EX-4.1



 









 

 






AMERICAN STANDARD INC.




as Company




AMERICAN STANDARD COMPANIES INC.




and




AMERICAN STANDARD INTERNATIONAL INC.




as Guarantors




and




THE BANK OF NEW YORK




as Trustee














Indenture




Dated as of April 1, 2005














Debt Securities




 

 






 









 





AMERICAN STANDARD INC.

RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939

AND INDENTURE, DATED AS OF APRIL 1, 2005














	 	 	 	 	 
	Section of	 	 	 	 
	Trust Indenture	 	 	 	Section(s) of
	Act of 1939	 	 	 	Indenture
	Section 310
	 	(a)(1)	 	7.10
	 
	 	(a)(2)	 	7.10
	 
	 	(a)(3)	 	Not Applicable
	 
	 	(a)(4)	 	Not Applicable
	 
	 	(a)(5)	 	7.10
	 
	 	(b)	 	7.08, 7.10
	Section 311
	 	(a)	 	7.11
	 
	 	(b)	 	7.11
	 
	 	(c)	 	Not Applicable
	Section 312
	 	(a)	 	2.07
	 
	 	(b)	 	11.03
	 
	 	(c)	 	11.03
	Section 313
	 	(a)	 	7.06
	 
	 	(b)	 	7.06
	 
	 	(c)	 	7.06
	 
	 	(d)	 	7.06
	Section 314
	 	(a)	 	4.03, 4.04
	 
	 	(b)	 	Not Applicable
	 
	 	(c)(1)	 	11.04
	 
	 	(c)(2)	 	11.04
	 
	 	(c)(3)	 	Not Applicable
	 
	 	(d)	 	Not Applicable
	 
	 	(e)	 	11.05
	Section 315
	 	(a)	 	7.01(b)
	 
	 	(b)	 	7.05
	 
	 	(c)	 	7.01(a)
	 
	 	(d)	 	7.01(c)
	 
	 	(d)(1)	 	7.01(c)(1)
	 
	 	(d)(2)	 	7.01(c)(2)
	 
	 	(d)(3)	 	7.01(c)(3)
	 
	 	(e)	 	6.11
	Section 316
	 	(a)(1)(A)	 	6.05
	 
	 	(a)(1)(B)	 	6.04
	 
	 	(a)(2)	 	Not Applicable
	 
	 	(a)(last sentence)	 	2.11
	 
	 	(b)	 	6.07
	Section 317
	 	(a)(1)	 	6.08
	 
	 	(a)(2)	 	6.08
	 
	 	(b)	 	2.06
	Section 318
	 	(a)	 	11.01












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





i









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I Definitions and Incorporation by Reference
	 	 	1	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Other Definitions
	 	 	7	 
	SECTION 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	SECTION 1.04. Rules of Construction
	 	 	8	 
	ARTICLE II The Securities
	 	 	9	 
	SECTION 2.01. Amount Unlimited; Issuable in Series
	 	 	9	 
	SECTION 2.02. Denominations
	 	 	12	 
	SECTION 2.03. Forms Generally
	 	 	12	 
	SECTION 2.04. Execution, Authentication, Delivery and Dating
	 	 	12	 
	SECTION 2.05. Registrar and Paying Agent
	 	 	14	 
	SECTION 2.06. Paying Agent to Hold Money in Trust
	 	 	15	 
	SECTION 2.07. Holder Lists
	 	 	15	 
	SECTION 2.08. Transfer and Exchange
	 	 	15	 
	SECTION 2.09. Replacement Securities
	 	 	16	 
	SECTION 2.10. Outstanding Securities
	 	 	16	 
	SECTION 2.11. Original Issue Discount, Foreign-Currency Denominated and Treasury Securities
	 	 	17	 
	SECTION 2.12. Temporary Securities
	 	 	17	 
	SECTION 2.13. Cancellation
	 	 	17	 
	SECTION 2.14. Payments; Defaulted Interest
	 	 	18	 
	SECTION 2.15. Persons Deemed Owners
	 	 	18	 
	SECTION 2.16. Computation of Interest
	 	 	18	 
	SECTION 2.17. Global Securities; Book-Entry Provisions
	 	 	18	 
	SECTION 2.18. CUSIP Numbers
	 	 	21	 
	ARTICLE III Redemption
	 	 	21	 
	SECTION 3.01. Applicability of Article
	 	 	21	 
	SECTION 3.02. Notice to the Trustee
	 	 	21	 
	SECTION 3.03. Selection of Securities To Be Redeemed
	 	 	21	 
	SECTION 3.04. Notice of Redemption
	 	 	22	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.05. Effect of Notice of Redemption
	 	 	22	 
	SECTION 3.06. Deposit of Redemption Price
	 	 	23	 
	SECTION 3.07. Securities Redeemed or Purchased in Part
	 	 	23	 
	SECTION 3.08. Purchase of Securities
	 	 	23	 
	SECTION 3.09. Mandatory and Optional Sinking Funds
	 	 	23	 
	SECTION 3.10. Satisfaction of Sinking Fund Payments with Securities
	 	 	24	 
	SECTION 3.11. Redemption of Securities for Sinking Fund
	 	 	24	 
	ARTICLE IV Covenants
	 	 	25	 
	SECTION 4.01. Payment of Securities
	 	 	25	 
	SECTION 4.02. Maintenance of Office or Agency
	 	 	25	 
	SECTION 4.03. SEC Reports; Financial Statements
	 	 	26	 
	SECTION 4.04. Compliance Certificate
	 	 	26	 
	SECTION 4.05. Corporate Existence
	 	 	27	 
	SECTION 4.06. Waiver of Stay, Extension or Usury Laws
	 	 	27	 
	SECTION 4.07. Additional Amounts
	 	 	27	 
	SECTION 4.08. Limitation on Liens
	 	 	27	 
	SECTION 4.09. Limitation on Sale/Leaseback Transactions
	 	 	28	 
	SECTION 4.10. Calculation of Original Issue Discount
	 	 	28	 
	ARTICLE V Successors
	 	 	29	 
	SECTION 5.01. Limitations on Mergers and Consolidations
	 	 	29	 
	SECTION 5.02. Successor Person Substituted
	 	 	29	 
	ARTICLE VI Defaults And Remedies
	 	 	30	 
	SECTION 6.01. Events of Default
	 	 	30	 
	SECTION 6.02. Acceleration
	 	 	32	 
	SECTION 6.03. Other Remedies
	 	 	32	 
	SECTION 6.04. Waiver of Defaults
	 	 	32	 
	SECTION 6.05. Control by Majority
	 	 	33	 
	SECTION 6.06. Limitations on Suits
	 	 	33	 
	SECTION 6.07. Rights of Holders to Receive Payment
	 	 	34	 
	SECTION 6.08. Collection Suit by Trustee
	 	 	34	 
	SECTION 6.09. Trustee May File Proofs of Claim
	 	 	34	 
	SECTION 6.10. Priorities
	 	 	35	 






iii








 






	 	 	 	 	 
	 	 	Page	 
	SECTION 6.11. Undertaking for Costs
	 	 	35	 
	ARTICLE VII Trustee
	 	 	36	 
	SECTION 7.01. Duties of Trustee
	 	 	36	 
	SECTION 7.02. Rights of Trustee
	 	 	37	 
	SECTION 7.03. May Hold Securities
	 	 	38	 
	SECTION 7.04. Trustee’s Disclaimer
	 	 	38	 
	SECTION 7.05. Notice of Defaults
	 	 	38	 
	SECTION 7.06. Reports by Trustee to Holders
	 	 	38	 
	SECTION 7.07. Compensation and Indemnity
	 	 	39	 
	SECTION 7.08. Replacement of Trustee
	 	 	40	 
	SECTION 7.09. Successor Trustee by Merger, etc
	 	 	41	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	42	 
	SECTION 7.11. Preferential Collection of Claims Against the Company or a Guarantor
	 	 	42	 
	ARTICLE VIII Discharge of Indenture
	 	 	42	 
	SECTION 8.01. Termination of the Company’s and the Guarantors’ Obligations
	 	 	42	 
	SECTION 8.02. Application of Trust Money
	 	 	46	 
	SECTION 8.03. Repayment to Company or Guarantor
	 	 	46	 
	SECTION 8.04. Reinstatement
	 	 	47	 
	ARTICLE IX Supplemental Indentures And Amendments
	 	 	47	 
	SECTION 9.01. Without Consent of Holders
	 	 	47	 
	SECTION 9.02. With Consent of Holders
	 	 	48	 
	SECTION 9.03. Compliance with Trust Indenture Act
	 	 	50	 
	SECTION 9.04. Revocation and Effect of Consents
	 	 	50	 
	SECTION 9.05. Notation on or Exchange of Securities
	 	 	51	 
	SECTION 9.06. Trustee to Sign Amendments, etc
	 	 	51	 
	ARTICLE X Guarantee
	 	 	52	 
	SECTION 10.01. Guarantee
	 	 	52	 
	SECTION 10.02. Proceedings Against Guarantor
	 	 	52	 
	SECTION 10.03. Subrogation
	 	 	53	 
	SECTION 10.04. Guarantee for Benefit of Holders
	 	 	53	 
	ARTICLE XI Miscellaneous
	 	 	54	 






iv









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 11.01. Trust Indenture Act Controls
	 	 	54	 
	SECTION 11.02. Notices
	 	 	54	 
	SECTION 11.03. Communication by Holders with Other Holders
	 	 	55	 
	SECTION 11.04. Certificate and Opinion as to Conditions Precedent
	 	 	55	 
	SECTION 11.05. Statements Required in Certificate or Opinion
	 	 	56	 
	SECTION 11.06. Rules by Trustee and Agents
	 	 	56	 
	SECTION 11.07. Legal Holidays
	 	 	56	 
	SECTION 11.08. No Recourse Against Others
	 	 	56	 
	SECTION 11.09. Governing Law
	 	 	56	 
	SECTION 11.10. No Adverse Interpretation of Other Agreements
	 	 	57	 
	SECTION 11.11. Successors
	 	 	57	 
	SECTION 11.12. Severability
	 	 	57	 
	SECTION 11.13. Counterpart Originals
	 	 	57	 
	SECTION 11.14. Table of Contents, Headings, etc
	 	 	57	 






v









 






     INDENTURE dated as of April 1, 2005 among American Standard Inc., a
Delaware corporation (the “Company”), American Standard Companies Inc., a
Delaware corporation (“Holdings”), American Standard International Inc., a
Delaware corporation (“ASII” and, together with Holdings, the
“Guarantors”), and The Bank of New York, a New York banking corporation,
as trustee (the “Trustee”).



     Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Company’s unsecured debentures, notes or other evidences of
indebtedness (the “Securities”) to be issued from time to time in one or more series as provided in
this Indenture:



ARTICLE I




Definitions and Incorporation by Reference




     SECTION 1.01. Definitions.



     “Additional Amounts” means any additional amounts required by the express terms of a Security
or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto,
to be paid by the Company or any Guarantor, as the case may be, with respect to certain taxes,
assessments or other governmental charges imposed on certain Holders and that are owing to such
Holders.



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



     “Agent” means any Registrar or Paying Agent.



     “Attributable Liens,” means in connection with a sale and lease-back transaction, the lesser
of (a) the fair market value of the assets subject to such transaction and (b) the present value
(discounted at a rate per annum equal to the average interest borne by all outstanding Securities
determined on a weighted average basis and compounded semiannually) of the obligations of the
lessee for rental payments during the term of the related lease.



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



     “Board of Directors,” when used with reference to the Company or a Guarantor, means the Board
of Directors of the Company or such Guarantor, as the case may be, or any committee thereof duly
authorized, with respect to any particular matter,










 





2


to act by or on behalf of the Board of Directors of the Company or such Guarantor, as the case
may be.




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



     “Business Day” means any day that is not a Legal Holiday.



     “Capital Lease” means any Indebtedness represented by a lease obligation of a person incurred
with respect to real property or equipment acquired or leased by such person and used in its
business that is required to be recorded as a capital lease in accordance with GAAP.



     “Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person; provided, however, that for
purposes of any provision contained herein which is required by the TIA, “Company” shall also mean
each other obligor (if any), other than a Guarantor, on the Securities of a series.



     “Company Order” and “Company Request” mean, respectively, a written order or request signed in
the name of the Company by two Officers of the Company and, in the case of a Company Order pursuant
to Section 2.01 or 2.04, in the name of each Guarantor by an Officer of such Guarantor, and
delivered to the Trustee.



     “Consolidated Net Assets” means as of any particular time the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting therefrom all current
liabilities except (a) notes and loans payable, (b) current maturities of long-term debt and (c)
current maturities of obligations under Capital Leases, all as set forth on the most recent
consolidated balance sheet of the Company and its consolidated subsidiaries and determined in
accordance with GAAP.



     “Corporate Trust Office of the Trustee” means the office of the Trustee located at 101 Barclay
Street, Floor 8W, New York, New York 10286, Attention: Corporate Trust Administration, and as may
be located at such other address as the Trustee may give notice to the Company and the Guarantors.



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



     “Depositary” means, with respect to the Securities of any series issuable or issued in whole
or in part in global form, the Person specified pursuant to Section 2.01 hereof as the initial
Depositary with respect to the Securities of such series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture, and thereafter
“Depositary” shall mean or include such successor.











 





3


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



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



     “Exempted Debt” means the sum of the following as of the date of determination: (i)
Indebtedness of the Issuer and Guarantors incurred after the date of this Indenture and secured by
Liens not otherwise permitted by the first sentence under Limitation on Liens below (Section 4.08),
and (ii) Attributable Liens of the Issuer and Guarantors and their Subsidiaries in respect of sale
and lease-back transactions entered into after the date of this Indenture, other than sale and
lease-back transactions permitted by the limitation on sale and lease-back transactions set forth
under Section 4.09. For purposes of determining whether or not a sale and lease-back transaction is
“permitted” by Section 4.09, Limitation on Sale and Lease-Back Transactions, the last paragraph
under Section 4.08, Limitation on Liens (creating an exception for Exempted Debt), will be
disregarded.



     “Facility” means the Five Year Credit Agreement dated as of November 6, 2001, as amended on
November 5, 2002, among the Company, Holdings, ASII, certain Subsidiaries, the lenders named
therein and JPMorgan Chase Bank, N.A. as Administrative Agent, as such agreement may be amended
(including any amendment, restatement and successors thereof), supplemented or otherwise modified
from time to time, including any increase in the principal amount of the obligations thereunder.



     “GAAP” means generally accepted accounting principles in the United States, as in effect from
time to time.



     “Global Security” means a Security that is issued in global form in the name of the Depositary
with respect thereto or its nominee.



     “Government Obligations” means, with respect to a series of Securities, direct obligations of
the government that issues the currency in which the Securities of the series are payable for the
payment of which the full faith and credit of such government is pledged, or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of such government,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by such
government.



     “Guarantee” shall mean the guarantee of the Company’s obligations under the Securities by a
Guarantor as provided in Article X.



     “Guarantor” means, unless otherwise established for a series of Securities, each Person named
as a “Guarantor” in the first paragraph of this instrument, in each case until a successor to such
Person shall have become such pursuant to the applicable provisions of this Indenture, and
thereafter “Guarantor” shall mean such successor Person.











 





4


     “Holder” means a Person in whose name a Security is registered.



     “Indebtedness” means, with respect to any Person, without duplication, (i) any Obligation of
such Person relating to any indebtedness of such Person (A) for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a portion thereof),
(B) evidenced by notes, debentures or similar instruments (including purchase money obligations)
given in connection with the acquisition of any property or assets (other than trade accounts
payable for inventory or similar property acquired in the ordinary course of business), including
securities, for the payment of which such Person is liable, directly or indirectly, or the payment
of which is secured by a lien, charge or encumbrance on property or assets of such Person, (C) for
goods, materials or services purchased in the ordinary course of business (other than trade
accounts payable arising in the ordinary course of business), (D) with respect to letters of credit
or bankers acceptances issued for the account of such Person or performance, surety or similar
bonds, (E) for the payment of money relating to a Capital Lease or (F) under interest rate swaps,
caps or similar agreements and foreign exchange contracts, currency swaps or similar agreements;
(ii) any liability of others of the kind described in the preceding clause (i), which such Person
has guaranteed or which is otherwise its legal liability; and (iii) any and all deferrals,
renewals, extensions and refunding of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (i) or (ii). “Indenture” means this
Indenture as amended or supplemented from time to time pursuant to the provisions hereof, and
includes the terms of a particular series of Securities established as contemplated by Section
2.01.



     “Interest” means, with respect to an Original Issue Discount Security that by its terms bears
interest only after Maturity, interest payable after Maturity.



     “Interest Payment Date,” when used with respect to any Security, shall have the meaning
assigned to such term in the Security as contemplated by Section 2.01.



     “Issue Date” means, with respect to Securities of a series, the date on which the Securities
of such series are originally issued under this Indenture.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in any of
The City of New York, New York or a Place of Payment are authorized or obligated by law, regulation
or executive order to remain closed.



     “Lien” means any lien, security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).



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











 





5


     “Obligation” of any Person with respect to any specified Indebtedness means any obligation of
such Person to pay principal, premium, interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to such Person, whether or not a claim
for such post-petition interest is allowed in such Proceeding), penalties, reimbursement or
indemnification amounts, fees, expenses or other amounts relating to such Indebtedness.



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



     “Officers’ Certificate” means a certificate signed by two Officers of a Person and, in the
case of an Officers’ Certificate of the Company pursuant to Section 2.01 or 2.04, by an Officer of
each Guarantor.



     “Opinion of Counsel” means a written opinion from legal counsel. Such counsel may be an
employee of or counsel to the Company, the Guarantor or the Trustee.



     “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.02.



     “Permitted Liens” means (i) Liens securing Indebtedness under the Facility and any initial or
subsequent renewal, extension, refinancing, replacement or refunding thereof; (ii) Liens on
accounts receivable, merchandise inventory, equipment, and patents, trademarks, trade names and
other intangibles, securing Indebtedness; (iii) Liens on any asset of the Issuer and Guarantors,
any Subsidiary, or any joint venture to which the Issuer or the Guarantors or any of their
Subsidiaries is a party, created solely to secure obligations incurred to finance the
refurbishment, improvement or construction of such asset, which obligations are incurred no later
than 24 months after completion of such refurbishment, improvement or construction, and all
renewals, extensions, refinancings, replacements or refundings of such obligations; (iv)(a) Liens
given to secure the payment of the purchase price incurred in connection with the acquisition
(including acquisition through merger or consolidation) of property (including shares of stock),
including Capital Lease transactions in connection with any such acquisition, and (b) Liens
existing on property at the time of acquisition thereof or at the time of acquisition by the Issuer
or a Guarantor or a Subsidiary or any Person then owning such property whether or not such existing
Liens were given to secure the payment of the purchase price of the property to which they attach;
provided that, with respect to clause (a), the Liens shall be given within 24 months after such
acquisition and shall attach solely to the property acquired or purchased and any improvements then
or thereafter placed thereon; (v) Liens for taxes, assessments and governmental charges or levies
that are not yet delinquent, but the validity of which is being contested in good faith; (vi) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods; (vii) Liens upon specific items of inventory or
other goods and proceeds of any person











 





6


securing such person’s obligations in respect of bankers’ acceptances issued or created for
the account of such person to facilitate the purchase, shipment or storage of such inventory or
other goods; (viii) Liens securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the products and
proceeds thereof; (ix) Liens on key-man life insurance policies granted to secure Indebtedness of
the Issuer or Guarantors against the cash surrender value thereof; (x) Liens encumbering customary
initial deposits and margin deposits and other Liens in the ordinary course of business, in each
case securing Indebtedness of the Company or a Guarantor under interest swap obligations and
currency agreements and forward contract, option, futures contracts, futures options or similar
agreements or arrangements designed to protect the Issuer or a Guarantor or any of their
Subsidiaries from fluctuations in interest rates, currencies or the price of commodities; (xi)
Liens arising out of conditional sale, title retention, consignment or similar arrangements for the
sale of goods entered into by the Issuer or a Guarantor or any of their Subsidiaries in the
ordinary course of business; (xii) any mechanic’s, materialmen’s, carrier’s or other similar Liens
arising in the ordinary course of business (including construction of facilities) in respect of
obligations which are not yet due or which are being contested in good faith; and (xiii) Liens in
favor of the Issuer or a Guarantor or any Subsidiary.




