or dates shall be determined or extended;


 


(d)        the rate or rates at which the
Securities of the series shall bear interest and Default Interest, if any, or
the method by which such rate or rates shall be determined, the date or dates
from which such interest shall accrue, or the method by which such date or
dates shall be determined, the Interest Payment Dates on which any such
interest shall be payable, and the Record Dates for the determination of
Holders to whom interest is payable on such Interest Payment Dates or the
method by which such date or dates shall be determined, the right, if any, to
extend or defer interest payments and the duration of such extension or
deferral;


 


(e)        if other than U.S. Dollars, the
Currency in which Securities of the series shall be denominated or in which
payment of the principal of, premium, if any, or interest on the Securities of
the series shall be payable and any other terms concerning such payment;


 


(f)         if the amount of payment of
principal of, premium, if any, or interest on the Securities of the series may
be determined with reference to an index, formula or other method including,
but not limited to, an index based on a Currency or Currencies other than that
in which the Securities are stated to be payable, the manner in which such
amounts shall be determined;


 


(g)        if the principal of, premium, if
any, or interest on Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a Currency other than that in which the
Securities are denominated or stated to be payable without such election, the
period or periods within which, and the terms and conditions upon which, such
election may be made and the time and the manner of determining the exchange
rate between the Currency in which the Securities are denominated or payable
without such election and the Currency in which the Securities are to be paid
if such election is made;


 


(h)        the place or places, if any, in addition
to or instead of the Corporate Trust Office of the Trustee where the principal
of, premium, if any, and interest on Securities of the series shall be payable,
and


 


10

















 


where
Securities of any series may be presented for registration of transfer,
exchange or conversion, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;


 


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


 


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


 


(k)        if other than denominations of
$2,000 or any integral multiple of $1,000 in excess thereof, the denominations
in which Securities of the series shall be issuable;


 


(l)         if other than the principal amount
thereof, the portion of the principal amount of the Securities of the series
which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.02;


 


(m)       whether the Securities of the series
are to be issued as Original Issue Discount Securities and the amount of
discount with which such Securities may be issued;


 


(n)        provisions, if any, for the
defeasance of Securities of the series in whole or in part and any addition or
change in the provisions related to satisfaction and discharge;


 


(o)        whether the Securities of the series
are to be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global Security or
Securities and the terms and conditions, if any, upon which interests in such
Global Security or Securities may be exchanged in whole or in part for the individual
Securities represented thereby;


 


(p)        the date as of which any Global
Security of the series shall be dated if other than the original issuance of
the first Security of the series to be issued;


 


(q)        the form of the Securities of the
series;


 


(r)         if the Securities of the series are
to be convertible into or exchangeable for any securities or property of any
Person (including the Company), the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any additions or changes,
if any, to permit or facilitate such conversion or exchange;


 


(s)        whether the Securities of such
series are subject to subordination and the terms of such subordination;


 


(t)         any restriction or condition on the
transferability of the Securities of such series;


 


(u)        any addition or change in the
provisions related to compensation and reimbursement of the Trustee which
applies to Securities of such series;


 


(v)        any addition or change in the
provisions related to supplemental indentures set forth in Sections 14.04
and 14.02 which applies to Securities of such series;


 


(w)       provisions, if any, granting special
rights to Holders upon the occurrence of specified events;


 


(x)        any addition to or change in the
Events of Default which applies to any Securities of the series and any change
in the right of the Trustee or the requisite Holders of such Securities to
declare the


 


11

















 


principal
amount thereof due and payable pursuant to Section 7.02 and any addition
or change in the provisions set forth in Article VII which applies to
Securities of the series;


 


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


 


(z)        the provisions, if any, relating to
any security provided for the Securities of the series and/or guarantees of
such Securities;


 


(aa)      the terms of the Parent’s guarantee
of the Securities of the series (including provisions relating to seniority,
subordination, security and the release of such guarantee), the guarantors
other than the Parent, if any, of the Securities of the series, the terms of
such other guarantors’ guarantees (including provisions relating to seniority,
subordination, security and the release of the guarantees), if any, and any additions
or changes to permit or facilitate guarantees by the Parent or such other
guarantors’ of such Securities; and


 


(bb)     any other terms of the Securities of
such series and guarantees thereof (which terms shall not be inconsistent with
the provisions of the TIA, but may modify, amend, supplement or delete any of
the terms of this Indenture with respect to the Securities of such series and
guarantees thereof).


 


All Securities of any one series shall be
substantially identical, except as to denomination and except as may otherwise
be provided herein or set forth in a Company Order or in one or more indentures
supplemental hereto.


 


Section 3.02           Denominations. In the absence of any
specification pursuant to Section 3.01 with respect to Securities of any
series, the Securities of such series shall be issuable only as Securities in
denominations of $2,000 and any integral multiple of $1,000 in excess thereof,
and shall be payable only in U.S. Dollars.


 


Section 3.03           Execution, Authentication, Delivery and
Dating.


 


(a)        The Securities shall be executed in
the name and on behalf of the Company by the manual or facsimile signature of
its Chief Executive Officer, its President, one of its Executive Vice
Presidents, Senior Vice Presidents or Vice Presidents, its Chief Financial
Officer, its Treasurer or one of its Assistant Treasurers, its Controller or
Corporate Controller or one of its Assistant Controllers or Assistant Corporate
Controllers, its General Counsel, its Secretary or one of its Assistant
Secretaries. If the Person whose signature is on a Security no longer holds
that office at the time the Security is authenticated and delivered, the
Security shall nevertheless be valid.


 


(b)        At any time and from time to time
after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities and, if required pursuant to Section 3.01, a
supplemental indenture or Company Order setting forth the terms of the
Securities of a series. The Trustee shall thereupon authenticate and deliver
such Securities without any further action by the Company. The Company Order
shall specify the amount of Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated.


 


(c)        In authenticating the first
Securities of any series and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall receive, and
(subject to Section 11.02) shall be fully protected in relying upon, an
Officer’s Certificate and an Opinion of Counsel, each prepared in accordance
with Section 16.01 stating that the conditions precedent, if any, provided
for in the Indenture have been complied with, and an Opinion of Counsel
substantially to the effect that the form or forms and terms of the Securities
of such series have been established in compliance with this Indenture, that
the Securities have been duly authorized and, if executed and authenticated in
accordance with the provisions of the Indenture and delivered to and duly paid
for by the purchasers thereof on the date of such opinion, would be entitled to
the benefits of the Indenture and that this Indenture and such Securities would
be valid and binding obligations of the Company and any other obligors,
enforceable against the Company and such obligors in accordance with their
respective terms, subject to customary exceptions, and covering such other matters
as shall be specified therein and as shall be reasonably requested by the
Trustee.


 


12

















 


(d)        The Trustee shall have the right to
decline to authenticate and deliver the Securities under this Section 3.03
if the issue of the Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.


 


(e)        Each Security shall be dated the
date of its authentication, except as otherwise provided pursuant to Section 3.01
with respect to the Securities of such series.


 


(f)         Notwithstanding the provisions of Section 3.01
and of this Section 3.03, if all of the Securities of any series are not
to be originally issued at the same time, then the documents required to be
delivered pursuant to this Section 3.03 must be delivered only once prior
to the authentication and delivery of the first Security of such series;


 


(g)        If the Company shall establish
pursuant to Section 3.01 that the Securities of a 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 shall authenticate and deliver one or
more Global Securities that (i) shall represent an aggregate amount equal
to the aggregate principal amount of the Outstanding Securities of such series
to be represented by such Global Securities, (ii) shall be registered, if
in registered form, in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to the Security Custodian or such Depositary or pursuant to such
Depositary’s instruction and (iv) shall bear a legend substantially to the
following effect (or to such other effect as is required by such Depositary):


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.


 


The
aggregate principal amount of each Global Security may from time to time be
increased or decreased by adjustments made on the records of the Security
Custodian, as provided in this Indenture.


 


(h)        Each Depositary designated pursuant
to Section 3.01 for a Global Security in registered form must, at the time
of its designation and at all times while it serves as such Depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.


 


(i)         Members of, or participants in, the Depositary
(“Members”) shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary or by the Security
Custodian under such Global Security, and the Depositary may be treated by the
Company, the Trustee, the Paying Agent and the Registrar and any of their
agents as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee, the Paying Agent or the Registrar or any of their agents
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its
Members, the operation of customary practices of the Depositary governing the exercise
of the rights of an owner of a beneficial interest in any Global Security. The
Holder of a Global Security may grant proxies and otherwise authorize any
Person, including Members and Persons that may hold interests through Members,
to take any action that a Holder is entitled to take under this Indenture or
the Securities.


 


(j)         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
one of the forms provided for herein duly executed by the Trustee or by an
Authenticating Agent by manual or facsimile signature of an authorized
signatory of the Trustee, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.


 


13

















 


Section 3.04           Temporary Securities.


 


(a)        Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities that are
printed, lithographed, typewritten, mimeographed or otherwise reproduced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. Any such temporary Security may be in
global form, representing all or a portion of the Outstanding Securities of
such series. Every such temporary Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as the
definitive Security or Securities in lieu of which it is issued.


 


(b)        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 of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of such
temporary Securities at the office or agency of the Company in a Place of
Payment for such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations and of like tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.


 


(c)        Upon any exchange of a portion of a
temporary Global Security for a definitive Global Security or for the
individual Securities represented thereby pursuant to this Section 3.04 or
Section 3.06, the temporary Global Security shall be endorsed by the
Trustee to reflect the reduction of the principal amount evidenced thereby,
whereupon the principal amount of such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed.


 


Section 3.05           Registrar.


 


(a)        The Company will keep, at an office
or agency to be maintained by it in a Place of Payment where Securities may be
presented for registration or presented and surrendered for registration of
transfer or of exchange, and where Securities of any series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable (the “Registrar”), a security register for the registration and the
registration of transfer or of exchange of the Securities (the registers
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the
“Register”), as in this Indenture provided, which Register shall at all
reasonable times be open for inspection by the Trustee. Such Register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time. The Company may have one or more co-Registrars;
the term “Registrar” includes any co-registrar.


 


(b)        The Company shall enter into an
appropriate agency agreement with any Registrar or co-Registrar not a party to
this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such agent. The Company shall notify the Trustee of the name and
address of each such agent. If the Company fails to maintain a Registrar for
any series, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 11.01. The Company or any
Affiliate thereof may act as Registrar, co-Registrar or transfer agent.


 


(c)        The Company hereby appoints the
Trustee at its Corporate Trust Office as Registrar in connection with the
Securities and this Indenture, until such time as another Person is appointed
as such.


 


Section 3.06           Transfer and Exchange.


 


(a)        Transfer.


 


(i)            Upon surrender for registration of transfer of any
Security of any series at the Registrar the Company shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver, in the name
of the designated transferee, one or more new Securities of the same series for
like aggregate principal amount of any authorized denomination or
denominations. The transfer of any Security shall not be valid as against


 


14
















 


the Company or the Trustee unless registered
at the Registrar at the request of the Holder, or at the request of his, her or
its attorney duly authorized in writing.


 


(ii)       Notwithstanding any other
provision of this Section, unless and until it is exchanged in whole or in part
for the individual Securities represented thereby, a Global Security
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.


 


(b)        Exchange.


 


(i)        At the option of the Holder, Securities of any series
(other than a Global Security, except as set forth below) may be exchanged for
other Securities of the same series for like aggregate principal amount of any
authorized denomination or denominations, upon surrender of the
Securities to be exchanged at the Registrar.


 


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


 


(c)        Exchange of Global Securities for
individual Securities. Except as provided below, owners of beneficial interests
in Global Securities will not be entitled to receive individual Securities.


 


(i)        Individual Securities shall be issued to all owners of
beneficial interests in a Global Security in exchange for such interests if: (A) at
any time the Depositary for the Securities of a series notifies the Company
that it is unwilling or unable to continue as Depositary for the Securities of
such series or if at any time the Depositary for the Securities of such series
shall no longer be eligible under Section 3.03(h) and, in each case,
a successor Depositary is not appointed by the Company within 90 days of
such notice, or (B) the Company executes and delivers to the Trustee and
the Registrar an Officer’s Certificate stating that such Global Security shall
be so exchangeable.


 


In
connection with the exchange of an entire Global Security for individual
Securities pursuant to this subsection (c), such Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series, will
authenticate and deliver to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of individual Securities of authorized
denominations.


 


(ii)       The owner of a beneficial interest in a Global
Security will be entitled to receive an individual Security in exchange for
such interest if an Event of Default has occurred and is continuing. Upon
receipt by the Security Custodian and Registrar of instructions from the Holder
of a Global Security directing the Security Custodian and Registrar to (x) issue
one or more individual Securities in the amounts specified to the owner of a
beneficial interest in such Global Security and (y) debit or cause to be
debited an equivalent amount of beneficial interest in such Global Security,
subject to the rules and regulations of the Depositary:


 


(A)      the Security Custodian and Registrar shall notify the
Company and the Trustee of such instructions, identifying the owner and amount
of such beneficial interest in such Global Security;


 


(B)       the Company shall promptly execute and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
individual Securities of such series, shall authenticate and deliver to such
beneficial owner individual Securities in an equivalent amount to such
beneficial interest in such Global Security; and


 


(C)       the Security Custodian and
Registrar shall decrease such Global Security by such amount in accordance with
the foregoing. In the event that the individual Securities are not issued 


 


15

















 


to each such beneficial owner promptly after the Registrar
has received a request from the Holder of a Global Security to issue such
individual Securities, the Company expressly acknowledges, with respect to the
right of any Holder to pursue a remedy pursuant to Section 7.07 hereof,
the right of any beneficial Holder of Securities to pursue such remedy with
respect to the portion of the Global Security that represents such beneficial
Holder’s Securities as if such individual Securities had been issued.


 


(iii)      If specified by the Company pursuant to Section 3.01
with respect to a series of Securities, the Depositary for such series of
Securities may surrender a Global Security for such series of Securities in
exchange in whole or in part for individual Securities of such series on such
terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,


 


(A)      to each Person specified by such Depositary a new
individual Security or Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal amount equal to
and in exchange for such Person’s beneficial interest in the Global Security;
and


 


(B)       to such Depositary a new
Global Security in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of individual Securities delivered to Holders thereof.


 


(iv)      In any exchange provided for in clauses (i) through
(iii), the Company will execute and the Trustee will authenticate and deliver
individual Securities in registered form in authorized denominations.


 


(v)       Upon the exchange in full of a Global Security for
individual Securities, such Global Security shall be canceled by the Trustee.
Individual 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 Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.


 


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


 


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


 


(f)         No service charge will be made for
any registration of transfer or exchange of Securities. The Company may require
payment of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than those expressly provided in this Indenture
to be made at the Company’s own expense or without expense or charge to the
Holders.


 


(g)        The Company shall not be required to
(i) register, transfer or exchange Securities of any series during a
period beginning at the opening of business 15 days before the day of the
transmission of a notice of redemption of Securities of such series selected
for redemption under Section 4.03 and ending at the close of business on
the day of such transmission, or (ii) register, transfer or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.


 


(h)        Prior to the due presentation for
registration of transfer or exchange of any Security, the Company, the Trustee,
the Paying Agent, the Registrar, any co-Registrar or any of their agents may
deem and treat the Person in whose name a Security is registered as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for all



 


16

















 


purposes
whatsoever, and none of the Company, the Trustee, the Paying Agent, the
Registrar, any co-Registrar or any of their agents shall be affected by any
notice to the contrary.


 


(i)         In case a successor Company
(“Successor Company”) has executed an indenture supplemental hereto with the
Trustee pursuant to Article XIV, any of the Securities authenticated or
delivered pursuant to such transaction may, from time to time, at the request
of the Successor Company, be exchanged for other Securities executed in the
name of the Successor Company with such changes in phraseology and form as may
be appropriate, but otherwise identical to the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the Successor Company, shall authenticate and deliver Securities as specified
in such order for the purpose of such exchange. If Securities shall at any time
be authenticated and delivered in any new name of a Successor Company pursuant
to this Section 3.06 in exchange or substitution for or upon registration
of transfer of any Securities, such Successor Company, at the option of the
Holders but without expense to them, shall provide for the exchange of all
Securities at the time Outstanding for Securities authenticated and delivered
in such new name.


 


(j)         Each Holder of a Security agrees to
indemnify the Company and the Trustee against any liability that may result
from the transfer, exchange or assignment of such Holder’s Security in
violation of any provision of this Indenture and/or applicable United States
federal or state securities laws.


 


(k)        The Trustee shall have no obligation
or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security other than to require delivery
of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.


 


(l)         Neither the Trustee nor any Agent
shall have any responsibility for any actions taken or not taken by the
Depositary.


 


Section 3.07           Mutilated, Destroyed, Lost and Stolen
Securities.


 


(a)        If (i) any mutilated Security
is surrendered to the Trustee at its Corporate Trust Office or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee security or indemnity satisfactory to them to save each
of them and any Paying Agent harmless, and neither the Company nor the Trustee
receives notice that such Security has been acquired by a protected purchaser,
then the Company shall execute and upon Company Order 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 the same series and of
like tenor, form, terms and principal amount, bearing a number not
contemporaneously outstanding, that neither gain nor loss in interest shall
result from such exchange or substitution.


 


(b)        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 the amount due on such Security in accordance with its terms.


 


(c)        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
respect thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.


 


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


 


(e)        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.


 


17

















 


Section 3.08           Payment of Interest; Interest Rights
Preserved.


 


(a)        Interest on any Security that is
payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Record
Date for such interest notwithstanding the cancellation of such Security upon
any transfer or exchange subsequent to the Record Date. Payment of interest on
Securities shall be made at the Corporate Trust Office (except as otherwise
specified pursuant to Section 3.01) or, at the option of the Company, by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Register or, in accordance with arrangements satisfactory
to the Trustee, by wire transfer to an account designated by the Holder.


 


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


 


(i)        The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names 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 (a “Special Record Date”),
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such 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 satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 calendar
days and not less than 10 calendar days prior to the date of the proposed
payment and not less than 10 calendar 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 Holders of such Securities at their addresses as they appear in the
Register, not less than 10 calendar 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 at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (ii).


 


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


 


(c)        Subject to the provisions set forth
herein relating to Record Dates, each Security delivered pursuant to any
provision of this Indenture in exchange or substitution for, or upon
registration of transfer of, any other Security shall carry all the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


Section 3.09           Cancellation. Unless otherwise
specified pursuant to Section 3.01 for Securities of any series, all
Securities surrendered for payment, redemption, registration of transfer or
exchange or credit against any sinking fund or otherwise shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee for
cancellation and shall be promptly canceled by it and, if surrendered to the
Trustee, 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 that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities 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 held by
it in accordance with its then customary procedures and 


 


18

















 


deliver a
certificate of such disposal to the Company upon its request therefor. The
acquisition of any Securities by the Company shall not operate as a redemption
or satisfaction of the Indebtedness represented thereby unless and until such
Securities are surrendered to the Trustee for cancellation.


 


Section 3.10           Computation of Interest. Except as
otherwise specified pursuant to Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.


 


Section 3.11           Currency of Payments in Respect of
Securities.


 


(a)        Except as otherwise specified
pursuant to Section 3.01 for Securities of any series, payment of the
principal of and premium, if any, and interest on Securities of such series
will be made in U.S. Dollars.


 


(b)        For purposes of any provision of the
Indenture where the Holders of Outstanding Securities may perform an action
that requires that a specified percentage of the Outstanding Securities of all
series perform such action and for purposes of any decision or determination by
the Trustee of amounts due and unpaid for the principal of and premium, if any,
and interest on the Securities of all series in respect of which moneys are to
be disbursed ratably, the principal of and premium, if any, and interest on the
Outstanding Securities denominated in a Foreign Currency will be the amount in
U.S. Dollars based upon exchange rates, determined as specified pursuant to Section 3.01
for Securities of such series, as of the date for determining whether the
Holders entitled to perform such action have performed it or as of the date of
such decision or determination by the Trustee, as the case may be.


 


(c)        Any decision or determination to be
made regarding exchange rates shall be made by an agent appointed by the
Company; provided, that such agent shall accept such appointment in writing and
the terms of such appointment shall, in the opinion of the Company at the time
of such appointment, require such agent to make such determination by a method
consistent with the method provided pursuant to Section 3.01 for the
making of such decision or determination. All decisions and determinations of
such agent regarding exchange rates shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company, the
Trustee and all Holders of the Securities.


 


Section 3.12           Judgments. The Company may provide
pursuant to Section 3.01 for Securities of any series that (a) the
obligation, if any, of the Company to pay the principal of, premium, if any,
and interest on the Securities of any series in a Foreign Currency or U.S. Dollars
(the “Designated Currency”) as may be specified pursuant to Section 3.01
is of the essence and agrees that, to the fullest extent possible under
applicable law, judgments in respect of such Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in
the Designated Currency of the principal of and premium, if any, and interest
on such Securities shall, notwithstanding any payment in any other Currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the Designated Currency that the Holder receiving such payment
may, in accordance with normal banking procedures, purchase with the sum paid
in such other Currency (after any premium and cost of exchange) on the business
day in the country of issue of the Designated Currency or in the international
banking community (in the case of a composite currency) immediately following
the day on which such Holder receives such payment; (c) if the amount in
the Designated Currency that may be so purchased for any reason falls short of
the amount originally due, the Company shall pay such additional amounts as may
be necessary to compensate for such shortfall; and (d) any obligation of
the Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.


 


Section 3.13           CUSIP Numbers. The Company in issuing
any Securities may use CUSIP, ISIN or other similar numbers, if then generally
in use, and thereafter with respect to such series, the Trustee may use such
numbers in any notice (including any notice of redemption or exchange) with
respect to such series provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice (including any notice of
redemption or exchange) and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such notice or notice
of redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee in writing of any change
in the CUSIP, ISIN or other similar numbers.


 


19

















 


ARTICLE IV


 


REDEMPTION OF SECURITIES


 


Section 4.01           Applicability of Right of Redemption.
Redemption of Securities (other than pursuant to a sinking fund, amortization
or analogous provision) permitted by the terms of any series of Securities
shall be made (except as otherwise specified pursuant to Section 3.01 for
Securities of any series) in accordance with this Article; provided, however,
that if any such terms of a series of Securities shall conflict with any
provision of this Article, the terms of such series shall govern.


 


Section 4.02           Selection of Securities to be Redeemed.


 


(a)        If the Company shall at any time
elect to redeem all or any portion of the Securities of a series then
Outstanding, it shall, at least 30 days prior to the Redemption Date fixed
by the Company (or, if the Company is requesting that the Trustee give the
notice of redemption, at least 45 days prior to the Redemption Date fixed by
the Company, unless a shorter period shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, the Redemption Price, and of the principal
amount of Securities to be redeemed, and thereupon (subject to Applicable
Procedures) the Trustee shall select, by lot or in such other manner as the
Trustee shall deem appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series;
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the
minimum authorized denomination) for such Security. In any case where more than
one Security of such series is registered in the same name, the Trustee may
treat the aggregate principal amount so registered as if it were represented by
one Security of such series. The Trustee shall, as soon as practicable, notify
the Company in writing of the Securities and portions of Securities so
selected.  The Company shall deliver to
the Trustee an Officer’s Certificate stating that such redemption will comply
with any applicable covenants or conditions to such redemption.  Notice given to the Trustee pursuant to this Section 4.02
may not be revoked after the time that notice is given to Holders. If the
Redemption Price is not known at the time such notice is to be given, the
actual Redemption Price, calculated as described in the terms of the
Securities, will be set forth in an Officer’s Certificate of the Company
delivered to the Trustee no later than two Business Days prior to the Redemption
Date.


 


(b)        For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal amount of such
Security that has been or is to be redeemed. If the Company shall so direct,
Securities registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for
redemption.


 


Section 4.03           Notice of Redemption.


 


(a)        Notice of redemption 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, not less than 30 nor more than 60 days prior
to the Redemption Date, to the Holders of Securities of any series to be
redeemed in whole or in part pursuant to this Article, in the manner provided
in Section 16.04. Any notice so given shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice. Failure
to give such notice, or any defect in such notice to the Holder of any Security
of a series designated for redemption, in whole or in part, shall not affect
the sufficiency of any notice of redemption with respect to the Holder of any
other Security of such series.


 


(b)        All notices of redemption shall
identify the Securities to be redeemed (including CUSIP, ISIN or other similar
numbers, if available) and shall state:


 


(i)        such election by the Company to redeem Securities of
such series pursuant to provisions contained in this Indenture or the terms of
the Securities of such series or a supplemental indenture establishing such
series, if such be the case;


 


(ii)       the Redemption Date;


 


(iii)      the Redemption Price, or manner of calculation if not
then known;


 


20

















 


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


 


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


 


(vi)      the Place or Places of Payment where such Securities
are to be surrendered for payment of the Redemption Price; and


 


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


 


Section 4.04           Deposit of Redemption Price. On or
prior to 11:00 a.m., New York City time, on the Redemption Date for any
Securities, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 6.03) an amount of money in the Currency in
which such Securities are denominated (except as provided pursuant to Section 3.01)
sufficient to pay the Redemption Price of such Securities or any portions
thereof that are to be redeemed on that date.


 


Section 4.05           Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, any Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price 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. Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption
Price; provided, however, that (unless otherwise provided pursuant to Section 3.01)
installments of interest that have a Stated Maturity on or prior to the
Redemption Date for such Securities shall be payable according to the terms of
such Securities and the provisions of Section 3.08.


 


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


 


Section 4.06           Securities Redeemed
in Part. Any Security that is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.01
with, if the Company, the Registrar or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company,
the Registrar and the Trustee duly executed by the Holder thereof or his, her
or its 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, of
like tenor and form, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.  Notation on a Global Security of the payment
of the redeemed portion thereof shall be made in accordance with Applicable
Procedures.


 


ARTICLE V


 


SINKING FUNDS


 


Section 5.01           Applicability of Sinking Fund.


 


(a)        Redemption of Securities permitted
or required pursuant to a sinking fund for the retirement of Securities of a
series by the terms of such series of Securities shall be made in accordance
with such terms of such series of Securities and this Article, except as
otherwise specified pursuant to Section 3.01 for Securities of such
series, provided, however, that if any such terms of a series of Securities
shall conflict with any provision of this Article, the terms of such series
shall govern.


 


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(b)        The minimum amount of any sinking
fund payment provided for by the terms of Securities of any series is herein
referred to as a “Mandatory Sinking Fund Payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “Optional Sinking Fund Payment.” If provided for by
the terms of Securities of any series, the cash amount of any Mandatory Sinking
Fund Payment may be subject to reduction as provided in Section 5.02.


 


Section 5.02           Mandatory Sinking
Fund Obligation. The Company may, at its option, satisfy any Mandatory
Sinking Fund Payment obligation, in whole or in part, with respect to a
particular series of Securities by (a) delivering to the Trustee
Securities of such series in transferable form theretofore purchased or
otherwise acquired by the Company or redeemed at the election of the Company
pursuant to Section 4.03 or (b) receiving credit for Securities of
such series (not previously so credited) acquired by the Company and
theretofore delivered to the Trustee. The Trustee shall credit such Mandatory
Sinking Fund Payment obligation with an amount equal to the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such Mandatory Sinking Fund Payment shall be reduced
accordingly. If the Company shall elect to so satisfy any Mandatory Sinking
Fund Payment obligation, it shall deliver to the Trustee not less than
45 days (or such shorter period as shall be satisfactory to the Trustee)
prior to the relevant sinking fund
payment date an Officer’s Certificate which shall designate the Securities (and
portions thereof, if any) so delivered or credited and which shall be
accompanied by or delivered contemporaneously with delivery of such Securities
(to the extent not theretofore delivered) in transferable form. In case of the
failure of the Company, at or before the time so required, to give such notice
and deliver such Securities the Mandatory Sinking Fund Payment obligation shall
be paid entirely in moneys.