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



     “Place of Payment” means, with respect to the Securities of any series, the place or places
where the principal of, premium (if any) and interest on and any Additional Amounts with respect to
the Securities of that series are payable as specified in accordance with Section 2.01 subject to
the provisions of Section 4.02.



     “principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.



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



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



     “Responsible Officer” means any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer, trust officer or any
other officer of the Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter
is referred because of such person’s knowledge of and familiarity with the particular subject and
who shall have direct responsibility for the administration of this Indenture.











 





7


     “Rule 144A Securities” means Securities of a series designated pursuant to Section 2.01 as
entitled to the benefits of Section 4.03(b).



     “SEC” means the U.S. Securities and Exchange Commission.



     “Securities” has the meaning stated in the preamble of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.



     “Security Custodian” means, with respect to Securities of a series issued in global form, the
Trustee for Securities of such series, as custodian with respect to the Securities of such series,
or any successor entity thereto.



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



     “Subsidiary” of a Person means a Person at least a majority of the outstanding voting stock of
which is owned, directly or indirectly, by such other Person or by one or more other Subsidiaries,
or by such other Person and one or more other Subsidiaries. For the purposes of this definition,
“voting stock” means stock having voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of any contingency.



     “TIA” means the Trust Indenture Act of 1939, as amended, as in effect on the date hereof.



     “Trustee” means the Person named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture, and thereafter “Trustee” means 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 means the Trustee with respect to Securities of that
series.



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



     “U.S. Government Obligations” means Government Obligations with respect to Securities payable
in Dollars.



     SECTION 1.02. Other Definitions.



	 	 	 	 	 
	Term Section	 	Defined in Section	 
	 
	 	 	 	 
	“Bankruptcy Custodian”
	 	 	6.01	 
	“Conversion Event”
	 	 	6.01	 
	“covenant defeasance”
	 	 	8.01	 















 





8



	 	 	 	 	 
	Term Section	 	Defined in Section	 
	“Event of Default”
	 	 	6.01	 
	“Exchange Rate”
	 	 	2.11	 
	“Judgment Currency”
	 	 	6.10	 
	“legal defeasance”
	 	 	8.01	 
	“mandatory sinking fund payment”
	 	 	3.09	 
	“optional sinking fund payment”.
	 	 	3.09	 
	“Paying Agent”
	 	 	2.05	 
	“Registrar”
	 	 	2.05	 
	“Required Currency”
	 	 	6.10	 
	“Successor”
	 	 	5.01	 






     SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture (and if the Indenture is not qualified under the TIA at that time, as if
it were so qualified unless otherwise provided). The following TIA terms used in this Indenture
have the following meanings:



“Commission” means the SEC.

“indenture securities” means the Securities.

“indenture security holder” means a Holder.

“indenture to be qualified” means this Indenture.

“indenture trustee” or “institutional trustee”
means the Trustee.

“obligor” on the indenture securities means the Company, any Guarantor or any other obligor on
the Securities.



     All terms used in this Indenture that are defined by the TIA, defined by a TIA reference to
another statute or defined by an SEC rule under the TIA have the meanings so assigned to them.



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




	 	(1)  	a term has the meaning assigned to it;
	 
	 	(2)  	an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
	 
	 	(3)  	“or” is not exclusive;
	 
	 	(4)  	words in the singular include the plural, and in the
plural include the singular;
	 
	 	(5)  	provisions apply to successive events and transactions; and
	 
	 	(6)  	all references in this instrument to Articles and
Sections are references to the corresponding Articles and Sections in and
of this instrument.













 





9


ARTICLE II




The Securities




     SECTION 2.01. 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 established in or pursuant
to a Board Resolution of the Company, and set forth, or determined in the manner provided, in an
Officers’ Certificate of the Company or in a Company Order, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any series:




     (1) the title of the Securities of the series, including CUSIP Numbers (which shall
distinguish the Securities of the series from the Securities of all            other series);




     (2) if there is to be a limit, the limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09,
2.12, 2.17, 3.07 or 9.05 and except for any Securities which, pursuant to Section 2.04 or
2.17, are deemed never to have been authenticated and delivered hereunder);
provided, however, that unless otherwise provided in the terms of the series, the
authorized aggregate principal amount of such series may be increased before or after the
issuance of any Securities of the series by a Board Resolution (or action pursuant to a
Board Resolution) to such effect;




     (3) whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in permanent global
form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests
in any such Global Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global Security or Securities of
such series;




     (4) the manner in which any interest payable on a temporary Global Security on any
Interest Payment Date will be paid if other than in the manner provided in Section 2.14;




     (5) the date or dates on which the principal of and premium (if any) on the Securities
of the series is payable or the method of determination thereof;




     (6) the rate or rates, or the method of determination thereof, at which the Securities
of the series shall bear interest, if any, whether and under what











 





10


circumstances Additional Amounts with respect to such Securities shall be payable, the
date or dates from which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the record date for the interest payable on any
Securities on any Interest Payment Date, or if other than provided herein, the Person to
whom any interest on Securities of the series shall be payable;




     (7) the place or places where, subject to the provisions of Section 4.02, the
principal of, premium (if any) and interest on and any Additional Amounts with respect to
the Securities of the series shall be payable;




     (8) the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company must exercise any such
option, if different from those set forth herein;




     (9) the obligation, if any, of the Company to redeem, purchase or repay Securities of
the series pursuant to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at 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;




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




     (11) if other than Dollars, the currency or currencies (including composite
currencies) or the form, including equity securities, other debt securities (including
Securities), warrants or any other securities or property of the Company, any Guarantor or
any other Person, in which payment of the principal of, premium (if any) and interest on
and any Additional Amounts with respect to the Securities of the series shall be payable;




     (12) if the principal of, premium (if any) or interest on or any Additional Amounts
with respect to the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including composite currencies)
other than that in which the Securities are stated to be payable, the currency or
currencies (including composite currencies) in which payment of the principal of, premium
(if any) and interest on and any Additional Amounts with respect to Securities of such
series as to which such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;




     (13) if the amount of payments of principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series












 





11


may be determined with reference to any commodities, currencies or indices, values,
rates or prices or any other index or formula, the manner in which such amounts shall be
determined;




     (14) if other than the entire principal amount thereof, the portion of the principal
amount of Securities of the series that shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 6.02;




     (15) any additional means of satisfaction and discharge of this Indenture and any
additional conditions or limitations to discharge with respect to Securities of the series
and the related Guarantees pursuant to Article VIII or any modifications of or deletions
from such conditions or limitations;




     (16) any deletions or modifications of or additions to the Events of Default set forth
in Section 6.01 or covenants of the Company or any Guarantor set forth in Article IV
pertaining to the Securities of the series;




     (17) any restrictions or other provisions with respect to the transfer or exchange of
Securities of the series, which may amend, supplement, modify or supersede those contained
in this Article II;




     (18) if the Securities of the series are to be convertible into or exchangeable for
capital stock, other debt securities (including Securities), warrants, other equity
securities or any other securities or property of the Company, any Guarantor or any other
Person, at the option of the Company or the Holder or upon the occurrence of any condition
or event, the terms and conditions for such conversion or exchange;




     (19) whether the Securities of the series are to be entitled to the benefit of Section
4.03(b) (and accordingly constitute Rule 144A Securities); and




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



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 2.03) set forth, or determined in the manner provided, in the Officers’
Certificate or Company Order referred to above or in any such indenture supplemental hereto.



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











 





12


     SECTION 2.02. Denominations. The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 2.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series denominated
in Dollars shall be issuable in denominations of $1,000 and any integral multiples thereof.



     SECTION 2.03. Forms Generally. The Securities of each series shall be in fully
registered form and in substantially such form or forms (including temporary or permanent global
form) established by or pursuant to a Board Resolution of the Company or in one or more indentures
supplemental hereto. The Securities may have notations, legends or endorsements required by law,
securities exchange rule, the Company’s certificate of incorporation, bylaws or other similar
governing documents, agreements to which the Company is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the Company). A copy of the
Board Resolution establishing the form or forms of Securities of any series shall be delivered to
the Trustee at or prior to the delivery of the Company Order contemplated by Section 2.04 for the
authentication and delivery of such Securities.



     The definitive Securities of each series shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the Officers
executing such Securities, as evidenced by their execution thereof.



     The Trustee’s certificate of authentication shall be in substantially the following form:



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


	 	 	 	 	 
	 	THE BANK OF NEW YORK,

	 
	 	 	by

	 	 
	 	 	 	Authorized Signatory	 
	 	 	 
	 





     SECTION 2.04. Execution, Authentication, Delivery and Dating. Two Officers of the
Company shall sign the Securities on behalf of the Company and, with respect to the Guarantees of
the Securities, an Officer of each Guarantor shall sign the Securities on behalf of such Guarantor,
in each case by manual or facsimile signature.



     If an Officer of the Company or a Guarantor whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall be valid nevertheless.



     A Security shall not be entitled to any benefit under this Indenture or the related Guarantees
or be valid or obligatory for any purpose until authenticated by the manual signature of an
authorized signatory of the Trustee, which signature shall be











 





13


conclusive evidence that the Security has been authenticated under this Indenture.
Notwithstanding the foregoing, if any Security has been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company delivers such Security to the Trustee for
cancellation as provided in Section 2.13, together with a written statement (which need not comply
with Section 11.05 and need not be accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture or the related Guarantees.