 


Section 5.03           Optional Redemption at Sinking Fund
Redemption Price. In addition to the sinking fund requirements of Section 5.02,
to the extent, if any, provided for by the terms of a particular series of
Securities, the Company may, at its option, make an Optional Sinking Fund
Payment with respect to such Securities. Unless otherwise provided by such
terms, (a) to the extent that the right of the Company to make such
Optional Sinking Fund Payment shall not be exercised in any year, it shall not
be cumulative or carried forward to any subsequent year, and (b) such
optional payment shall operate to reduce the amount of any Mandatory Sinking
Fund Payment obligation as to Securities of the same series. If the Company
intends to exercise its right to make such optional payment in any year it
shall deliver to the Trustee not less than 45 days (or such shorter period
as shall be satisfactory to the Trustee) prior to the relevant sinking fund
payment date an Officer’s Certificate stating that the Company will exercise
such optional right, and specifying the amount which the Company will pay on or
before the next succeeding sinking fund payment date. Such certificate shall
also state that no Event of Default has occurred and is continuing.


 


Section 5.04           Application of Sinking Fund Payment.


 


(a)        If the sinking fund payment or
payments made in funds pursuant to either Section 5.02 or 5.03 with
respect to a particular series of Securities shall exceed $50,000 (or a lesser
sum if the Company shall so request, or such equivalent sum for Securities
denominated other than in U.S. Dollars), it shall be applied by the Trustee on
the sinking fund payment date next following the date of such payment, unless
the date of such payment shall be a sinking fund payment date, in which case
such payment shall be applied on such sinking fund payment date, to the
redemption of Securities of such series at the redemption price specified
pursuant to Section 4.03(b). Subject to Applicable Procedures, the Trustee
shall select, in the manner provided in Section 4.02, for redemption on
such sinking fund payment date, a sufficient principal amount of Securities of
such series to absorb said funds, as nearly as may be, and shall, at the
expense and in the name of the Company, thereupon cause notice of redemption of
the Securities to be given in substantially the manner provided in Section 4.03(a) for
the redemption of Securities in part at the option of the Company, except that
the notice of redemption shall also state that the Securities are being
redeemed for the sinking fund. Any sinking fund moneys not so applied by the
Trustee to the redemption of Securities of such series shall be added to the
next sinking fund payment received in funds by the Trustee and, together with
such payment, shall be applied in accordance with the provisions of this Section 5.04.
Any and all sinking fund moneys held by the Trustee on the last sinking fund
payment date with respect to Securities of such series, and not held for the
payment or redemption of particular Securities of such series, shall be applied
by the Trustee to the payment of the principal of the Securities of such series
at Maturity.


 


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(b)        On or prior to each sinking fund
payment date, the Company shall pay to the Trustee a sum equal to all interest
accrued to but not including the date fixed for redemption on Securities to be
redeemed on such sinking fund payment date pursuant to this Section 5.04.


 


(c)        The Trustee shall not redeem any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund during
the continuance of a Default in payment of interest on any Securities of such
series or of any Event of Default (other than an Event of Default occurring as
a consequence of this paragraph) of which the Trustee has actual knowledge,
except that if the notice of redemption of any Securities of such series shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee shall redeem such Securities if funds sufficient for that purpose shall
be deposited with the Trustee in accordance with the terms of this Article.
Except as aforesaid, any moneys in the sinking fund at the time any such
Default or Event of Default shall occur and any moneys thereafter paid into the
sinking fund shall, during the continuance of such Default or Event of Default,
be held as security for the payment of all the Securities of such series;
provided, however, that in case such Default or Event of Default shall have
been cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date on which such moneys are required
to be applied pursuant to the provisions of this Section 5.04.


 


ARTICLE VI


 


PARTICULAR COVENANTS OF THE
COMPANY


 


The
Company hereby covenants and agrees as follows:


 


Section 6.01           Payments of Securities. The Company
will duly and punctually pay the principal of and premium, if any, on each
series of Securities, and the interest which shall have accrued thereon, at the
dates and place and in the manner provided in the Securities and in this
Indenture.  The Company will be
responsible for making calculations called for under the Securities, including
but not limited to determination of redemption price, premium, if any, and any
additional amounts or other amounts payable on the Securities.  The Company will make the calculations in
good faith and, absent manifest error, its calculations will be final and
binding on the Holders.  The Company will
provide a schedule of its calculations to the Trustee when requested by the
Trustee, and the Trustee is entitled to rely conclusively on the accuracy of
the Company’s calculations without independent verification. The Company shall
promptly calculate after each calendar year end to determine whether there is a
reportable original issue discount amount on any outstanding Original Issue
Discount Securities.  If so, then the
Company shall file with the Trustee not later than January 15 following
the end of such calendar year (i) a written notice specifying the amount
of original issue discount (including daily rates and accrual periods) accrued
on outstanding Original Issue Discount Securities as of the end of such year
and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Code in order to enable the Trustee
to prepare any required reports with respect to such original issue discount,
including but not limited to Form 1099-OID.


 


Section 6.02           Paying Agent.


 


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


 


(b)        The Company may also from time to
time designate different or additional offices or agencies where the Securities
of any series may be presented or surrendered for any or all such purposes (in
or outside of such Place of Payment), and may from time to time rescind any
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligations described in the 


 


23

















 


preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and of any change in
the location of any such different or additional office or agency. The Company
shall enter into an appropriate agency agreement with any Paying Agent not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of each such agent. The Company or any Affiliate thereof
may act as Paying Agent.


 


Section 6.03           To Hold Payment in Trust.


 


(a)        If the Company or an Affiliate
thereof shall at any time act as Paying Agent with respect to any series of
Securities, then, on or before the date on which the principal of and premium,
if any, or interest on any of the Securities of that series by their terms or
as a result of the calling thereof for redemption shall become payable, the
Company or such Affiliate will segregate and hold in trust for the benefit of
the Holders of such Securities or the Trustee a sum sufficient to pay such
principal and premium, if any, or interest which shall have so become payable
until such sums shall be paid to such Holders or otherwise disposed of as
herein provided, and will notify the Trustee of its action or failure to act in
that regard. Upon any proceeding under any federal bankruptcy laws with respect
to the Company or any Affiliate thereof, if the Company or such Affiliate is
then acting as Paying Agent, the Trustee shall replace the Company or such
Affiliate as Paying Agent.


 


(b)        If the Company shall appoint, and at
the time have, a Paying Agent for the payment of the principal of and premium,
if any, or interest on any series of Securities, then prior to 11:00 a.m.,
New York City time, on the date on which the principal of and premium, if any,
or interest on any of the Securities of that series shall become payable as
aforesaid, whether by their terms or as a result of the calling thereof for
redemption, the Company will deposit with such Paying Agent a sum sufficient to
pay such principal and premium, if any, or interest, such sum to be held in
trust for the benefit of the Holders of such Securities or the Trustee, and
(unless such Paying Agent is the Trustee), the Company or any other obligor of
such Securities will promptly notify the Trustee of its payment or failure to
make such payment.


 


(c)        If the Paying Agent shall be other
than the Trustee, the Company will cause such Paying Agent 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 6.03, that
such Paying Agent shall:


 


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


 


(ii)       give to the Trustee notice of any Default by the
Company or any other obligor upon the Securities of that series in the making
of any payment of the principal of and premium, if any, or interest on the
Securities of that series; and


 


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


 


(d)        Anything in this Section 6.03
to the contrary notwithstanding, the Company may at any time, for the purpose
of obtaining a release, satisfaction or discharge of this Indenture or for any
other reason, pay or cause to be paid to the Trustee all sums held in trust by
the Company or by any Paying Agent other than the Trustee as required by this Section 6.03,
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.


 


(e)        Subject to any applicable abandoned
property law, 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 upon Company Order along with any
interest that has accumulated thereon as a result of such money being invested
at the direction of the Company, 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 of such
amounts without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all


 


24
















 


liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company.


 


Section 6.04                                Merger,
Consolidation and Sale of Assets. Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities:


 


(a)                                  The Company will not consolidate
with any other entity or accept a merger of any other entity into the Company
or permit the Company to be merged into any other entity, or sell other than
for cash or lease all or substantially all its assets to another entity unless (i) either
the Company shall be the continuing entity, or the successor, transferee or
lessee entity (if other than the Company) shall expressly assume, by indenture
supplemental hereto, executed and delivered by such entity prior to or
simultaneously with such consolidation, merger, sale or lease, the due and
punctual payment of the principal of and interest and premium, if any, on all
the Securities, according to their tenor, and the due and punctual performance
and observance of all other obligations to the Holders and the Trustee under
this Indenture or under the Securities to be performed or observed by the
Company; and (ii) immediately after such consolidation, merger, sale,
lease or purchase the Company or the successor, transferee or lessee entity (if
other than the Company) would not be in Default in the performance of any
covenant or condition of this Indenture.


 


(b)                                 Upon any consolidation with or
merger into any other entity, or any sale other than for cash, or any conveyance
or lease of all or substantially all of the assets of the Company in accordance
with this Section 6.04, the successor entity formed by such consolidation
or into or with which the Company is merged or to which the Company is sold or
to which such conveyance, transfer or lease 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 entity had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Company shall be relieved of all obligations and covenants under
this Indenture and the Securities, and from time to time such entity may
exercise each and every right and power of the Company under this Indenture, in
the name of the Company, or in its own name; and any act or proceeding by any
provision of this Indenture required or permitted to be done by the Board of
Directors or any officer of the Company may be done with like force and effect
by the like board or officer of any entity that shall at the time be the
successor of the Company hereunder. In the event of any such sale or
conveyance, but not any such lease, the Company (or any successor entity which
shall theretofore have become such in the manner described in this Section 6.04)
shall be discharged from all obligations and covenants under this Indenture and
the Securities and may thereupon be dissolved and liquidated.


 


(c)                                  The Company shall have delivered to
the Trustee an Officer’s Certificate and Opinion of Counsel stating that the
transaction or series of transactions and such supplemental indenture, if any,
complies with this Section 6.04, such supplemental indenture (if any)
constitutes the legal, valid and binding obligation of the Company and such
surviving entity enforceable against such surviving entity in accordance with
its terms, subject to customary exceptions, and all conditions precedent in
this Indenture relating to the transaction or series of transactions have been
satisfied.


 


Section 6.05                                Compliance
Certificate. Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, the Company shall furnish to the
Trustee annually, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company’s compliance with all conditions and covenants under this Indenture
(which compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture) and, in the event of any
Default, specifying each such Default and the nature and status thereof of
which such person may have knowledge. Such certificates need not comply with Section 16.01
of this Indenture.


 


Section 6.06                                Conditional
Waiver by Holders of Securities. Anything in this Indenture to the contrary
notwithstanding, the Company or a guarantor of any series of Securities may
fail or omit in any particular instance to comply with a covenant or condition
set forth herein with respect to any series of Securities if the


 


25

















 


Company shall have obtained and
filed with the Trustee, prior to the time of such failure or omission, evidence
(as provided in Article VIII) of the consent of the Holders of a majority
in aggregate principal amount of the Securities of such series at the time
Outstanding, either waiving such compliance in such instance or generally
waiving 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, or impair any right consequent thereon and, until such waiver
shall have become effective, the obligations of the Company or a guarantor of
any series of Securities and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.


 


Section 6.07                                Statement
by Officers as to Default. The Company shall deliver to the Trustee as soon
as possible and in any event within 30 days after the Company becomes
aware of the occurrence of any Event of
Default or an event which, with the giving of notice or the lapse of time or
both, would constitute an Event of Default, an Officer’s Certificate setting
forth the details of such Event of Default or Default and the action which the
Company proposes to take with respect thereto.


 


ARTICLE
VII


 


REMEDIES
OF TRUSTEE AND SECURITYHOLDERS


 


Section 7.01                                Events
of Default. Except where otherwise indicated by the context or where the
term is otherwise defined for a specific purpose, the term “Event of Default”
as used in this Indenture with respect to Securities of any series shall mean
one of the following described events unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the manner
contemplated in Section 3.01:


 


(a)                                  the failure to pay any installment
of interest on any Security of such series when and as the same shall become
payable, which failure shall have continued unremedied for a period of
30 days;


 


(b)                                 the failure to pay the principal of
(and premium, if any, on) any Security of such series, when and as the same
shall become payable, whether at Maturity as therein expressed, by call for
redemption (otherwise than pursuant to a sinking fund), by declaration as
authorized by this Indenture or otherwise;


 


(c)                                  the failure to pay a sinking fund
installment, if any, when and as the same shall become payable by the terms of
a Security of such series, which failure shall have continued unremedied for a
period of 30 days;


 


(d)                                 the failure by the Company, subject
to the provisions of Section 6.06, to perform any covenants or agreements
contained in this Indenture (including any indenture supplemental hereto
pursuant to which the Securities of such series were issued as contemplated by Section 3.01)
(other than a covenant or agreement which has been expressly included in this
Indenture solely for the benefit of a series of Securities other than that series
and other than a covenant or agreement a default in the performance of which is
elsewhere in this Section 7.01 specifically addressed), which failure
shall not have been remedied, and without provision deemed to be adequate for
the remedying thereof having been made, for a period of 90 days after
written notice shall have been given to the Company by the Trustee or shall
have been given to the Company and the Trustee by Holders of 25% or more in
aggregate principal amount of the Securities of such series then Outstanding,
specifying such failure, requiring the Company to remedy the same and stating
that such notice is a “Notice of Default” hereunder;


 


(e)                                  the entry by a court having
jurisdiction in the premises of a decree or order for relief in respect of the
Company in an involuntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or of substantially all the property of the Company or
ordering the winding-up or liquidation of its affairs and such decree or order
shall remain unstayed and in effect for a period of 90 consecutive days;


 


(f)                                    the commencement by the Company of a
voluntary case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by the Company to
the entry of an order for relief in an involuntary case under any such law, or
the consent by the Company to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar
official) of the Company or of


 


26

















 


substantially all the property of the
Company 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 in
furtherance of any action; or


 


(g)                                 the occurrence of any other Event of
Default with respect to Securities of such series as provided in Section 3.01;


 


provided, however, that no event described in clause (d) or
(other than with respect to a payment default) (g) above shall constitute
an Event of Default hereunder until a Responsible Officer assigned to and
working in the Trustee’s corporate trust department has actual knowledge
thereof or until a written notice of any such event is received by the Trustee
at the Corporate Trust Office, and such notice refers to the facts underlying
such event, the Securities generally, the Company and the Indenture.


 


Notwithstanding
the foregoing provisions of this Section 7.01, if the principal or any
premium or interest on any Security is payable in a Currency other than the
Currency of the United States and such Currency is not available to the Company
for making payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to satisfy its obligations to Holders of the Securities by making such payment
in the Currency of the United States in an amount equal to the Currency of the
United States equivalent of the amount payable in such other Currency, as
determined by the Company, and conclusively relied upon by the Trustee, by
reference to the noon buying rate in The City of New York for cable transfers
for such Currency (“Exchange Rate”), as such Exchange Rate is reported or
otherwise made available by the Federal Reserve Bank of New York on the date of
such payment, or, if such rate is not then available, on the basis of the most
recently available Exchange Rate. Notwithstanding the foregoing provisions of
this Section 7.01, any payment made under such circumstances in the
Currency of the United States where the required payment is in a Currency other
than the Currency of the United States will not constitute an Event of Default
under this Indenture.


 


Section 7.02                                Acceleration;
Rescission and Annulment.


 


(a)                                  Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, if
any one or more of the above-described Events of Default (other than an Event
of Default specified in Section 7.01(e) or 7.01(f)) shall happen with
respect to Securities of any series at the time Outstanding, then, and in each
and every such case, during the continuance of any such Event of Default, the
Trustee or the Holders of 25% or more in principal amount of the Securities of
such series then Outstanding may declare the principal (or, if the Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of and all
accrued but unpaid interest on all the Securities of such series then
Outstanding to be due and payable immediately by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 7.01(e) or 7.01(f) occurs
and is continuing, then in every such case, the principal amount of all of the
Securities of that series then Outstanding shall automatically, and without any
declaration or any other action on the part of the Trustee or any Holder,
become due and payable immediately. Upon payment of such amounts in the
Currency in which such Securities are denominated (subject to Section 7.01
and except as otherwise provided pursuant to Section 3.01), all
obligations of the Company in respect of the payment of principal of and
interest on the Securities of such series shall terminate.


 


(b)                                 The provisions of Section 7.02(a),
however, are subject to the condition that, at any time after the principal of
all the Securities of such series, to which any one or more of the
above-described Events of Default is applicable, shall have been so declared to
be due and payable, and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter provided in this Article,
the Event of Default giving rise to such declaration of acceleration shall,
without further act, be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to have been rescinded
and annulled, if:


 


(i)                                     the Company has paid or deposited
with the Trustee or Paying Agent a sum in the Currency in which such Securities
are denominated (subject to Section 7.01 and except as otherwise provided
pursuant to Section 3.01) sufficient to pay


 


27

















 


(A)           all amounts owing the Trustee and any predecessor
trustee hereunder under Section 11.01(a) (provided, however, that all
sums payable under this clause (A) shall be paid in U.S. Dollars);


 


(B)             all arrears of interest, if any, upon all the
Securities of such series (with interest, to the extent that interest thereon
shall be legally enforceable, on any overdue installment of interest at the
rate borne by such Securities at the rate or rates prescribed therefor in such
Securities); and


 


(C)             the principal of and premium, if any, on any
Securities of such series that have become due otherwise than by such
declaration of acceleration and interest thereon;


 


(ii)                                  every other Default and Event of
Default with respect to Securities of that series, other than the non-payment
of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 7.06.


 


(c)                                  No such rescission shall affect any
subsequent Default or impair any right consequent thereon.


 


(d)                                 For all purposes under this
Indenture, if a portion of the principal of any Original Issue Discount
Securities shall have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount of such
Original Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and payable as a
result of such acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration, together
with interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities.


 


Section 7.03                                Other
Remedies. Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, upon failure for a period of
30 days to pay any installment of interest on the Securities of any series
or failure to pay the principal of and premium, if any, on any of the
Securities of such series when and as the same shall become due and payable,
whether at Maturity, or by call for redemption (other than pursuant to the
sinking fund), by declaration as authorized by this Indenture, or otherwise, or
failure for a period of 30 days to make any required sinking fund payment
as to a series of Securities, then, upon demand of the Trustee, the Company
will pay to the Paying Agent for the benefit of the Holders of Securities of such
series then Outstanding the whole amount which then shall have become due and
payable on all the Securities of such series, with interest on the overdue
principal and premium, if any, and (so far as the same may be legally
enforceable) on the overdue installments of interest at the rate borne by the
Securities of such series, and all amounts owing the Trustee and any
predecessor trustee hereunder under Section 11.01(a).


 


In
case of failure forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and
empowered to institute any action or proceeding at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Securities of
such series, and collect the moneys adjudged or decreed to be payable out of
the property of the Company or any other obligor upon the Securities of such
series, wherever situated, in the manner provided by law. Every recovery of
judgment in any such action or other proceeding, subject to the payment to the
Trustee of all amounts owing the Trustee and any predecessor trustee hereunder
under Section 11.01(a), shall be for the ratable benefit of the Holders of
such series of Securities which shall be the subject of such action or
proceeding. All rights of action upon or under any of the Securities or this
Indenture may be enforced by the Trustee without the possession of any of the
Securities and without the production of any thereof at any trial or any
proceeding relative thereto.


 


Section 7.04                                Trustee
as Attorney-in-Fact. The Trustee is hereby appointed, and each and every
Holder of the Securities, by receiving and holding the same, shall be
conclusively deemed to have appointed the Trustee, the true and lawful
attorney-in-fact of such Holder, with authority to make or file (whether or not
there shall be a Default in respect of the payment of the principal of, or
interest on, any of the Securities), in its own name and as trustee of an express trust or otherwise as it shall
deem advisable, in any receivership, insolvency, liquidation, bankruptcy,
reorganization or other judicial proceeding relative to the Company or any
other obligor upon the


 


28

















 


Securities or to their respective creditors
or property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be
necessary or advisable in order to have the claims of the Trustee and any
predecessor trustee hereunder and of the Holders of the Securities allowed in
any such proceeding and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to execute and deliver any and
all other papers and documents and to do and perform any and all other acts and
things, as it may deem necessary or advisable in order to enforce in any such
proceeding any of the claims of the Trustee and any predecessor trustee
hereunder and of any of such Holders in respect of any of the Securities; and
any receiver, assignee, trustee, custodian or debtor in any such proceeding is
hereby authorized, and each and every taker or Holder of the Securities, by
receiving and holding the same, shall be conclusively deemed to have authorized
any such receiver, assignee, trustee, custodian or debtor, to make any such
payment or delivery only to or on the order of the Trustee, and to pay to the
Trustee any amount due it and any predecessor trustee hereunder under Section 11.01(a);
provided, however, that nothing herein contained shall be deemed to authorize
or empower the Trustee to consent to or accept or adopt, on behalf of any
Holder of Securities, any plan of reorganization or readjustment affecting the
Securities or the rights of any Holder thereof, or to authorize or empower the
Trustee to vote in respect of the claim of any Holder of any Securities in any
such proceeding.  The Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors’ or other similar committee.


 


Section 7.05                                Priorities.
Any moneys or properties collected by the Trustee with respect to a series of
Securities under this Article VII, or after an Event of Default any moneys
or properties distributable in respect of the Company’s or any other obligor’s
obligations under this Indenture, shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution of such moneys or
properties and, in the case of the distribution of such moneys or properties on
account of the Securities of any series, upon presentation of the Securities of
such series, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:


 


FIRST: To the payment of
all amounts due or reasonably anticipated to become due to the Trustee and any
predecessor trustee hereunder under Section 11.01(a).


 


SECOND: In case the
principal of the Outstanding Securities of such series shall not have become
due and be unpaid, to the payment of interest on the Securities of such series,
in the chronological order of the Maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the rate borne by
such Securities, such payments to be made ratably to the Persons entitled
thereto.


 


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


 


Any surplus then remaining shall be paid to the
Company or as directed by a court of competent jurisdiction.


 


Section 7.06                                Control
by Securityholders; Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities of any series at the time Outstanding may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee hereunder, or of exercising any trust or power hereby
conferred upon the Trustee with respect to the Securities of such series,
provided, however, that, subject to the provisions of Sections 11.01 and
11.02, 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 be unduly prejudicial to Holders not joining
in such direction (it being understood that the Trustee does not have an


 


29

















 


affirmative duty to ascertain
whether or not any such directions are unduly prejudicial to such Holders) or
would involve the Trustee in personal liability. The Holders of a majority in
aggregate principal amount of such series of Securities at the time Outstanding
may on behalf of the Holders of all of the Securities of such series waive any
past Default or Event of Default with respect to such series and its
consequences except a Default in the payment of interest or any premium on or
the principal of the Securities of such series. Upon any such waiver, the
Company, each guarantor of such series of Securities, the Trustee and the
Holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall
have been waived as permitted by this Section 7.06, said Default or Event
of Default shall for all purposes of the Securities of such series and this
Indenture be deemed to have been cured and to be not continuing.


 


Section 7.07                                Limitation
on Suits. No Holder of any Security of any series shall have any right to
institute any action, suit or proceeding at law or in equity for the execution
of any trust hereunder or for the appointment of a receiver or for any other
remedy hereunder, in each case with respect to an Event of Default with respect
to such series of Securities, unless (a) such Holder previously shall have
given to the Trustee written notice of one or more of the Events of Default
herein specified with respect to such series of Securities, (b) the
Holders of 25% in principal amount of the Securities of such series then
Outstanding shall have requested the Trustee in writing to take action in
respect of the matter complained of, (c) such Holder or Holders shall have
offered to the Trustee security and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, (d) the
Trustee, for 60 days after receipt of such notification, request and offer
of indemnity, shall have neglected or refused to institute any such action,
suit or proceeding and (e) during such 60-day period the Holders of a
majority in principal amount of the Securities do not give the Trustee a
direction inconsistent with the request; and such notification, request and
offer of indemnity are hereby declared in every such case to be conditions
precedent to any such action, suit or proceeding by any Holder of any Security
of such series; it being understood and intended that no one or more of the
Holders of Securities of such series shall have any right in any manner
whatsoever by his, her, its or their action to enforce any right hereunder,
except in the manner herein provided, and that every action, suit or proceeding
at law or in equity shall be instituted, had
and maintained in the manner herein provided and for the equal benefit of all
Holders of the Outstanding Securities of such series; provided, however, that
nothing in this Indenture or in the Securities of such series shall affect or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on the Securities of such
series to the respective Holders of such Securities at the respective due dates
in such Securities stated, or affect or impair the right, which is also
absolute and unconditional, of such Holders to institute suit to enforce the
payment thereof.


 


Section 7.08                                Undertaking
for Costs. All parties to this Indenture and each Holder of any Security,
by such Holder’s acceptance thereof, shall be deemed to have agreed that any
court may in its discretion require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or in any action, suit
or proceeding against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such action, suit or proceeding of
an undertaking to pay the costs of such action, suit or proceeding, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such action, suit
or proceeding, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, however, that the provisions of
this Section 7.08 shall not apply to any action, suit or proceeding
instituted by the Trustee, to any action, suit or proceeding instituted by any
one or more Holders of Securities holding in the aggregate more than 25% in
principal amount of the Securities of any series Outstanding, or to any action,
suit or proceeding instituted by any Holder of Securities of any series for the
enforcement of the payment of the principal of or premium, if any, or the
interest on, any of the Securities of such series, on or after the respective
due dates expressed in such Securities.


 


Section 7.09                                Remedies
Cumulative. No remedy herein conferred upon or reserved to the Trustee or
to the Holders of Securities of any series is intended to be exclusive of any
other remedy or remedies, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the Trustee
or of any Holder of the Securities of any series to exercise any right or power
accruing upon any Default or Event of Default shall impair any such right or
power or shall be construed to be a waiver of any such Default or Event of
Default or an acquiescence therein; and every power and remedy given by this Article VII
to the Trustee and to the Holders of Securities of any series, respectively,
may be exercised from time to time and as often as may be deemed expedient


 


30

















 


by the Trustee or by the
Holders of Securities of such series, as the case may be. In case the Trustee
or any Holder of Securities of any series shall have proceeded to enforce any
right under this Indenture and the proceedings for the enforcement thereof
shall have been discontinued or abandoned because of waiver or for any other
reason or shall have been adjudicated adversely to the Trustee or to such
Holder of Securities, then and in every such case the Company, each guarantor
of such series of Securities, the Trustee and the Holders of the Securities of
such series shall severally and respectively be restored to their former
positions and rights hereunder, and thereafter all rights, remedies and powers
of the Trustee and the Holders of the Securities of such series shall continue
as though no such proceedings had been taken, except as to any matters so
waived or adjudicated.