     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 and each Guarantor to the
Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for
original issue upon a Company Order for the authentication and delivery of such Securities or
pursuant to such procedures acceptable to the Trustee as may be specified from time to time by such
Company Order. Such order shall specify the amount of the Securities to be authenticated, the date
on which the original issue of Securities is to be authenticated, the name or names of the initial
Holder or Holders and any other terms of the Securities of such series not otherwise determined.
If provided for in such procedures, such Company Order may authorize (1) authentication and
delivery of Securities of such series for original issue from time to time, with certain terms
(including, without limitation, the Maturity dates or dates, original issue date or dates and
interest rate or rates) that differ from Security to Security and (2) may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized
agent, which instructions shall be promptly confirmed in writing.



     If the form or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Section 2.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in addition to the Company Order referred to above and the
other documents required by Section 11.04), and (subject to Section 7.01) shall be fully protected
in relying upon:




     (a) an Officers’ Certificate setting forth the Board Resolution and, if applicable, an
appropriate record of any action taken pursuant thereto, as contemplated by the last
paragraph of Section 2.01; and




     (b) an Opinion of Counsel to the effect that:




     (i) the form of such Securities has been established in conformity with the
provisions of this Indenture;




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




     (iii) that, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions











 





14


specified in such Opinion of Counsel, such Securities and the related
Guarantees will constitute valid and binding obligations of the Company and the
Guarantors, respectively, enforceable against the Company and the Guarantors,
respectively, in accordance with their respective terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws in effect
from time to time affecting the rights of creditors generally, and the application
of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).



     If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers’ Certificate and Opinion of Counsel at the time of issuance of
each such Security, but such Officers’ Certificate and Opinion of Counsel shall be delivered at or
before the time of issuance of the first Security of the series to be issued.



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



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Guarantor or an Affiliate of the Company
or any Guarantor.



     Each Security shall be dated the date of its authentication.



     SECTION 2.05. Registrar and Paying Agent. The Company shall maintain an office or
agency for each series of Securities where Securities of such series may be presented for
registration of transfer or exchange (“Registrar”) and an office or agency where Securities of such
series may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the
Securities of such series and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent.



     The Company shall enter into an appropriate agency agreement with any Registrar or 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 any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the











 





15


Trustee shall act as such. The Company, any Guarantor or any Subsidiary may act as Paying
Agent or Registrar.




     The Company initially appoints the Trustee as Registrar and Paying Agent.



     SECTION 2.06. Paying Agent to Hold Money in Trust. The Company shall require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, or interest on or any Additional Amounts with respect to Securities
and will notify the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds disbursed. Upon payment
over to the Trustee and upon accounting for any funds disbursed, the Paying Agent (if other than
the Company, a Guarantor or a Subsidiary) shall have no further liability for the money. If the
Company, a Guarantor or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Each
Paying Agent shall otherwise comply with TIA Section 317(b).



     SECTION 2.07. Holder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of Holders
and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar with
respect to a series of Securities, the Company shall furnish to the Trustee at least five Business
Days before each Interest Payment Date with respect to such series of Securities, and at such other
times as the Trustee may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of such series, and the Company shall
otherwise comply with TIA Section 312(a).



     SECTION 2.08. Transfer and Exchange. Except as set forth in Section 2.17 or as may be
provided pursuant to Section 2.01:



     When Securities of any series are presented to the Registrar with the request to register the
transfer of such Securities or to exchange such Securities for an equal principal amount of
Securities of the same series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for such transactions are met; provided, however,
that the Securities presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on
which instruction the Registrar can rely.











 





16


     To permit registrations of transfers and exchanges, the Company and the Guarantors shall
execute and the Trustee shall authenticate Securities at the Registrar’s written request and
submission of the Securities or Global Securities. No service charge shall be made to a Holder for
any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than such transfer tax or similar governmental charge
payable upon exchanges pursuant to Section 2.12, 3.07 or 9.05). The Trustee shall authenticate
Securities in accordance with the provisions of Section 2.04. Notwithstanding any other provisions
of this Indenture to the contrary, the Company shall not be required to register the transfer or
exchange of (a) any Security selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Security being redeemed in part, or (b) any Security during
the period beginning 15 Business Days prior to the mailing of notice of any offer to repurchase
Securities of the series required pursuant to the terms thereof or of redemption of Securities of a
series to be redeemed and ending at the close of business on the day of mailing.



     SECTION 2.09. Replacement Securities. If any mutilated Security is surrendered to the
Trustee, or if the Holder of a Security claims that the Security has been destroyed, lost or stolen
and the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of such Security, the Company shall issue, the Guarantors shall execute and the Trustee shall
authenticate a replacement Security of the same series if the Trustee’s requirements are met. If
any such mutilated, destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
If required by the Trustee, any Guarantor or the Company, such Holder must furnish an indemnity
bond that is sufficient in the judgment of the Trustee and the Company to protect the Company, each
Guarantor, the Trustee, any Agent or any authenticating agent from any loss that any of them may
suffer if a Security is replaced. The Company and the Trustee may charge a Holder for their
expenses in replacing a Security.



     Every replacement Security is an additional obligation of the Company.



     SECTION 2.10. Outstanding Securities. The Securities outstanding at any time are all
the Securities authenticated by the Trustee except for those canceled by it, those delivered to it
for cancellation, those reductions in the interest in a Global Security effected by the Trustee
hereunder and those described in this Section 2.10 as not outstanding.



     If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.



     If the principal amount of any Security is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.











 





17


     A Security does not cease to be outstanding because the Company, a Guarantor or an Affiliate
of the Company or a Guarantor holds the Security.



     SECTION 2.11. Original Issue Discount, Foreign-Currency Denominated and Treasury
Securities. In determining whether the Holders of the required principal amount of Securities
have concurred in any direction, amendment, supplement, waiver or consent, (a) the principal amount
of an Original Issue Discount Security shall be the principal amount thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to
Section 6.02, (b) the principal amount of a Security denominated in a foreign currency shall be the
Dollar equivalent, as determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is certified for customs purposes by
the Federal Reserve Bank of New York (the “Exchange Rate”) on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent, as determined by the Company by reference to the Exchange Rate on the date of
original issuance of such Security, of the amount determined as provided in (a) above), of such
Security and (c) Securities owned by the Company, a Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, of a Guarantor or of such other obligor shall be
disregarded, except that, for the purpose of determining whether the Trustee shall be protected in
relying upon any such direction, amendment, supplement, waiver or consent, only Securities that a
Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.



     SECTION 2.12. Temporary Securities. Until definitive Securities of any series are
ready for delivery, the Company may prepare and execute, the Guarantors shall execute and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in
the form of definitive Securities, but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and execute, the
Guarantors shall execute and the Trustee shall authenticate definitive Securities in exchange for
temporary Securities. Until so exchanged, the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities.



     SECTION 2.13. Cancellation. The Company or any Guarantor at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer, exchange, payment or
redemption or for credit against any sinking fund payment. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, redemption, replacement or
cancellation or for credit against any sinking fund. Unless the Company shall direct in writing
that canceled Securities be returned to it, after written notice to the Company all canceled
Securities held by the Trustee shall be disposed of in accordance with the usual disposal
procedures of the Trustee, and the Trustee shall maintain a record of their disposal. The Company
may not issue new Securities to replace Securities that have been paid or that have been delivered
to the Trustee for cancellation.











 





18


     SECTION 2.14. Payments; Defaulted Interest. Unless otherwise provided as contemplated
by Section 2.01, interest (except defaulted 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 Persons who
are registered Holders of that Security at the close of business on the record date next preceding
such Interest Payment Date, even if such Securities are canceled after such record date and on or
before such Interest Payment Date. The Holder must surrender a Security to a Paying Agent to
collect principal payments. Unless otherwise provided with respect to the Securities of any
series, the Company will pay the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities in Dollars. Such amounts shall be payable at the offices of
the Trustee or any Paying Agent, provided that at the option of the Company, the Company may pay
such amounts (1) by wire transfer with respect to Global Securities or (2) by check payable in such
money mailed to a Holder’s registered address with respect to any Securities.



     If the Company defaults in a payment of interest on the Securities of any series, the Company
shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest on the
defaulted interest, in each case at the rate provided in the Securities of such series and in
Section 4.01. The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record date selected by the
Company, the Company (or the Trustee, in the name of and at the expense of the Company upon 20
days’ prior written notice from the Company setting forth such special record date and the interest
amount to be paid) shall mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.



     SECTION 2.15. Persons Deemed Owners. The Company, the Guarantors, the Trustee, any
Agent and any authenticating agent may treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payments of principal of, premium (if any)
or interest on or any Additional Amounts with respect to such Security and for all other purposes.
None of the Company, any Guarantor, the Trustee, any Agent or any authenticating agent shall be
affected by any notice to the contrary.



     SECTION 2.16. Computation of Interest. Except as otherwise specified as contemplated
by Section 2.01 for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.



     SECTION 2.17. Global Securities; Book-Entry Provisions. If Securities of a series are
issuable in global form as a Global Security, as contemplated by Section 2.01, then,
notwithstanding clause (10) of Section 2.01 and the provisions of Section 2.02, any such Global
Security shall represent such of the outstanding Securities of such series as shall be specified
therein and may provide that it shall represent the aggregate amount of outstanding Securities from
time to time endorsed thereon and that the aggregate amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges,
transfers or redemptions. Any endorsement of a Global Security to reflect the amount, or any











 





19


increase or decrease in the amount, of outstanding Securities represented thereby shall be
made by the Trustee (i) in such manner and upon instructions given by such Person or Persons as
shall be specified in such Security or in a Company Order to be delivered to the Trustee pursuant
to Section 2.04 or (ii) otherwise in accordance with written instructions or such other written
form of instructions as is customary for the Depositary for such Security, from such Depositary or
its nominee on behalf of any Person having a beneficial interest in such Global Security. Subject
to the provisions of Section 2.04 and, if applicable, Section 2.12, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company Order. With respect to
the Securities of any series that are represented by a Global Security, the Company and the
Guarantors authorize the execution and delivery by the Trustee of a letter of representations or
other similar agreement or instrument in the form customarily provided for by the Depositary
appointed with respect to such Global Security. Any Global Security may be deposited with the
Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian
therefor pursuant to a FAST Balance Certificate Agreement or similar agreement between the Trustee
and the Depositary. If a Company Order has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a Global Security shall be
in writing but need not comply with Section 11.05 and need not be accompanied by an Opinion of
Counsel.