 


ARTICLE
VIII


 


CONCERNING
THE SECURITYHOLDERS


 


Section 8.01                                Evidence
of Action of Securityholders. Whenever in this Indenture it is provided
that the Holders of a specified percentage or a majority in aggregate principal
amount of the Securities or of any series of Securities may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such specified percentage or majority
have joined therein may be evidenced by (a) any instrument or any number
of instruments of similar tenor executed by Securityholders in person, by an
agent or by a proxy appointed in writing, including through an electronic
system for tabulating consents operated by the Depositary for such series or
otherwise (such action becoming effective, except as herein otherwise expressly
provided, when such instruments or evidence of electronic consents are
delivered to the Trustee and, where it is hereby expressly required, to the
Company), or (b) by the record of the Holders of Securities voting in
favor thereof at any meeting of Securityholders duly called and held in
accordance with the provisions of Article IX, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of Securityholders.


 


Section 8.02                                Proof
of Execution or Holding of Securities. Proof of the execution of any
instrument by a Securityholder or his, her or its agent or proxy and proof of
the holding by any Person of any of the Securities shall be sufficient if made
in the following manner:


 


(a)                                  The fact and date of the execution
by any Person of any such instrument may be proved (i) by the certificate
of any notary public or other officer in any jurisdiction who, by the laws
thereof, has power to take acknowledgments or proof of deeds to be recorded
within such jurisdiction, that the Person who signed such instrument did
acknowledge before such notary public or other officer the execution thereof,
or (ii) by the affidavit of a witness of such execution sworn to before
any such notary or other officer. Where such execution is by a Person acting in
other than his or her individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his or her authority.


 


(b)                                 The ownership of Securities of any
series shall be proved by the Register of such Securities or by a certificate
of the Registrar for such series.


 


(c)                                  The record of any Holders’ meeting
shall be proved in the manner provided in Section 9.06.


 


(d)                                 The Trustee may require such
additional proof of any matter referred to in this Section 8.02 as it
shall reasonably deem appropriate or necessary.


 


(e)                                  If the Company shall solicit from
the Holders of Securities of any series any action, the Company may, at its
option fix in advance a record date for the determination of Holders of
Securities entitled to take such action, but the Company shall have no
obligation to do so. Any such record date shall be fixed at the Company’s
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Securities of record
at the close of business on such record date shall be deemed to be Holders of
Securities for the purpose of determining whether Holders of the requisite
proportion of Outstanding Securities of such series have authorized or agreed
or consented to such action, and for that purpose the Outstanding Securities of
such series shall be computed as of such record date.


 


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Section 8.03                                Persons
Deemed Owners.


 


(a)                                  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 3.08)
interest, if any, 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. All payments made to any Holder, or upon his, her or its order, shall
be valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Security.


 


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


 


Section 8.04                                Effect
of Consents. After an amendment, supplement, waiver or other action becomes
effective as to any series of Securities, a consent to it by a Holder of such
series of Securities is a continuing consent conclusive and binding upon such
Holder and every subsequent Holder of the same Securities or portion thereof,
and of any Security issued upon the transfer thereof or in exchange therefor or
in place thereof, even if notation of the consent is not made on any such
Security. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.


 


ARTICLE
IX


 


SECURITYHOLDERS’
MEETINGS


 


Section 9.01                                Purposes
of Meetings. A meeting of Securityholders of any or all series may be
called at any time and from time to time pursuant to the provisions of this Article IX
for any of the following purposes:


 


(a)                                  to give any notice to the Company or
to the Trustee, or to give any directions to the Trustee, or to consent to the
waiving of any Default or Event of Default hereunder and its consequences, or
to take any other action authorized to be taken by Securityholders pursuant to
any of the provisions of Article VIII;


 


(b)                                 to remove the Trustee and nominate a
successor trustee pursuant to the provisions of Article XI;


 


(c)                                  to consent to the execution of an
Indenture or of indentures supplemental hereto pursuant to the provisions of Section 14.02;
or


 


(d)                                 to take any other action authorized
to be taken by or on behalf of the Holders of any specified aggregate principal
amount of the Securities of any one or more or all series, as the case may be,
under any other provision of this Indenture or under applicable law.


 


Section 9.02                                Call
of Meetings by Trustee. The Trustee may at any time call a meeting of all
Securityholders of all series that may be affected by the action proposed to be
taken, to take any action specified in Section 9.01, to be held at such
time and at such place as the Trustee shall determine. Notice of every meeting
of the Securityholders of a series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to Holders of Securities of such series at their
addresses as they shall appear on the Register of the Company. Such notice
shall be mailed not less than 20 nor more than 90 days prior to the date
fixed for the meeting.


 


Section 9.03                                Call
of Meetings by Company or Securityholders. In case at any time the Company
or the Holders of at least 25% in aggregate principal amount of the Securities
of a series (or of all series, as the case may be) then Outstanding that may be
affected by the action proposed to be taken, shall have requested the Trustee to
call a meeting of Securityholders of such series (or of all series), by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Securityholders may determine


 


32

















 


the time and the place for such
meeting and may call such meeting to take any action authorized in Section 9.01,
by mailing notice thereof as provided in Section 9.02.


 


Section 9.04                                Qualifications
for Voting. To be entitled to vote at any meeting of Securityholders, a
Person shall (a) be a Holder of one or more Securities affected by the
action proposed to be taken at the meeting or (b) be a Person appointed by
an instrument in writing as proxy by a Holder of one or more such Securities.
The only Persons who shall be entitled to be present or to speak at any meeting
of Securityholders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section 9.05                                Regulation
of Meetings.


 


(a)                                  Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall deem fit.


 


(b)                                 The Trustee shall, by an instrument
in writing, appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Securityholders as provided in Section 9.03,
in which case the Company or the Securityholders calling the meeting, as the
case may be, shall in like manner appoint a temporary chair. A permanent
chairman and a permanent secretary of the meeting shall be elected by majority
vote of the meeting.


 


(c)                                  Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, at
any meeting of Securityholders of a series, each Securityholder of such series
of such Securityholder’s proxy shall be entitled to one vote for each $1,000
principal amount of Securities of such series Outstanding held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities of such series held
by him or her or instruments in writing as aforesaid duly designating him or
her as the Person to vote on behalf of other Securityholders. At any meeting of
the Securityholders duly called pursuant to the provisions of Section 9.02
or 9.03 the presence of Persons holding or representing Securities in an
aggregate principal amount sufficient to take action upon the business for the
transaction of which such meeting was called shall be necessary to constitute a
quorum, and any such meeting may be adjourned from time to time by a majority
of those present, whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice.


 


Section 9.06                                Voting.
The vote upon any resolution submitted to any meeting of Securityholders of a series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts of the Securities of such series held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 9.02. The record shall show the
principal amounts of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.


 


Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.


 


Section 9.07                                No
Delay of Rights by Meeting. Nothing contained in this Article IX shall
be deemed or construed to authorize or permit, by reason of any call of a
meeting of Securityholders of any series or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise
of


 


33

















 


any right or rights conferred
upon or reserved to the Trustee or to the Securityholders of such series under
any of the provisions of this Indenture or of the Securities of such series.


 


ARTICLE
X


 


REPORTS
BY THE COMPANY AND THE TRUSTEE AND

SECURITYHOLDERS’ LISTS


 


Section 10.01                          Reports
by Trustee.


 


(a)                                  So long as any Securities are
outstanding, the Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided therein. If
required by Section 313(a) of the Trust Indenture Act, the Trustee
shall, within 60 days after each January 15 following the date of the
initial issuance of Securities under this Indenture, deliver to Holders a brief
report which complies with the provisions of such Section 313(a). The
Trustee will also transmit by mail all reports required pursuant to Section 313(c) of
the Trust Indenture Act.


 


(b)                                 The Trustee shall, at the time of
the transmission to the Holders of Securities of any report pursuant to the
provisions of this Section 10.01, file a copy of such report with each
stock exchange upon which the Securities are listed, if any, and also with the
SEC in respect of a Security listed and registered on a national securities
exchange, if any. The Company agrees to notify the Trustee when, as and if the
Securities become listed on any stock exchange.


 


The
Company will reimburse the Trustee for all expenses incurred in the preparation
and transmission of any report pursuant to the provisions of this Section 10.01
and of Section 10.02.


 


Section 10.02                          Reports
by the Company. The Company shall file with the Trustee and the SEC, 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 in the Trust Indenture Act; provided that, unless
available on EDGAR, any such information, documents or reports required to be
filed with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act shall be filed with the Trustee within 30 days after the same is filed
with the SEC; and provided further, that the filing of the reports specified in
Section 13 or 15(d) of the Exchange Act by an entity that is the
direct or indirect parent of the Company will satisfy the requirements of this Section 10.02
so long as such entity is an obligor or guarantor on the Securities; and
provided further that the reports of such entity will not be required to include
condensed consolidating financial information for the Company in a footnote to
the financial statements of such entity. 
Delivery of reports, information and documents to the Trustee hereunder
is for informational purposes only and the Trustee’s receipt of any such
reports, information and documents 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 Officer’s
Certificates or statements delivered to the Trustee pursuant to Section 6.05).


 


Section 10.03                          Securityholders’
Lists. The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:


 


(a)                                  semi-annually, within 15 days
after each Record Date, but in any event not less frequently than
semi-annually, a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of Securities to which such Record Date
applies, as of such Record Date, and


 


(b)                                 at such other times as the Trustee
may request in writing, within 30 days after 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 so long as the Trustee shall
be the Registrar, such lists shall not be required to be furnished.


 


34
















 


ARTICLE
XI


 


CONCERNING
THE TRUSTEE


 


Section 11.01         Rights
of Trustees; Compensation and Indemnity. The Trustee accepts the trusts
created by this Indenture upon the terms and conditions hereof, including the
following, to all of which the parties hereto and the Holders from time to time
of the Securities agree:


 


(a)        The Trustee shall be entitled to such
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (including in any agent capacity
in which it acts). The compensation of the Trustee shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon its request for
all reasonable out-of-pocket expenses, disbursements and advances incurred or
made by the Trustee (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, bad faith or willful
misconduct.


 


The
Company also agrees to indemnify each of the Trustee and any predecessor
Trustee hereunder for, and to hold it harmless against, any and all loss,
liability, damage, claim, or expense incurred without its own negligence, bad
faith or willful misconduct, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder and the
performance of its duties (including in any agent capacity in which it acts),
as well as 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, except those attributable to its negligence, willful
misconduct or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder.  The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.


 


As
security for the performance of the obligations of the Company under this Section 11.01(a),
the Trustee shall have a lien upon all property and funds held or collected by
the Trustee as such, except funds held in trust by the Trustee to pay principal
of and interest on any Securities. Notwithstanding any provisions of this
Indenture to the contrary, the obligations of the Company to compensate,
reimburse and indemnify the Trustee under this Section 11.01(a) shall
survive the resignation or removal of the Trustee and any satisfaction and
discharge under Article XII. When the Trustee incurs expenses or renders
services after an Event of Default specified in clause (e) or (f) of Section 7.01
occurs, the expenses and compensation for the services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or similar laws.


 


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


 


(c)        The Trustee shall not be responsible in
any manner whatsoever for the correctness of the recitals herein or in the
Securities (except its certificates of authentication thereon) contained, or in
any prospectus, offering memorandum or other document used in connection with
the sale of the Securities, all of which are made solely by the Company; and
the Trustee shall not be responsible or accountable in any manner whatsoever
for or with respect to the validity or execution or sufficiency of this
Indenture or of the Securities or any guarantees (except its certificates of
authentication thereon), and the Trustee makes no representation with respect
thereto, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications
set forth therein. The Trustee shall not be accountable for the use or
application by the Company of any Securities, or the proceeds of any
Securities, authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.


 


(d)        The Trustee may consult with counsel of
its selection, and, to the extent permitted by Section 11.02, the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by the
Trustee hereunder in good faith and in accordance with such advice or Opinion
of Counsel.


 


35

















 


(e)        The Trustee, to the extent permitted by Section 11.02,
may rely upon the certificate of the Secretary or one of the Assistant
Secretaries of the Company as to the adoption of any Board Resolution or
resolution of the stockholders of the Company, and any request, direction,
order or demand of the Company mentioned herein shall be sufficiently evidenced
by, and 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 may rely upon, an Officer’s
Certificate delivered to the Trustee or any Company Order (unless other
evidence in respect thereof be herein specifically prescribed).


 


(f)         Subject to Section 11.04, the
Trustee or any agent of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Sections 310(b) and
311 of the Trust Indenture Act, may otherwise deal with the Company, the Parent
and any obligor with the same rights it would have had if it were not the
Trustee or such agent.


 


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


 


(h)        Any action taken by the Trustee pursuant
to any provision hereof at the request or with the consent of any Person who at
the time is the Holder of any Security shall be conclusive and binding in
respect of such Security upon all future Holders thereof or of any Security or
Securities which may be issued for or in lieu thereof in whole or in part,
whether or not such Security shall have noted thereon the fact that such
request or consent had been made or given.


 


(i)         Subject to the provisions of Section 11.02,
the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, 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.


 


(j)         Subject to the provisions of Section 11.02,
the Trustee shall not be under any obligation to exercise any of the rights or
powers vested in it by this Indenture at the request, order or direction of any
of the Holders of the Securities, pursuant to any provision of this Indenture,
unless one or more of the Holders of the Securities shall have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred by it therein or thereby.


 


(k)        Subject to the provisions of Section 11.02,
the Trustee shall not be liable for any action taken or omitted by it in good
faith and believed by it to be authorized or within its discretion or within
the rights or powers conferred upon it by this Indenture.


 


(l)         Subject to the provisions of Section 11.02,
the Trustee shall not be deemed to have knowledge or notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless the Company or Holders of not less than 25% of the
Outstanding Securities notify the Trustee thereof.


 


(m)       Subject to the provisions of the first
paragraph of Section 11.02, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or other paper or
document, but the Trustee, may, but shall not be required to, make further
inquiry or investigation into such facts or matters as it may see fit.


 


(n)        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.


 


(o)        In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities,


 


36

















 


communications
or computer (software and hardware) services; it being understood that the
Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.


 


Section 11.02         Duties
of Trustee.


 


(a)        If one or more of the Events of Default
specified in Section 7.01 with respect to the Securities of any series
shall have happened, then, during the continuance thereof, the Trustee shall,
with respect to the Securities of such series, exercise such of the rights and
powers vested in it by this Indenture, and shall use the same degree of care
and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.


 


(b)        None of the provisions of this Indenture
shall be construed as relieving the Trustee from liability for its own
negligent action, negligent failure to act, or its own willful misconduct,
except that, notwithstanding anything in this Indenture contained to the
contrary,


 


(i)        unless
and until an Event of Default specified in Section 7.01 with respect to
the Securities of any series shall have happened which at the time is
continuing,


 


(A)      the
Trustee undertakes to perform such duties and only such duties with respect to
the Securities of that series as are specifically set out in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee, whose duties and obligations shall be determined solely by
the express provisions of this Indenture; and


 


(B)       the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, in the absence of bad faith on
the part of the Trustee, upon certificates and opinions furnished to it
pursuant to the express provisions of this Indenture; but in the case of any
such certificates or opinions which, by the provisions of this Indenture, are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts, statements, opinions or
conclusions stated therein);


 


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


 


(iii)      the
Trustee shall not be liable to any Holder of Securities or to any other Person
with respect to any action taken or omitted to be taken by it in good faith, in
accordance with the direction of Securityholders given as provided in Section 7.06,
relating to the time, method and place of conducting any proceeding for any
remedy available to it or exercising any trust or power conferred upon it by
this Indenture.


 


(c)        None of the provisions of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise to 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 11.02.


 


Section 11.03         Notice
of Defaults. Within 90 days after the occurrence thereof, and if known
to the Trustee, the Trustee shall give to the Holders of the Securities of a
series notice of each Default or Event of Default with respect to the
Securities of such series known to the Trustee, by transmitting such notice to
Holders at their addresses as the same shall then appear on the Register of the
Company, unless such Default shall have been cured or waived before the giving
of such notice (the term “Default” being hereby defined to be the events
specified in Section 7.01, which are, or after notice or lapse of time or
both would become, Events of Default as defined in said Section). Except in the
case of a Default or Event of Default in payment of the principal of, premium,
if any, or


 


37

















 


interest on
any of the Securities of such series when and as the same shall become payable,
or to make any mandatory sinking fund payment as to Securities of the same
series, the Trustee shall be protected in withholding such notice, if and so
long as a Responsible Officer or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Securities of such series.


 


Section 11.04         Eligibility;
Disqualification.


 


(a)        The Trustee shall at all times satisfy
the requirements of TIA Section 310(a). The Trustee shall have a combined
capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition, and shall have a Corporate Trust
Office. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 11.04, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.


 


(b)        The Trustee shall comply with TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA Section 310(b)(i) any
series of Securities under this Indenture or any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(i) are met. If the Trustee
has or shall acquire a conflicting interest within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. If Section 310(b) of
the Trust Indenture Act is amended any time after the date of this Indenture to
change the circumstances under which a Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series or to change
any of the definitions in connection therewith, this Section 11.04 shall
be automatically amended to incorporate such changes.


 


Section 11.05         Registration
and Notice; Removal. The Trustee, or any successor to it hereafter appointed,
may at any time resign and be discharged of the trusts hereby created with
respect to any one or more or all series of Securities by giving to the Company
notice in writing. Such resignation shall take effect upon the appointment of a
successor Trustee and the acceptance of such appointment by such successor
Trustee. Any Trustee hereunder may be removed with respect to any series of
Securities at any time by the filing with such Trustee and the delivery to the
Company of an instrument or instruments in writing signed by the Holders of a
majority in principal amount of the Securities of such series then Outstanding,
specifying such removal and the date when it shall become effective.


 


If at any time:


 


(1)       the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months (or, if it is a shorter period, the period since the
initial issuance of the Securities of such series), or


 


(2)       the Trustee shall cease to be
eligible under Section 11.04 and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months (or, if it is a shorter period, the
period since the initial issuance of the Securities of such series), or


 


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


 


then, in any such case, (i) the Company by
written notice to the Trustee may remove the Trustee and appoint a successor
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Securityholder who has been a bona fide Holder of a Security for at least
six months (or, if it is a shorter period, the period since the initial
issuance of the Securities of such series) may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.


 


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Upon
its resignation or removal, any Trustee shall be entitled to the payment of
reasonable compensation for the services rendered hereunder by such Trustee and
to the payment of all reasonable expenses incurred hereunder and all moneys
then due to it hereunder. The Trustee’s rights to indemnification provided in Section 11.01(a) shall
survive its resignation or removal.


 


Section 11.06         Successor
Trustee by Appointment.


 


(a)        In case at any time the Trustee shall
resign, or shall be removed (unless the Trustee shall be removed as provided in
Section 11.04(b), in which event the vacancy shall be filled as provided
in said subdivision), or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or if a receiver of the Trustee or of its property shall
be appointed, or if 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 with respect to the Securities of one or more
series, a successor Trustee with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
series) may be appointed by the Holders of a majority in principal amount of
the Securities of that or those series then Outstanding, by an instrument or
instruments in writing signed in duplicate by such Holders and filed, one
original thereof with the Company and the other with the successor Trustee;
but, until a successor Trustee shall have been so appointed by the Holders of
Securities of that or those series as herein authorized, the Company, or, in
case all or substantially all the assets of the Company shall be in the
possession of one or more custodians or receivers lawfully appointed, or of
trustees in bankruptcy or reorganization proceedings (including a trustee or trustees
appointed under the provisions of the federal bankruptcy laws, as now or
hereafter constituted), or of assignees for the benefit of creditors, such
receivers, custodians, trustees or assignees, as the case may be, by an
instrument in writing, shall promptly appoint a successor Trustee with respect
to the Securities of such series. Subject to the provisions of
Sections 11.04 and 11.05, upon the appointment as aforesaid of a successor
Trustee with respect to the Securities of any series, the Trustee with respect
to the Securities of such series shall cease to be Trustee hereunder. After any
such appointment other than by the Holders of Securities of that or those
series, the Person making such appointment or such successor Trustee shall
forthwith cause notice thereof to be mailed to the Holders of Securities of
such series at their addresses as the same shall then appear on the Register of
the Company but any successor Trustee with respect to the Securities of such
series so appointed shall, immediately and without further act, be superseded
by a successor Trustee appointed by the Holders of Securities of such series in
the manner above prescribed, if such appointment be made prior to the
expiration of one year from the date of the mailing of such notice by the
Company, or by such receivers, trustees or assignees.


 


(b)        If any Trustee with respect to the
Securities of one or more series shall resign or be removed and a successor
Trustee shall not have been appointed by the Company or by the Holders of the
Securities of such series or, if any successor Trustee so appointed shall not
have accepted its appointment within 30 days after such appointment shall
have been made, the resigning Trustee at the expense of the Company may apply
to any court of competent jurisdiction for the appointment of a successor
Trustee. If in any other case a successor Trustee shall not be appointed
pursuant to the foregoing provisions of this Section 11.06 within three
months after such appointment might have been made hereunder, the Holder of any
Security of the applicable series or any retiring Trustee at the expense of the
Company may apply to any court of competent jurisdiction to appoint a successor
Trustee. Such court may thereupon, in any such case, after such notice, if any,
as such court may deem proper and prescribe, appoint a successor Trustee.


 


(c)        Any successor Trustee appointed
hereunder with respect to the Securities of one or more series shall execute,
acknowledge and deliver to its predecessor Trustee and to the Company, or to
the receivers, trustees, assignees or court appointing it, as the case may be,
an instrument accepting such appointment hereunder, and thereupon such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations with respect to such series of such predecessor Trustee with like
effect as if originally named as Trustee hereunder, and such predecessor
Trustee, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to pay over, and such successor Trustee shall be
entitled to receive, all moneys and properties held by such predecessor Trustee
as Trustee hereunder, subject nevertheless to its lien provided for in Section 11.01(a).
Nevertheless, on the written request of the Company or of the successor Trustee
or of the Holders of at least 10% in principal amount of the Securities of such
series then Outstanding, such predecessor Trustee, upon payment of its said charges
and disbursements, shall


 


39

















 


execute
and deliver an instrument transferring to such successor Trustee upon the
trusts herein expressed all the rights, powers and trusts of such predecessor
Trustee and shall assign, transfer and deliver to the successor Trustee all
moneys and properties held by such predecessor Trustee, subject nevertheless to
its lien provided for in Section 11.01(a); and, upon request of any such
successor Trustee and the Company shall make, execute, acknowledge and deliver
any and all instruments in writing for more fully and effectually vesting in
and confirming to such successor Trustee all such authority, rights, powers,
trusts, immunities, duties and obligations.


 


Section 11.07         Successor
Trustee by Merger. Any Person into which the Trustee or any successor to it
in the trusts created by this Indenture shall be merged or converted, or any
Person with which it or any successor to it shall be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee or any such successor to it shall be a party, or any Person to which
the Trustee or any successor to it shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Trustee, shall be the
successor Trustee under this Indenture without the execution or filing of any
paper or any further act on the part of any of the parties hereto; provided
that such Person shall be otherwise qualified and eligible under this Article.
In case at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture with respect to one or more series of Securities, any
of such Securities shall have been authenticated but not delivered by the
Trustee then in office, any successor to such Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.


 


Section 11.08         Right
to Rely on Officer’s Certificate. Subject to Section 11.02, and
subject to the provisions of Section 16.01 with respect to the
certificates required thereby, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence, bad faith or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer’s Certificate with respect thereto delivered to the Trustee, and
such Officer’s Certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.


 


Section 11.09         Appointment
of Authenticating Agent. The Trustee may appoint an agent (the
“Authenticating Agent”) reasonably acceptable to the Company to authenticate
the Securities, and the Trustee shall give written notice of such appointment
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by the Authenticating Agent. 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.


 


Each
Authenticating Agent shall at all times be a corporation organized and doing
business and in good standing under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Article XI, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Article XI, it shall resign immediately in the manner
and with the effect specified in this Article XI.


 


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


 


40

















 


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 Article XI,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 11.09, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 11.09.


 


The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 11.09, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 11.01.


 


Section 11.10         Communications
by Securityholders with Other Securityholders. Holders of Securities may
communicate pursuant to Section 312(b) of the Trust Indenture Act
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the Trust Indenture Act with
respect to such communications.


 


Section 11.11         Preferential
Collection of Claims Against the Company. The Trustee is subject to Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.


 


ARTICLE
XII


 


SATISFACTION
AND DISCHARGE; DEFEASANCE


 


Section 12.01         Applicability
of Article. If, pursuant to Section 3.01, provision is made for the
defeasance of Securities of a series and if the Securities of such series are
denominated and payable only in U.S. Dollars (except as provided pursuant to Section 3.01),
then the provisions of this Article shall be applicable except as
otherwise specified pursuant to Section 3.01 for Securities of such
series. Defeasance provisions, if any, for Securities denominated in a Foreign
Currency may be specified pursuant to Section 3.01.


 


Section 12.02         Satisfaction
and Discharge of Indenture. This Indenture, with respect to the Securities
of any series (if all series issued under this Indenture are not to be
affected), shall, upon Company Order, cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of such
Securities herein expressly provided for and rights to receive payments of
principal of and premium, if any, and interest on such Securities) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when,


 


(a)        either:


 


(i)        all
Securities of such series theretofore authenticated and delivered (other than (A) Securities
that have been destroyed, lost or stolen and that have been replaced or paid as
provided in Section 3.07 and (B) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 6.03) have been delivered to the Trustee for
cancellation; or


 


41

















 


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


 


(A)      have
become due and payable, or


 


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


 


(C)       are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice by the Trustee in the name, and at the
expense, of the Company, and in the case of (A), (B) or (C) above,
the Company has deposited or caused to be deposited with the Trustee or Paying
Agent as trust funds in trust for the purpose an amount in the Currency in
which such Securities are denominated (except as otherwise provided pursuant to
Section 3.01) sufficient to pay and discharge the entire Indebtedness on
such Securities for principal and premium, if any, and interest to the date of
such deposit (in the case of Securities that have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be; provided, however,
in the event a petition for relief under federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, is filed with respect to the Company within
91 days after the deposit and the Trustee is required to return the moneys
then on deposit with the Trustee to the Company, the obligations of the Company
under this Indenture with respect to such Securities shall not be deemed
terminated or discharged;


 


(b)        the Company or any guarantor has paid or
caused to be paid all other sums payable by it hereunder; and


 


(c)        the Company has delivered to the Trustee
an Officer’s 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 such series have been complied
with.


 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 11.01 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (a)(i) of
this Section, the obligations of the Trustee under Section 12.07 and Section 6.03(e) shall
survive.