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



     Notwithstanding Section 2.08, and except as otherwise provided pursuant to Section 2.01:
Transfers of a Global Security shall be limited to transfers of such Global Security in whole, but
not in part, to the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if, and only if, either (1) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary for the Global
Security and a successor











 





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Depositary is not appointed by the Company within 90 days of such notice, (2) an Event of
Default has occurred with respect to such series and is continuing and the Registrar has received a
request from the Depositary to issue Securities in lieu of all or a portion of the Global Security
(in which case the Company shall deliver Securities within 30 days of such request) or (3) the
Company determines not to have the Securities represented by a Global Security.




     In connection with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to this Section 2.17, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Security in an amount equal
to the principal amount of the beneficial interests in the Global Security to be transferred, and
the Company and the Guarantors shall execute, and the Trustee upon receipt of a Company Order for
the authentication and delivery of Securities shall authenticate and deliver, one or more
Securities of the same series of like tenor and amount.



     In connection with the transfer of all the beneficial interests in a Global Security to
beneficial owners pursuant to this Section 2.17, the Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company and the Guarantors shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interests in the Global Security, an equal aggregate principal
amount of Securities of authorized denominations.



     Neither the Company, any Guarantor nor the Trustee will have any responsibility or liability
for any aspect of the records relating to, or payments made on account of, Securities by the
Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. Neither the Company, any Guarantor nor the Trustee shall be liable for any delay
by the related Global Security Holder or the Depositary in identifying the beneficial owners, and
each such Person may conclusively rely on, and shall be protected in relying on, instructions from
such Global Security Holder or the Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Securities to be issued).



     The provisions of the last sentence of the third paragraph of Section 2.04 shall apply to any
Global Security if such Global Security was never issued and sold by the Company and the Company or
a Guarantor delivers to the Trustee the Global Security together with written instructions (which
need not comply with Section 11.05 and need not be accompanied by an Opinion of Counsel) with
regard to the cancellation or reduction in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of the third paragraph of
Section 2.04.



     Notwithstanding the provisions of Sections 2.03 and 2.14, unless otherwise specified as
contemplated by Section 2.01, payment of principal of, premium











 





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(if any) and interest on and any Additional Amounts with respect to any Global Security shall
be made to the Person or Persons specified therein.




     SECTION 2.18. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing
of any change in the “CUSIP” numbers.



ARTICLE III




Redemption




     SECTION 3.01. Applicability of Article. Securities of any series that are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any series) in accordance
with this Article III.



     SECTION 3.02. Notice to the Trustee. If the Company elects to redeem Securities of
any series pursuant to this Indenture, it shall notify the Trustee of the Redemption Date and the
principal amount of Securities of such series to be redeemed. The Company shall so notify the
Trustee at least 45 days before the Redemption Date (unless a shorter notice shall be satisfactory
to the Trustee) by delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel
stating that such redemption will comply with the provisions of this Indenture and of the
Securities of such series. Any such notice may be canceled at any time prior to the mailing of
such notice of such redemption to any Holder and shall thereupon be void and of no effect.



     SECTION 3.03. Selection of Securities To Be Redeemed. If less than all the Securities
of any series are to be redeemed (unless all of the Securities of such series of a specified tenor
are to be redeemed), the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee from the outstanding Securities of such series
(and tenor) not previously called for redemption, either pro rata, by lot or by such other method
as the Trustee shall deem fair and appropriate and that may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for Securities of that series
or any integral multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of that series or of
the principal amount of Global Securities of such series.



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











 





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



     SECTION 3.04. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at the address of such Holder
appearing in the register of Securities maintained by the Registrar.



     All notices of redemption shall identify the Securities to be redeemed and shall state:




     (1) the Redemption Date;




     (2) the Redemption Price;




     (3) that, unless the Company and the Guarantors default in making the redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Securities is to receive payment of the Redemption Price upon surrender to the Paying Agent of the
Securities redeemed;




     (4) if any Security is to be redeemed in part, the portion of the principal
amount thereof to be redeemed and that on and after the Redemption Date, upon surrender for cancellation of such Security to the Paying Agent, a new Security or
Securities in the aggregate principal amount equal to the unredeemed portion thereof will
be issued without charge to the Holder;




     (5) that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price and the name and address of the Paying Agent;




     (6) that the redemption is for a sinking or analogous fund, if such is the case; and




     (7) the CUSIP number, if any, relating to such Securities.



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s written request, by the Trustee in the name and at the
expense of the Company.



     SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption is mailed,
Securities called for redemption become due and payable on the Redemption Date and at the
Redemption Price. Upon surrender to the Paying Agent, such Securities called for redemption shall
be paid at the Redemption Price, but interest installments whose maturity is on or prior to such
Redemption Date will be payable on











 





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the relevant Interest Payment Dates to the Holders of record at the close of business on the
relevant record dates specified pursuant to Section 2.01.




     SECTION 3.06. Deposit of Redemption Price. On or prior to 10:00 a.m., New York City
time, on any Redemption Date, the Company or a Guarantor shall deposit with the Trustee or the
Paying Agent (or, if the Company or such Guarantor is acting as the Paying Agent, segregate and
hold in trust as provided in Section 2.06) an amount of money in same day funds sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on and any Additional Amounts with respect to, the Securities or portions thereof
which are to be redeemed on that date, other than Securities or portions thereof called for
redemption on that date which have been delivered by the Company or a Guarantor to the Trustee for
cancellation.



     If the Company or a Guarantor complies with the preceding paragraph, then, unless the Company
and the Guarantors default in the payment of such Redemption Price, interest on the Securities to
be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment, and the Holders of such Securities shall have no further
rights with respect to such Securities except for the right to receive the Redemption Price upon
surrender of such Securities. If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal, premium, if any, any Additional Amounts, and, to
the extent lawful, accrued interest thereon shall, until paid, bear interest from the Redemption
Date at the rate specified pursuant to Section 2.01 or provided in the Securities or, in the case
of Original Issue Discount Securities, such Securities’ yield to maturity, or to the actual payment
date.



     SECTION 3.07. Securities Redeemed or Purchased in Part. Upon surrender to the Paying
Agent of a Security to be redeemed in part, the Company and the Guarantors shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge a new
Security or Securities, of the same series and 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 that is not redeemed.



     SECTION 3.08. Purchase of Securities. Unless otherwise specified as contemplated by
Section 2.01, the Company, any Guarantor and any Affiliate of the Company or any Guarantor may,
subject to applicable law, at any time purchase or otherwise acquire Securities in the open market
or by private agreement. Any such acquisition shall not operate as or be deemed for any purpose to
be a redemption of the indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company or a Guarantor may be delivered to the Trustee and, upon such delivery, the
indebtedness represented thereby shall be deemed to be satisfied. Section 2.13 shall apply to all
Securities so delivered.



     SECTION 3.09. Mandatory and Optional Sinking Funds. The minimum amount of any sinking
fund payment provided for by the terms of Securities of any series











 





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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.” Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction as provided in
Section 3.10. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series and by this Article III.




     SECTION 3.10. Satisfaction of Sinking Fund Payments with Securities. The Company or a
Guarantor may deliver outstanding Securities of a series (other than any previously called for
redemption) and may apply as a credit Securities of a series that have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such series of Securities; provided that such
Securities have not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.



     SECTION 3.11. Redemption of Securities for Sinking Fund. Not less than 45 days prior
(unless a shorter period shall be satisfactory to the Trustee) to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate of
the Company specifying the amount of the next ensuing sinking fund payment for that series pursuant
to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivery of or by crediting
Securities of that series pursuant to Section 3.10 and will also deliver or cause to be delivered
to the Trustee any Securities to be so delivered. Failure of the Company to timely deliver or cause
to be delivered such Officers’ Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute the election of the Company (i) that the
mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit Securities of such series in
respect thereof and (ii) that the Company will make no optional sinking fund payment with respect
to such series as provided in this Section.



     If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $100,000 (or the Dollar equivalent thereof based on the
applicable Exchange Rate on the date of original issue of the applicable Securities) or a lesser
sum if the Company shall so request with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof
as aforesaid) or less and the Company makes no such request then it shall be carried over











 





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until a sum in excess of $100,000 (or the Dollar equivalent thereof as aforesaid) is
available. Not less than 30 days before each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the manner specified in
Section 3.03 and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.04. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the manner stated in Sections
3.05, 3.06 and 3.07.




ARTICLE IV




Covenants




     SECTION 4.01. Payment of Securities. The Company shall pay the principal of, premium
(if any) and interest on and any Additional Amounts with respect to the Securities of each series
on the dates and in the manner provided in the Securities of such series and in this Indenture.
Principal, premium, interest and any Additional Amounts shall be considered paid on the date due if
the Paying Agent (other than the Company, a Guarantor or a Subsidiary) holds on that date money
deposited by the Company or a Guarantor designated for and sufficient to pay all principal,
premium, interest and any Additional Amounts then due.



     The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium (if any), at a rate equal to the then applicable
interest rate on the Securities to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and any Additional Amount (without regard to any applicable grace period) at the same rate
to the extent lawful.



     SECTION 4.02. Maintenance of Office or Agency. The Company will maintain in each
Place of Payment for any series of Securities an office or agency (which may be an office of the
Trustee, the Registrar or the Paying Agent) where Securities of that series may be presented for
registration of transfer or exchange, where Securities of that series may be presented for payment
and where notices and demands to or upon the Company or a Guarantor in respect of the Securities of
that series and this Indenture may be served. Unless otherwise designated by the Company by
written notice to the Trustee and the Guarantors, such office or agency shall be the office of the
Trustee in The City of New York, which on the date hereof is located at 101 Barclay Street, Floor
8W, New York, New York 10286. The Company will give prompt written notice to the Trustee and the
Guarantors 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 and the Guarantors with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such











 





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designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the location of
any such other office or agency.