 


Section 12.03         Defeasance
upon Deposit of Moneys or U.S. Government Obligations. At the Company’s
option, either (a) the Company and each of the guarantors shall be deemed
to have been Discharged (as defined below) from their obligations with respect
to Securities of any series (including the related guarantees) on the first day
after the applicable conditions set forth below have been satisfied or (b)(i) the
Company and each of the guarantors shall cease to be under any obligation to
comply with any term, provision or condition set forth in Sections 6.04,
6.07 and 10.02 with respect to Securities of any series (including the related
guarantees) (and, if so specified pursuant to Section 3.01, any other
restrictive covenant added for the benefit of such series pursuant to Section 3.01)
and (ii) the occurrence of an event specified in Sections 7.01(d), (e), (f) or
(g) shall not be deemed to be an Event of Default at any time after the
applicable conditions set forth below have been satisfied (“covenant
defeasance”):


 


(a)        the Company shall have deposited or
caused to be deposited irrevocably with the Trustee as trust funds in trust,
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) U.S.
Government Obligations (as defined below) that through the payment of interest
and principal in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an amount,
or (iii) a combination of (i) and (ii), sufficient, in the written
opinion of a nationally recognized firm of independent public accountants, to
pay and discharge each installment of principal (including any mandatory sinking
fund payments) of and premium, if any, and interest on, the Outstanding
Securities of such series on the dates such installments of interest or
principal and premium are due;


 


42

















 


(b)        no Default with respect to the
Securities of such series shall have occurred and be continuing on the date of
such deposit (other than a Default resulting from the borrowing of funds and
the grant of any related liens to be applied to such deposit);


 


(c)        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 U.S. federal income tax
purposes as a result of the Company’s exercise of its option under this Section and
will be subject to federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such action had not
been exercised and, in the case of the Securities of such series being
Discharged accompanied by a ruling to that effect received from or published by
the Internal Revenue Service; and


 


(d)        in the case of the Securities of such
series being Discharged, the Company shall have delivered to the Trustee an
Officer’s Certificate stating that all conditions precedent herein provided for
relating to the Discharge of this Indenture with respect to such series
pursuant to this Section 12.03 have been complied with.


 


Covenant
defeasance means that the Company and each of the guarantors may omit to comply
with and shall have no other liability in respect of any term, condition or
limitation set forth in any such Section or clause whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
clause or by reason of any reference in any such Section or clause to any
other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.


 


“Discharged”
means that the Company and each of the guarantors shall be deemed to have paid
and discharged the entire Indebtedness represented by, and obligations under,
the Securities of such series (including the related guarantees) and to have
satisfied all the obligations under this Indenture relating to the Securities
of such series and the related guarantees (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except (A) the
rights of Holders of Securities of such series to receive, from the trust fund
described in clause (a) above, payment of the principal of and premium, if
any, and interest on such Securities when such payments are due, (B) the
Company’s obligations with respect to Securities of such series under
Sections 3.04, 3.06, 3.07, 6.02, 12.06 and 12.07, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article XII.


 


“U.S.
Government Obligations” means securities that are (i) direct obligations
of the United States for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States the timely of
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under clauses (i) or
(ii) are not callable or redeemable at the action of the issuer thereof,
and shall also include a depositary receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depositary receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depositary receipt.


 


Section 12.04         Repayment
to Company. The Trustee and any Paying Agent shall promptly pay to the
Company (or to its designee) upon Company Order any excess moneys or U.S.
Government Obligations held by them at any time, including any such moneys or
obligations held by the Trustee under any escrow trust agreement entered into
pursuant to Section 12.06. The provisions of the last paragraph of Section 6.03
shall apply to any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Securities
for which money or U.S. Government Obligations have been deposited pursuant to Section 12.03.


 


Section 12.05         Indemnity
for U.S. Government Obligations. The Company shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
the deposited U.S. Government Obligations or the principal or interest received
on such U.S. Government Obligations.


 


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Section 12.06         Deposits
to Be Held in Escrow. Any deposits with the Trustee referred to in Section 12.03
above shall be irrevocable (except to the extent provided in
Sections 12.04 and 12.07) and shall be made under the terms of an escrow
trust agreement. If any Outstanding Securities of a series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund
requirement, the applicable escrow trust agreement shall provide therefor and
the Company shall make such arrangements as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company. The agreement shall provide that, upon satisfaction of
any mandatory sinking fund payment requirements, whether by deposit of moneys,
application of proceeds of deposited U.S. Government Obligations or, if
permitted, by delivery of Securities, the Trustee shall pay or deliver over to
the Company as excess moneys pursuant to Section 12.04 all funds or
obligations then held under the agreement and allocable to the sinking fund
payment requirements so satisfied.


 


If
Securities of a series with respect to which such deposits are made may be
subject to later redemption at the option of the Company or pursuant to
optional sinking fund payments, the applicable escrow trust agreement may, at
the option of the Company, provide therefor. In the case of an optional
redemption in whole or in part, such agreement shall require the Company to
deposit with the Trustee on or before the date notice of redemption is given
funds sufficient to pay the Redemption Price of the Securities to be redeemed
together with all unpaid interest thereon to the Redemption Date. Upon such
deposit of funds, the Trustee shall pay or deliver over to the Company as
excess funds pursuant to Section 12.04 all funds or obligations then held
under such agreement and allocable to the Securities to be redeemed. In the
case of exercise of optional sinking fund payment rights by the Company, such
agreement shall, at the option of the Company, provide that upon deposit by the
Company with the Trustee of funds pursuant to such exercise the Trustee shall
pay or deliver over to the Company as excess funds pursuant to Section 12.04
all funds or obligations then held under such agreement for such series and
allocable to the Securities to be redeemed.


 


Section 12.07         Application
of Trust Money.


 


Subject
to any applicable abandoned property law:


 


(a)        Neither the Trustee nor any other paying
agent shall be required to pay interest on any moneys deposited pursuant to the
provisions of this Indenture, except such as it shall agree with the Company in
writing to pay thereon. Any moneys so deposited for the payment of the
principal of, or premium, if any, or interest on the Securities of any series
and remaining unclaimed for two years after the date of the maturity of the
Securities of such series or the date fixed for the redemption of all the
Securities of such series at the time outstanding, as the case may be, shall be
repaid by the Trustee or such other paying agent to the Company upon its
written request and thereafter, anything in this Indenture to the contrary
notwithstanding, any rights of the Holders of Securities of such series in
respect of which such moneys shall have been deposited shall be enforceable
only against the Company, and all liability of the Trustee or such other paying
agent with respect to such moneys shall thereafter cease.


 


(b)        Subject to the provisions of the
foregoing paragraph, any moneys which at any time shall be deposited by the
Company or on its behalf with the Trustee or any other paying agent for the
purpose of paying the principal of, premium, if any, and interest on any of the
Securities shall be and are hereby assigned, transferred and set over to the
Trustee or such other paying agent in trust for the respective Holders of the
Securities for the purpose for which such moneys shall have been deposited; but
such moneys need not be segregated from other funds except to the extent
required by law.


 


Section 12.08         Deposits
of Non-U.S. Currencies. Notwithstanding the foregoing provisions of this
Article, if the Securities of any series are payable in a Currency other than
U.S. Dollars, the Currency or the nature of the government obligations to be
deposited with the Trustee under the foregoing provisions of this Article shall
be as set forth in the Company Order or established in the supplemental
indenture under which the Securities of such series are issued.


 


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ARTICLE XIII


 


IMMUNITY
OF CERTAIN PERSONS


 


Section 13.01         No
Personal Liability. No recourse shall be had for the payment of the
principal of, or the premium, if any, or interest on, any Security or for any
claim based thereon or otherwise in respect thereof or of the Indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company, any successor corporation or any guarantor,
either directly or through the Company, any successor corporation or any
guarantor, whether by virtue of any constitutional provision, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and the
Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company, any
successor corporation or any guarantor, either directly or through the Company,
any successor corporation or any guarantor, because of the incurring of the
Indebtedness hereby authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture or in any of the
Securities, or to be implied herefrom or therefrom, and that all liability, if
any, of that character against every such incorporator, stockholder, officer
and director is, by the acceptance of the Securities and as a condition of, and
as part of the consideration for, the execution of this Indenture and the issue
of the Securities expressly waived and released.


 


ARTICLE XIV


 


SUPPLEMENTAL
INDENTURES


 


Section 14.01         Without
Consent of Securityholders. Except as otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities, the Company, each
of the guarantors and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any one or more of or all the following purposes:


 


(a)           to add to the covenants and agreements of the Company,
to be observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, and to add Events of Default, in each case
for the protection or benefit of the Holders of all or any series of the
Securities (and if such covenants, agreements and Events of Default are to be
for the benefit of fewer than all series of Securities, stating that such
covenants, agreements and Events of Default are expressly being included for
the benefit of such series as shall be identified therein), or to surrender any
right or power herein conferred upon the Company;


 


(b)           to delete or modify any Events of Default with respect
to all or any series of the Securities, the form and terms of which are being
established pursuant to such supplemental indenture as permitted in
Section 3.01 (and, if any such Event of Default is applicable to fewer
than all such series of the Securities, specifying the series to which such
Event of Default is applicable), and to specify the rights and remedies of the
Trustee and the Holders of such Securities in connection therewith;


 


(c)           to add to or change any of the provisions of this
Indenture to provide, change or eliminate any restrictions on the payment of
principal of or premium, if any, on Securities; provided that any such action
shall not adversely affect the interests of the Holders of Securities of any
series in any material respect;


 


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


 


(e)           to evidence the succession of another corporation to
the Company, or successive successions, and the assumption by such successor of
the covenants and obligations of the Company contained in the Securities of one
or more series and in this Indenture or any supplemental indenture;


 


(f)            to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to one or more series
of Securities and to add to or change any of the provisions of


 


45

















 


this Indenture as shall be necessary
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 11.06(c);


 


(g)           to secure any series of Securities or to release any
collateral or lien securing Securities in accordance with the terms of the
applicable series of Securities;


 


(h)           to evidence any changes to this Indenture pursuant to
Sections 11.05, 11.06 or 11.07 hereof as permitted by the terms thereof;


 


(i)            to cure any ambiguity or to correct or supplement any
provision contained herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture or to conform the terms hereof, as amended and
supplemented, that are applicable to the Securities of any series to the
description of the terms of such Securities in the offering memorandum,
prospectus supplement or other offering document applicable to such Securities
at the time of initial sale thereof;


 


(j)            to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act;


 


(k)           to add guarantors or co-obligors with respect to any
series of Securities or to release guarantors from their guarantees of
Securities in accordance with the terms of the applicable series of Securities;


 


(l)            to make any change in any series of Securities that
does not adversely affect in any material respect the interests of the Holders
of such Securities;


 


(m)          to provide for uncertificated securities in addition
to certificated securities;


 


(n)           to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such series or
any other series of Securities;


 


(o)           to prohibit the authentication and delivery of
additional series of Securities; or


 


(p)           to establish the form and terms of Securities of any
series as permitted in Section 3.01, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Securities of any series,
as herein set forth, or other conditions, limitations or restrictions
thereafter to be observed.


 


Subject
to the provisions of Section 14.03, the Trustee is authorized to join with
the Company and each of the guarantors, in the execution of any such
supplemental indenture, to make the further agreements and stipulations which
may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property or assets thereunder.


 


Any
supplemental indenture authorized by the provisions of this Section 14.01
may be executed by the Company, each of the guarantors and the Trustee without
the consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 14.02.


 


Section 14.02         With
Consent of Securityholders; Limitations.


 


(a)           With the consent of the Holders (evidenced as provided
in Article VIII) of a majority in aggregate principal amount of the
Outstanding Securities of each series affected by such supplemental indenture
voting separately, the Company, each of the guarantors and the Trustee may,
from time to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any provisions of this Indenture or of modifying in
any manner the rights of the Holders of the Securities of such series to be
affected; provided, however, that, except as otherwise provided as


 


46

















 


contemplated by Section 3.01
with respect to any series of Securities, no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of each such
series affected thereby,


 


(i)            extend the Stated Maturity of the
principal of, or any installment of interest on, any Security, or reduce the
principal amount thereof or the interest thereon or any premium payable upon
redemption thereof, or extend the Stated Maturity of, or change the Currency in
which the principal of and premium, if any, or interest on such Security is
denominated or payable, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or impair
the right to institute suit for the enforcement of any payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or materially adversely affect the economic terms of any right
to convert or exchange any Security as may be provided pursuant to
Section 3.01; or


 


(ii)           reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any 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


 


(iii)          modify any of the provisions of this
Section, Section 7.06 or Section 6.06, 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; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to “the Trustee” and concomitant changes in this Section and
Section 6.06, or the deletion of this proviso, in accordance with the requirements
of Sections 11.06 and 14.01(f); or


 


(iv)          modify,
without the written consent of the Trustee, the rights, duties or immunities of
the Trustee.


 


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


 


(c)           It shall not be necessary for the consent of the
Securityholders under this Section 14.02 to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.


 


(d)           The Company may set a record date for purposes of
determining the identity of the Holders of each series of Securities entitled
to give a written consent or waive compliance by the Company as authorized or
permitted by this Section. Such record date shall not be more than 30 days
prior to the first solicitation of such consent or waiver or the date of the
most recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 312 of the Trust Indenture Act.


 


(e)           Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section 14.02, the Company shall mail a notice, setting forth in general
terms the substance of such supplemental indenture, to the Holders of
Securities at their addresses as the same shall then appear in the Register of
the Company. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.


 


Section 14.03         Trustee
Protected. Upon the request of the Company, accompanied by the Officer’s
Certificate and Opinion of Counsel required by Section 16.01 stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture, and evidence reasonably satisfactory to the Trustee of consent of
the Holders if the supplemental indenture is to be executed pursuant to
Section 14.02, the Trustee shall join with the Company and each of the
guarantors in the execution of said supplemental indenture unless said
supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or


 


47

















 


otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into said supplemental indenture. The Trustee shall be fully protected in
relying upon such Officer’s Certificate and an Opinion of Counsel.


 


Section 14.04         Effect
of Execution of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article XIV,
this Indenture shall be deemed to be modified and amended in accordance
therewith and, except as herein otherwise expressly provided, the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company, each of the guarantors and the Holders
of all of the Securities or of the Securities of any series affected, as the
case may be, shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.


 


Section 14.05         Notation
on or Exchange of Securities. Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article may bear a notation in the form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for the Securities then
Outstanding in equal aggregate principal amounts, and such exchange shall be
made without cost to the Holders of the Securities.


 


Section 14.06         Conformity
with TIA. Every supplemental indenture executed pursuant to the provisions
of this Article shall conform to the requirements of the Trust Indenture
Act as then in effect.


 


ARTICLE XV


 


SUBORDINATION
OF SECURITIES


 


Section 15.01         Agreement
to Subordinate. In the event a series of Securities is designated as
subordinated pursuant to Section 3.01, and except as otherwise provided in
a Company Order or in one or more indentures supplemental hereto, the Company,
for itself, its successors and assigns, covenants and agrees, and each Holder
of Securities of such series by his, her or its acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any) and interest, if any, on each and all of the Securities of such series is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness. In the event a series of Securities is not designated as
subordinated pursuant to Section 3.01(s), this Article XV shall have
no effect upon the Securities of such series.


 


Section 15.02         Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of Securities.
Subject to Section 15.01, upon any distribution of assets of the Company
upon any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings
or upon an assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of the Company or otherwise (subject to the power of
a court of competent jurisdiction to make other equitable provision reflecting
the rights conferred in this Indenture upon the Senior Indebtedness and the
holders thereof with respect to the Securities and the holders thereof by a
lawful plan of reorganization under applicable bankruptcy law):


 


(a)           the holders of all Senior Indebtedness shall be
entitled to receive payment in full of the principal thereof (and premium, if
any) and interest due thereon before the Holders of the Securities are entitled
to receive any payment upon the principal (or premium, if any) or interest, if
any, on Indebtedness evidenced by the Securities; and 


 


(b)           any payment or distribution of assets of the Company
of any 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 XV shall be paid by the liquidation trustee or
agent or other Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders
of Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued, ratably


 


48

















 


according to the aggregate amounts
remaining unpaid on account of the principal of (and premium, if any) and
interest on the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and


 


(c)           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 is paid in full, such payment or distribution shall be paid over,
upon written notice to a Responsible Officer of the Trustee, to the holder of
such Senior Indebtedness or his, her or its representative or representatives
or to the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, as calculated by the Company, for application to payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.


 


(d)           Subject to the payment in full of all Senior
Indebtedness, the Holders of the Securities shall be subrogated to the rights
of the holders of Senior Indebtedness (to the extent that distributions
otherwise payable to such holder have been applied to the payment of Senior
Indebtedness) to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest, if any, on the Securities shall be paid
in full and no such payments or distributions to the Holders of the Securities
of cash, property or securities otherwise distributable to the holders of
Senior Indebtedness shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the Securities be deemed to
be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article XV 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, on the
other hand. Nothing contained in this Article XV 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 Senior Indebtedness, and the
Holders of the Securities, the obligation of the Company, which is
unconditional and absolute, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest, if any, on the Securities as
and when the same shall become due and payable in accordance with their terms,
or to affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness, nor shall
anything herein or in the Securities 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 XV of the holders of Senior Indebtedness 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 XV, the Trustee, subject to the provisions of
Section 15.05, shall be entitled to conclusively rely upon a certificate
of the liquidating trustee or agent or other person making any distribution to
the Trustee for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereof and all other facts pertinent thereto or to this
Article XV.


 


Section 15.03         No
Payment on Securities in Event of Default on Senior Indebtedness. Subject
to Section 15.01, no payment by the Company on account of principal (or
premium, if any), sinking funds or interest, if any, on the Securities shall be
made at anytime if: (i) a default on Senior Indebtedness exists that
permits the holders of such Senior Indebtedness to accelerate its maturity and
(ii) the default is the subject of judicial proceedings or the Company has
received notice of such default. The Company may resume payments on the
Securities when full payment of amounts then due for principal (premium, if
any), sinking funds and interest on Senior Indebtedness has been made or duly
provided for in money or money’s worth.


 


In the
event that, notwithstanding the foregoing, any payment shall be received by the
Trustee when such payment is prohibited by the preceding paragraph of this
Section 15.03, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of such Senior Indebtedness or
their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
but only to the extent that the holders of such Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee


 


49

















 


in writing within 90 days of such payment of the
amounts then due and owing on such Senior Indebtedness and only the amounts
specified in such notice to the Trustee shall be paid to the holders of such
Senior Indebtedness.


 


Section 15.04         Payments
on Securities Permitted. Subject to Section 15.01, nothing contained
in this Indenture or in any of the Securities shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except as provided in Sections 15.02 and 15.03, payments of principal
of (or premium, if any) or interest, if any, on the Securities or
(b) prevent the application by the Trustee of any moneys or assets
deposited with it hereunder to the payment of or on account of the principal of
(or premium, if any) or interest, if any, on the Securities, unless a
Responsible Officer of the Trustee shall have received at its Corporate Trust
Office written notice of any fact prohibiting the making of such payment from
the Company or from the holder of any Senior Indebtedness or from the trustee
for any such holder, together with proof satisfactory to the Trustee of such
holding of Senior Indebtedness or of the authority of such trustee more than
two Business Days prior to the date fixed for such payment.


 


Section 15.05         Authorization
of Securityholders to Trustee to Effect Subordination. Subject to
Section 15.01, each Holder of Securities by his acceptance thereof
authorizes and directs the Trustee on his, her or its behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article XV and appoints the Trustee his attorney-in-fact
for any and all such purposes.


 


Section 15.06         Notices
to Trustee. The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment of monies or assets to or by the Trustee in respect of
the Securities of any series pursuant to the provisions of this
Article XV. Subject to Section 15.01, notwithstanding the provisions
of this Article XV or any other provisions of this Indenture, neither the
Trustee nor any Paying Agent (other than the Company) shall be charged with
knowledge of the existence of any Senior Indebtedness or of any fact which
would prohibit the making of any payment of moneys or assets to or by the
Trustee or such Paying Agent, unless and until a Responsible Officer of the
Trustee or such Paying Agent shall have received (in the case of a Responsible
Officer of the Trustee, at the Corporate Trust Office of the Trustee) written
notice thereof from the Company or from the holder of any Senior Indebtedness
or from the trustee for any such holder, together with proof satisfactory to
the Trustee of such holding of Senior Indebtedness or of the authority of such
trustee and, prior to the receipt of any such written notice, the Trustee shall
be entitled in all respects conclusively to presume that no such facts exist;
provided, however, that if at least two Business Days prior to the date upon
which by the terms hereof any such moneys or assets may become payable for any
purpose (including, without limitation, the payment of either the principal (or
premium, if any) or interest, if any, on any Security) a Responsible Officer of
the Trustee shall not have received with respect to such moneys or assets the
notice provided for in this Section 15.06, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such moneys or assets 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 within two Business Days prior to such
date. The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee on behalf of such holder) to establish that such a notice has
been given by a holder of Senior Indebtedness or a trustee on behalf of any
such holder. 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 to participate in any payment or distribution
pursuant to this Article XV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XV 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 15.07         Trustee
as Holder of Senior Indebtedness. Subject to Section 15.01, the
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article XV in respect of any Senior Indebtedness at any time
held by it to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder. Nothing in this Article XV shall apply to
claims of, or payments to, the Trustee under or pursuant to Sections 7.05
or 11.01.


 


Section 15.08         Modifications
of Terms of Senior Indebtedness. Subject to Section 15.01, any renewal
or extension of the time of payment of any Senior Indebtedness or the exercise
by the holders of Senior


 


50

















 


Indebtedness
of any of their rights under any instrument creating or evidencing Senior
Indebtedness, including, without limitation, the waiver of default thereunder,
may be made or done all without notice to or assent from the Holders of the
Securities or the Trustee. No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other action in
respect of, any liability or obligation under or in respect of, or of any of
the terms, covenants or conditions of any indenture or other instrument under
which any Senior Indebtedness is outstanding or of such Senior Indebtedness,
whether or not such release is in accordance with the provisions of any
applicable document, shall in any way alter or affect any of the provisions of
this Article XV or of the Securities relating to the subordination
thereof.


 


Section 15.09         Reliance
on Judicial Order or Certificate of Liquidating Agent. Subject to
Section 15.01, upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee and the Holders of the
Securities shall be entitled to conclusively rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of 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 XV.


 


Section 15.10         Satisfaction
and Discharge; Defeasance and Covenant Defeasance. Subject to
Section 15.01, amounts and U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Article XII and not,
at the time of such deposit, prohibited to be deposited under
Sections 15.02 or 15.03 shall not be subject to this Article XV.


 


Section 15.11         Trustee
Not Fiduciary for Holders of Senior Indebtedness. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or observe
only such of its covenants and obligations as are specifically set forth in
this Article XV, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness 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. The Trustee shall not be liable to any such
holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company, or any other Person, moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this
Article XV or otherwise.


 


ARTICLE XVI


 


MISCELLANEOUS
PROVISIONS


 


Section 16.01         Certificates
and Opinions as to Conditions Precedent.


 


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


 


(b)           Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 6.05 of this Indenture) shall
include (i) a statement that the Person giving such certificate or opinion
has read such covenant or condition; (ii) 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; (iii) a
statement that, in the view or opinion of such Person, he or she has made such
examination or investigation as is necessary to enable such Person to express
an informed view or opinion as to whether or not such


 


51

















 


covenant or condition has been
complied with; and (iv) a statement as to whether or not, in the view or
opinion of such Person, such condition or covenant has been complied with.


 


(c)           Any certificate, statement or opinion of an officer of
the Company 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 or her
certificate, statement or opinion is based are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate, statement 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,
statement or opinion or representations with respect to such matters are
erroneous.


 


(d)           Any certificate, statement or opinion of an officer of
the Company or of counsel to the Company may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of, or representations by, an
accountant or firm of accountants, unless such officer or counsel, as the case
may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting
matters upon which his or her certificate, statement or opinion may be based
are erroneous. Any certificate or opinion of any firm of independent registered
public accountants filed with the Trustee shall contain a statement that such
firm is independent.


 


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


 


(f)            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 16.02         Trust
Indenture Act Controls. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or another
provision included in this Indenture which is required to be included in this
Indenture by any of the provisions of Sections 310 to 318, inclusive, of
the Trust Indenture Act, such imposed duties or incorporated provision shall
control.


 


Section 16.03         Notices
to the Company and Trustee. Any notice or demand authorized by this
Indenture to be made upon, given or furnished to, or filed with, the Company or
the Trustee shall be sufficiently made, given, furnished or filed for all
purposes if it shall be mailed, delivered or telefaxed to:


 


(a)           the Company, at 4 Parkway North, Suite 400,
Deerfield, Illinois 60015, Attention: General Counsel, Facisimile No.: (847)
267-1004 or at such other address or facsimile number as may have been
furnished in writing to the Trustee by the Company.


 


(b)           the Trustee, at the Corporate Trust Office of the
Trustee, Attention: Corporate Trust Services.


 


Any
such notice, demand or other document shall be in the English language.


 


Section 16.04         Notices
to Securityholders; Waiver. Any notice required or permitted to be given to
Securityholders shall be sufficiently given (unless otherwise herein expressly
provided),


 


(a)           if to Holders, if given in writing by first class
mail, postage prepaid, to such Holders at their addresses as the same shall
appear on the Register of the Company.


 


52

















 


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


 


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


 


In any
case where notice to Holders is given by mail, neither the failure to mail such
notice nor any defect in any notice so mailed to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders, and any
notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. In any case where notice to Holders is given
by publication, any defect in any notice so published as to any particular
Holder shall not affect the sufficiency of such notice with respect to other
Holders, and any notice that is published in the manner herein provided shall
be conclusively presumed to have been duly given.


 


Section 16.05         Legal
Holiday. Unless otherwise specified pursuant to Section 3.01, in any
case where any Interest Payment Date, Redemption Date or Maturity of any
Security of any series shall not be a Business Day at any Place of Payment for
the Securities of that series, then payment of principal and premium, if any,
or interest need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on such Interest Payment Date, Redemption Date or
Maturity and no interest shall accrue on such payment for the period from and
after such Interest Payment Date, Redemption Date or Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.


 


Section 16.06         Effects
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 16.07         Successors
and Assigns. All covenants and agreements in this Indenture by the parties
hereto shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so expressed or not.


 


Section 16.08         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 16.09         Benefits
of Indenture. Nothing in this Indenture expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be construed,
to confer upon, or to give to, any Person or corporation other than the parties
hereto and their successors and the Holders of the Securities any benefit or
any right, remedy or claim under or by reason of this Indenture or any
covenant, condition, stipulation, promise or agreement hereof, and all
covenants, conditions, stipulations, promises and agreements in this Indenture
contained shall be for the sole and exclusive benefit of the parties hereto and
their successors and of the Holders of the Securities.


 


Section 16.10         Counterparts
Originals. This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.


 


Section 16.11         Governing
Law; Waiver of Trial by Jury. This Indenture, the Securities and the
guarantees shall be deemed to be contracts made under the laws of the State of
New York, and for all purposes shall be governed by and construed in accordance
with the laws of said State, without giving effect to the conflicts of law
rules thereof to the extent that the application of the laws of another
jurisdiction would be required thereby.


 


EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT


 


53

















 


MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS INDENTURE.


 


[Signatures on following page]


 


54

















 


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


 


	
   

  	
  CF
  INDUSTRIES, INC.,

  
	
   

  	
  as
  Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephen R. Wilson

  
	
   

  	
  Name:

  	
  Stephen
  R. Wilson

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CF
  INDUSTRIES HOLDINGS, INC.,

  
	
   

  	
  as
  a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephen R. Wilson

  
	
   

  	
  Name:

  	
  Stephen
  R. Wilson

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory S. Clarke

  
	
   

  	
  Name:

  	
  Gregory
  S. Clarke

  
	
   

  	
  Title:

  	
  Vice President