     SECTION 4.03. SEC Reports; Financial Statements. (a) If the Company or a Guarantor
is subject to the requirements of Section 13 or 15(d) of the Exchange Act, the Company or such
Guarantor, as the case may be, shall file with the Trustee, within 15 days after it files the same
with the SEC, copies of the annual reports and the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe)
that the Company or such Guarantor is required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. If this Indenture is qualified under the TIA, but not otherwise, the Company
and the Guarantors shall also comply with the provisions of TIA Section 314(a). Delivery of such
reports, information and documents to the Trustee shall be for informational purposes only, and the
Trustee’s receipt thereof shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates or certificates delivered pursuant to Section 4.04).



     (a) If neither the Company nor any Guarantor is subject to the requirements of Section 13 or
15(d) of the Exchange Act, the Company and the Guarantors shall furnish to all Holders of Rule 144A
Securities and prospective purchasers of Rule 144A Securities designated by the Holders of Rule
144A Securities, promptly upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) promulgated under the Securities Act of 1933, as amended.



     SECTION 4.04. Compliance Certificate. (a) Each of the Company and the Guarantors
shall deliver to the Trustee, within 120 days after the end of each fiscal year, a statement signed
by an Officer of the Company or such Guarantor, as the case may be, which need not constitute an
Officers’ Certificate, complying with TIA Section 314(a)(4) and stating that in the course of
performance by the signing Officer of his duties as such Officer of the Company or such Guarantor,
as the case may be, he would normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company or such Guarantor, as the case may be, of its obligations under this
Indenture, and further stating that to the best of his knowledge the Company or such Guarantor, as
the case may be, has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may have knowledge and what
action the Company or such Guarantor, as the case may be, is taking or proposes to take with
respect thereto).



     (b) The Company or any Guarantor shall, so long as Securities of any series are outstanding,
deliver to the Trustee, forthwith upon any Officer of the Company











 





27


or such Guarantor, as the case may be, becoming aware of any Default or Event of Default under
this Indenture, an Officers’ Certificate specifying such Default or Event of Default and what
action the Company or such Guarantor, as the case may be, is taking or proposes to take with
respect thereto.




     SECTION 4.05. Corporate Existence. Subject to Article V, each of the Company and the
Guarantors shall do or cause to be done all things necessary to preserve and keep in full force and
effect its existence.



     SECTION 4.06. Waiver of Stay, Extension or Usury Laws. Each of the Company and the
Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive it from paying all or
any portion of the principal of or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so) each of the Company
and the Guarantors hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



     SECTION 4.07. Additional Amounts. If the Securities of a series expressly provide for
the payment of Additional Amounts, the Company will pay to the Holder of any Security of such
series Additional Amounts as expressly provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or the net proceeds received from the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section 4.07 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of
this Section 4.07 and express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof
where such express mention is not made.



     SECTION 4.08. Limitation on Liens. The Company and each Guarantor will not, and will
not permit any of their Subsidiaries to, create, incur, or permit to exist, any Lien on any of
their respective properties or assets, whether now owned or hereafter acquired, or upon any income
or profits therefrom, in order to secure any Indebtedness of either of the Company or a Guarantor,
without effectively providing that the Securities shall be equally and ratably secured until such
time as such Indebtedness is no longer secured by such Lien, except: (i) Liens existing as of the
date of this Indenture; (ii) Liens granted after the date of this Indenture on any assets or
properties of the Company or a Guarantor or any of their Subsidiaries securing Indebtedness of the
Company or a Guarantor created in favor of the Holders of the Securities; (iii) Liens securing
Indebtedness of the Company or a Guarantor which is incurred to extend, renew or refinance
Indebtedness which is secured by Liens permitted to be incurred under this











 





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Indenture; provided that such Liens do not extend to or cover any property or assets of the
Company or a Guarantor or any of their Subsidiaries other than the property or assets securing the
Indebtedness being refinanced and that the principal amount of such Indebtedness does not exceed
the principal amount of the Indebtedness being refinanced; (iv) Permitted Liens; and (v) Liens
created in substitution of or as replacements for any Liens permitted by the preceding clauses (i)
through (iv), provided that, based on a good faith determination of an officer of the Company and
each Guarantor, the property or asset encumbered under any such substitute or replacement Lien is
substantially similar in nature to the property or asset encumbered by the otherwise permitted Lien
which is being replaced.




     Notwithstanding the foregoing, the Company and the Guarantors and any Subsidiary of any of
them may, without securing the Securities, create, incur or permit to exist Liens which would
otherwise be subject to the restrictions set forth in the preceding paragraph, if after giving
effect thereto and at the time of determination, Exempted Debt does not exceed the greater of (i)
15% of Consolidated Net Assets or (ii) $250,000,000.



     SECTION 4.09. Limitation on Sale/Leaseback Transactions. The Company and Guarantors
will not, and will not permit any of their Subsidiaries to, enter into any sale and lease-back
transaction for the sale and leasing back of any property or asset, whether now owned or hereafter
acquired, of the Company or a Guarantor or any of their Subsidiaries (except such transactions (i)
entered into prior to the date of this Indenture or (ii) for the sale and leasing back of any
property or asset by a Subsidiary of the Company or a Guarantor to the Company or a Guarantor or
(iii) involving leases for less than three years or (iv) in which the lease for the property or
asset is entered into within 120 days after the later of the date of acquisition, completion of
construction or commencement or full operations of such property or asset) unless (a) the Company
or a Guarantor or such Subsidiary would be entitled under the Limitation on Liens covenant above to
create, incur or permit to exist a Lien on the assets to be leased in an amount at least equal to
the Attributable Liens in respect of such transaction without equally and ratably securing the
Securities, or (b) the proceeds of the sale of the assets to be leased are at least equal to their
fair market value and the proceeds are applied to the purchase or acquisition (or in the case of
real property, the construction) of assets or to the repayment of Indebtedness of the Company or a
Guarantor or a Subsidiary of the Company or a Guarantor which by its terms matures not earlier than
one year after the date of such repayment.



     SECTION 4.10. Calculation of Original Issue Discount. The Company shall file with the
Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on outstanding
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 Internal Revenue Code of 1986, as amended
from time to time.











 





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ARTICLE V




Successors




     SECTION 5.01. Limitations on Mergers and Consolidations. Neither the Company nor any
Guarantor shall, in any transaction or series of transactions, consolidate with or merge into any
Person, or sell, lease, convey, transfer or otherwise dispose of all or substantially all of its
assets to any Person (other than a consolidation or merger of the Company and a Guarantor or of the
Guarantors or a sale, lease, conveyance, transfer or other disposition of all or substantially all
of the assets of the Company to a Guarantor or of a Guarantor to the Company or the other
Guarantor), unless:




     (1) either (a) the Company or such Guarantor, as the case may be, shall be the
continuing Person or (b) the Person (if other than the Company or such Guarantor) formed by
such consolidation or into which the Company or such Guarantor is merged, or to which such
sale, lease, conveyance, transfer or other disposition shall be made (collectively, the
“Successor”), is organized and validly existing under the laws of the United States, any
political subdivision thereof or any State thereof or the District of Columbia, and
expressly assumes by supplemental indenture, in the case of the Company, the due and
punctual payment of the principal of, premium (if any) and interest on and any Additional
Amounts with respect to all the Securities and the performance of the Company’s covenants
and obligations under this Indenture and the Securities, or, in the case of such Guarantor,
the performance of the Guarantee and such Guarantor’s covenants and obligations under this
Indenture and the Securities;




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




     (3) the Company or such Guarantor, as the case may be, delivers to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that the transaction and such
supplemental indenture comply with this Indenture.



     SECTION 5.02. Successor Person Substituted. Upon any consolidation or merger of the
Company or a Guarantor, as the case may be, or any sale, lease, conveyance, transfer or other
disposition of all or substantially all of the assets of the Company or such Guarantor in
accordance with Section 5.01, the Successor formed by such consolidation or into or with which the
Company or such Guarantor is merged or to which such sale, lease, conveyance, transfer or other
disposition is made shall succeed to, and be substituted for, and may exercise every right and
power of the Company or such Guarantor, as the case may be, under this Indenture and the Securities
with the same effect as if such Successor had been named as the Company or such Guarantor, as the
case may be, herein and the predecessor Company or Guarantor, in the case of a sale, conveyance,
transfer or other disposition, shall be released from all obligations under this Indenture, the
Securities and, in the case of a Guarantor, the Guarantee.











 





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ARTICLE VI




Defaults And Remedies




     SECTION 6.01. Events of Default. Unless either inapplicable to a particular series or
specifically deleted or modified in or pursuant to the supplemental indenture or Board Resolution
establishing such series of Securities or in the form of Security for such series, an “Event of
Default,” wherever used herein with respect to Securities of any series, occurs if:




     (1) there is a default in the payment of interest on or any Additional Amounts with
respect to any Security of that series when the same becomes due and payable and such
default continues for a period of 30 days;




     (2) there is a default in the payment of (A) the principal of any Security of that
series at its Maturity or (B) premium (if any) on any Security of that series when the same
becomes due and payable;




     (3) there is a default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series, and such default continues for a period of 30 days;




     (4) the Company or any Guarantor fails to comply with any of its other covenants or
agreements in, or provisions of, the Securities of such series or this Indenture (other
than an agreement, covenant or provision that has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other than that series) which
shall not have been remedied within the specified period after written notice, as specified
in the last paragraph of this Section 6.01;




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




     (A) commences a voluntary case,




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




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




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




     (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that remains unstayed and in effect for 90 days and that:




     (A) is for relief against the Company or any Guarantor as debtor in an
involuntary case,











 





31


     (B) appoints a Bankruptcy Custodian of the Company or any Guarantor or a
Bankruptcy Custodian for all or substantially all of the property of the Company or
any Guarantor, or




     (C) orders the liquidation of the Company or any Guarantor; or




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



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



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



     When a Default is cured, it ceases.



     Notwithstanding the foregoing provisions of this Section 6.01, if the principal of, premium
(if any) or interest on or Additional Amounts with respect to any Security is payable in a currency
or currencies (including a composite currency) other than Dollars and such currency or currencies
are not available to the Company or a Guarantor for making payment thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company or such Guarantor (a
“Conversion Event”), each of the Company and the Guarantors will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an amount equal to
the Dollar equivalent of the amount payable in such other currency, as determined by the Company or
the Guarantor making such payment, as the case may be, by reference to the Exchange Rate 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 6.01, any
payment made under such circumstances in Dollars where the required payment is in a currency other
than Dollars will not constitute an Event of Default under this Indenture.



     Promptly after the occurrence of a Conversion Event, the Company or a Guarantor shall give
written notice thereof to the Trustee; and the Trustee, promptly after receipt of such notice,
shall give notice thereof in the manner provided in Section 11.02 to the Holders. Promptly after
the making of any payment in Dollars as a result of a Conversion Event, the Company or the
Guarantor making such payment, as the case may be, shall give notice in the manner provided in
Section 11.02 to the Holders, setting forth the applicable Exchange Rate and describing the
calculation of such payments.



     A Default under clause (4) or (7) of this Section 6.01 is not an Event of Default until the
Trustee notifies the Company and the Guarantors, or the Holders of at least 25% in principal amount
of the then outstanding Securities of the series affected by such Default (or, in the case of a
Default under clause (4) of this Section 6.01, if











 





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outstanding Securities of other series are affected by such Default, then at least 25% in
principal amount of the then outstanding Securities so affected) notify the Company, the Guarantors
and the Trustee, of the Default, and the Company or the applicable Guarantor, as the case may be,
fails to cure the Default within 90 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a “Notice of Default.”




     SECTION 6.02. Acceleration. If an Event of Default with respect to any Securities of
any series at the time outstanding (other than an Event of Default specified in clause (5) or (6)
of Section 6.01) occurs and is continuing, the Trustee by notice to the Company and the Guarantors,
or the Holders of at least 25% in principal amount of the then outstanding Securities of the series
affected by such Event of Default (or, in the case of an Event of Default described in clause (4)
of Section 6.01, if outstanding Securities of other series are affected by such Event of Default,
then at least 25% in principal amount of the then outstanding Securities so affected) by notice to
the Company, the Guarantors and the Trustee, may declare the principal of (or, if any such
Securities are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) and all accrued and unpaid interest on all then outstanding
Securities of such series or of all series, as the case may be, to be due and payable. Upon any
such declaration, the amounts due and payable on the Securities shall be due and payable
immediately. If an Event of Default specified in clause (5) or (6) of Section 6.01 hereof occurs,
such amounts shall ipso facto become and be immediately due and payable without any declaration,
notice or other act on the part of the Trustee or any Holder. The Holders of a majority in
principal amount of the then outstanding Securities of the series affected by such Event of Default
or all series, as the case may be, by written notice to the Trustee may rescind an acceleration and
its consequences (other than nonpayment of principal of or premium or interest on or any Additional
Amounts with respect to the Securities) if the rescission would not conflict with any judgment or
decree and if all existing Events of Default with respect to Securities of that series (or of all
series, as the case may be) have been cured or waived, except nonpayment of principal, premium,
interest or any Additional Amounts that has become due solely because of the acceleration.



     SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of, or premium, if any,
or interest on the Securities or to enforce the performance of any provision of the Securities or
this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.



     SECTION 6.04. Waiver of Defaults. Subject to Sections 6.07 and 9.02, the Holders of a
majority in principal amount of the then outstanding Securities of any series or of all series
(acting as one class) by notice to the Trustee may waive an existing











 





33


or past Default or Event of Default with respect to such series or all series, as the case may
be, and its consequences (including waivers obtained in connection with a tender offer or exchange
offer for Securities of such series or all series or a solicitation of consents in respect of
Securities of such series or all series, provided that in each case such offer or solicitation is
made to all Holders of then outstanding Securities of such series or all series (but the terms of
such offer or solicitation may vary from series to series)), except (1) a continuing Default or
Event of Default in the payment of the principal of, or premium, if any, or interest on or any
Additional Amounts with respect to any Security or (2) a continued Default in respect of a
provision that under Section 9.02 cannot be amended or supplemented without the consent of each
Holder affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.




     SECTION 6.05. Control by Majority. With respect to Securities of any series, the
Holders of a majority in principal amount of the then outstanding Securities of such series may
direct in writing the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it relating to or arising under an
Event of Default described in clause (1), (2), (3) or (7) of Section 6.01, and with respect to all
Securities, the Holders of a majority in principal amount of all the then outstanding Securities
affected may direct in writing the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on it not relating to or
arising under such an Event of Default. However, the Trustee may refuse to follow any direction
that conflicts with applicable law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders, or that may involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification satisfactory to it in its sole discretion from Holders
directing the Trustee against all losses and expenses caused by taking or not taking such action.



     SECTION 6.06. Limitations on Suits. Subject to Section 6.07 hereof, a Holder of a
Security of any series may pursue a remedy with respect to this Indenture or the Securities of such
series only if:




     (1) the Holder gives to the Trustee written notice of a continuing Event of Default
with respect to such series;




     (2) the Holders of at least 25% in principal amount of the then outstanding Securities
of such series make a written request to the Trustee to pursue the remedy;




     (3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;











 





34


     (4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and




     (5) during such 60-day period the Holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with the
request.



     A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.



     SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security to receive payment of principal
of and premium, if any, and interest on and any Additional Amounts with respect to the Security, on
or after the respective due dates expressed in the Security, or to bring suit for the enforcement
of any such payment on or after such respective dates, is absolute and unconditional and shall not
be impaired or affected without the consent of the Holder.



     SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in clause
(1) or (2) of Section 6.01 hereof occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the Company or a Guarantor for
the amount of principal, premium (if any), interest and any Additional Amounts remaining unpaid on
the Securities of the series affected by the Event of Default, and interest on overdue principal
and premium, if any, and, to the extent lawful, interest on overdue interest, and such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.



     SECTION 6.09. Trustee May File Proofs of Claim. The Trustee is authorized to file
such proofs of claim and other papers or documents and to take such actions, including
participating as a member, voting or otherwise, of any committee of creditors, as may be necessary
or advisable to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company or a Guarantor or their
respective creditors or properties and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims and any Bankruptcy
Custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of,
any and all











 





35


distributions, dividends, money, securities and other properties which the Holders of the
Securities may be entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.




     SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this Article
VI, it shall pay out the money in the following order:




     First: to the Trustee for amounts due under Section 7.07;




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




     Third: to the Company.



     The Trustee, upon prior written notice to the Company, may fix record dates and payment dates
for any payment to Holders pursuant to this Article VI.



     To the fullest extent allowed under applicable law, if for the purpose of obtaining a judgment
against the Company or a Guarantor in any court it is necessary to convert the sum due in respect
of the principal of, premium (if any) or interest on or Additional Amounts with respect to the
Securities of any series (the “Required Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in The City of New York next
preceding that on which final judgment is given. Neither the Company, any Guarantor nor the Trustee
shall be liable for any shortfall nor shall it benefit from any windfall in payments to Holders of
Securities under this Section 6.10 caused by a change in exchange rates between the time the amount
of a judgment against it is calculated as above and the time the Trustee converts the Judgment
Currency into the Required Currency to make payments under this Section 6.10 to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by the Company and the
Guarantors on the claim or claims underlying such judgment.



     SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as a trustee, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees and











 





36


expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders
of more than 10% in principal amount of the then outstanding Securities of any series.




ARTICLE VII




Trustee




     SECTION
7.01. Duties of Trustee. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in such exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own affairs.



     (b) Except during the continuance of an Event of Default with respect to the Securities of any
series:




     (1) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of certificates or opinions specifically required by
any provision hereof to be furnished to it, the Trustee shall examine such certificates and
opinions to determine whether, on their face, they appear to conform to the
requirements of this Indenture.



     (c) The Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:




     (1) this paragraph does not limit the effect of Section 7.01(b);




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



     (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to the provisions of this Section 7.01.











 





37


     (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any loss, liability or expense.



     (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company and the Guarantors. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by law. All money
received by the Trustee shall, until applied as herein provided, be held in trust for the payment
of the principal of, premium (if any) and interest on and Additional Amounts with respect to the
Securities.



     SECTION 7.02. Rights of Trustee.



     (a) The Trustee may conclusively rely on any document (whether in original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.



     (b) Before the Trustee acts or refrains from acting, it may require instruction, an Officers’
Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such instruction, Officers’
Certificate or Opinion of Counsel. The Trustee may consult at the Company’s expense with counsel
of its selection and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.



     (c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.



     (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers conferred upon it by this
Indenture.



     (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company or any Guarantor shall be sufficient if signed by an Officer of the
Company or such Guarantor, as the case may be.



     (f) The Trustee shall not be obligated 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.



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











 





38


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



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



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



     SECTION 7.03. May Hold Securities.



     The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company, any Guarantor or any of their respective
Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11.



     SECTION 7.04. Trustee’s Disclaimer.



     The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities
or any money paid to the Company or any Guarantor or upon the Company’s or such Guarantor’s
direction under any provision hereof, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee and it shall not be responsible for any
statement or recital herein or any statement in the Securities other than its certificate of
authentication.



     SECTION 7.05. Notice of Defaults. If a Default or Event of Default with respect to
the Securities of any series occurs and is continuing and it is known to the Trustee, the Trustee
shall mail to Holders of Securities of such series a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium (if any) and interest on and Additional Amounts or any sinking fund
installment with respect to the Securities of such series, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Holders of Securities of such series.



     SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each September 15
of each year after the execution of this Indenture, the Trustee shall











 



39


mail to Holders of a series, the Guarantors and the Company a brief report dated as of such
reporting date that complies with TIA Section 313(a); provided, however, that if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the reporting date with
respect to a series, no report need be transmitted to Holders of such series. The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail all reports if and
as required by TIA Sections 313(c) and 313(d).




     A copy of each report at the time of its mailing to Holders of a series of Securities shall be
filed by the Company or a Guarantor with the SEC and each securities exchange, if any, on which the
Securities of such series are listed. The Company shall notify the Trustee if and when any series
of Securities is listed on any securities exchange.



     SECTION 7.07. Compensation and Indemnity. The Company agrees to pay to the Trustee
for its acceptance of this Indenture and services hereunder such compensation as the Company and
the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company agrees to
reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred
by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.



     Each of the Company and the Guarantors, jointly and severally, hereby agrees to indemnify the
Trustee and any predecessor Trustee against any and all loss, liability, damage, claim or expense,
including taxes (other than taxes based upon, measured by or determined by the income of the
Trustee), incurred by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture, except as set forth in the next following paragraph. The Trustee
shall notify the Company and the Guarantors promptly of any claim of which a Responsible Officer
has received written notice for which it may seek indemnity. 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.



     The Company shall not be obligated to reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustee’s own negligence or bad faith.



     To secure the payment obligations of the Company in this Section 7.07, the Trustee shall have
a lien prior to the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts
with respect to Securities of any series. Such lien and the Company’s obligations under this
Section 7.07 shall survive the satisfaction and discharge of this Indenture.












 




 40


     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(5) or (6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.



     SECTION 7.08. Replacement of Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.



     The Trustee may resign and be discharged at any time with respect to the Securities of one or
more series by so notifying the Company and the Guarantors. The Holders of a majority in principal
amount of the then outstanding Securities of any series may remove the Trustee with respect to the
Securities of such series by so notifying the Trustee, the Company and the Guarantors. The Company
may remove the Trustee if:




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




     (2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;




     (3) a Bankruptcy Custodian or public officer takes charge of the Trustee or its
property; or




     (4) the Trustee otherwise becomes incapable of acting. If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, with respect to the
Securities of one or more series, the Company shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). Within one year after the successor Trustee with
respect to the Securities of any series takes office, the Holders of a majority in
principal amount of the Securities of such series then outstanding may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.



     If a successor Trustee with respect to the Securities of any series does not take office
within 30 days after the retiring or removed Trustee resigns or is removed, the retiring or removed
Trustee (at the expense of the Company), the Company, any Guarantor or the Holders of at least 10%
in principal amount of the then outstanding Securities of such series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of
such series.



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












 




 41


     In case of the appointment of a successor Trustee with respect to all Securities, each such successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee, to
the Company and to the Guarantors. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights, powers and duties of
the retiring Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.



     In case of the appointment of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the Guarantors, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more (but not all) series shall execute and
deliver an indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall confirm that all the rights, powers and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee shall have all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates. On request of the Company or any successor
Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such
retiring Trustee as Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates. Such retiring Trustee shall, however, have the
right to deduct its unpaid fees and expenses, including attorneys’ fees.



     Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.08, the
obligations of the Company under Section 7.07 shall continue for the benefit of the retiring
Trustee or Trustees.



     SECTION 7.09. Successor Trustee by Merger, etc. Subject to Section 7.10, if the
Trustee consolidates, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation, the successor corporation without any further act
shall be the successor Trustee; provided, however, that in the case of a transfer of all or
substantially all of its corporate trust business to another corporation, the transferee
corporation expressly assumes all of the Trustee’s liabilities hereunder.












 




 42


     In case any Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so authenticated; 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 to the 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.



     SECTION 7.10. Eligibility; Disqualification. There shall at all times be a
Trustee hereunder which shall be a corporation or banking association organized and doing business
under the laws of the United States, any State thereof or the District of Columbia and authorized
under such laws to exercise corporate trust power, shall be subject to supervision or examination
by Federal or State (or the District of Columbia) authority and shall have, or be a subsidiary of a
bank or bank holding company having, a combined capital and surplus of at least $50 million as set
forth in its most recent published annual report of condition.



     The Indenture shall always have a Trustee who satisfies the requirements of TIA Sections
310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions
of TIA Section 310(b) during the period of time required by this Indenture. Nothing in this
Indenture shall prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).



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



ARTICLE VIII




Discharge of Indenture




     SECTION 8.01. Termination of the Company’s and the Guarantors’ Obligations. This
Indenture shall cease to be of further effect with respect to the Securities of a series (except
that the Company’s obligations under Section 7.07, the Trustee’s and Paying Agent’s obligations
under Section 8.03 and the rights, powers, protections and privileges accorded the Trustee under
Article VII shall survive), and the Trustee and the Guarantors, on demand of the Company, shall
execute proper instruments acknowledging the satisfaction and discharge of this Indenture with
respect to the Securities of such series, when:




     (1) either:




     (A) all outstanding Securities of such series theretofore authenticated and
issued (other than destroyed, lost or stolen Securities












 




 43


     that have been replaced or paid) have been delivered to the Trustee for
cancellation; or




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




     (i) have become due and
payable, or




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




     (iii) are to be called for
redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company, and, in the case of clause (i) or (ii) above, the
Company or a Guarantor has irrevocably deposited or caused to
be deposited with the Trustee as funds (immediately available
to the Holders in the case of clause (i)) in trust for such
purpose (x) cash in an amount, or (y) Government Obligations,
maturing as to principal and interest at such times and in
such amounts as will ensure the availability of cash in an
amount or (z) a combination thereof, which will be
sufficient, in the opinion (in the case of clauses (y) and
(z)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire
indebtedness on the Securities of such series for principal
and interest to the date of such deposit (in the case of
Securities which have become due and payable) or for
principal, premium, if any, and interest to the Stated
Maturity or Redemption Date, as the case may be; or




     (C) the Company and the Guarantors have properly fulfilled such other
means of satisfaction and discharge as is specified, as contemplated by
Section 2.01, to be applicable to the Securities of such series;




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




     (3) the Company has delivered to the Trustee an Officers’ Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, together with an Opinion of Counsel to
the same effect.



     (b) Unless this Section 8.01(b) is specified as not being applicable to Securities of a
series as contemplated by Section 2.01, the Company may, at its option,












 




44



terminate certain of its and the Guarantors’ respective obligations under this Indenture
(“covenant defeasance”) with respect to the Securities of a series if:




     (1) the Company or a Guarantor has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for and dedicated solely to the benefit of the
Holders of Securities of such series, (i) money in the currency in which payment of the
Securities of such series is to be made in an amount, or Government Obligations with
respect to such series, maturing as to principal and interest at such times and in such
amounts as will ensure the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a combination thereof, that
is sufficient, in the opinion (in the case of clauses (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest
on all Securities of such series on each date that such principal, premium (if any) or
interest is due and payable and (at the Stated Maturity thereof or upon redemption as
provided in Section 8.01(e)) to pay all other sums payable by it hereunder; provided that
the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds
of such Government Obligations to the payment of said principal, premium (if any) and
interest with respect to the Securities of such series as the same shall become due;




     (2) the Company has delivered to the Trustee an Officers’ Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, and an Opinion of Counsel to the same
effect;




     (3) no Default or Event of Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;




     (4) the Company shall have delivered to the Trustee an Opinion of Counsel from a
nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that
the Holders 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 8.01(b) and will be
subject to U.S. Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such option had not been exercised;




     (5) the Company and the Guarantors have complied with any additional conditions
specified pursuant to Section 2.01 to be applicable to the discharge of Securities of such
series pursuant to this Section 8.01; and




     (6) such deposit and discharge shall not cause the Trustee to have a conflicting
interest as defined in TIA Section 310(b).












 




 45


     In such event, this Indenture shall cease to be of further effect (except as set forth in this
paragraph), and the Trustee and the Guarantors, on demand of the Company, shall execute proper
instruments acknowledging satisfaction and discharge under this Indenture. However, the Company’s
and the Guarantors’ respective obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02,
7.07, 7.08, 8.04 and 10.01, the Trustee’s and Paying Agent’s obligations in Section 8.03 and the
rights, powers, protections and privileges accorded the Trustee under Article VII shall survive
such satisfaction and discharge until all Securities of such series are no longer outstanding.
Thereafter, only the Company’s obligations in Section 7.07 and the Trustee’s and Paying Agent’s
obligations in Section 8.03 shall survive with respect to Securities of such series.



     After such irrevocable deposit made pursuant to this Section 8.01(b) and satisfaction of the
other conditions set forth herein, the Trustee upon request shall acknowledge in writing the
discharge of the Company’s and the Guarantors’ obligations under this Indenture with respect to the
Securities of such series except for those surviving obligations specified above.



     In order to have money available on a payment date to pay principal of or premium (if any) or
interest on the Securities, the Government Obligations shall be payable as to principal or interest
on or before such payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the Company’s option.



     (c) If the Company and the Guarantors have previously complied or are concurrently complying
with Section 8.01(b) (other than any additional conditions specified pursuant to Section 2.01 that
are expressly applicable only to covenant defeasance) with respect to Securities of a series, then,
unless this Section 8.01(c) is specified as not being applicable to Securities of such series as
contemplated by Section 2.01, the Company may elect that its and the Guarantors’ respective
obligations to make payments with respect to Securities of such series be discharged (“legal
defeasance”), if:




     (1) no Default or Event of Default under clauses (5) and (6) of Section 6.01 hereof
shall have occurred at any time during the period ending on the 91st day after the date of
deposit contemplated by Section 8.01(b) (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);




     (2) unless otherwise specified with respect to Securities of such series as
contemplated by Section 2.01, the Company has delivered to the Trustee an Opinion of
Counsel from a nationally recognized counsel acceptable to the Trustee to the effect
referred to in Section 8.01(b)(4) with respect to such legal defeasance, which opinion is
based on (i) a private ruling of the Internal Revenue Service addressed to the Company,
(ii) a published ruling of the Internal Revenue Service pertaining to a comparable form of
transaction or (iii) a change in the applicable federal income tax law (including
regulations) after the date of this Indenture;












 




 46



     (3) the Company and the Guarantors have complied with any other conditions specified
pursuant to Section 2.01 to be applicable to the legal defeasance of Securities of such
series pursuant to this Section 8.01(c); and




     (4) the Company has delivered to the Trustee a Company Request requesting such legal
defeasance of the Securities of such series and an Officers’ Certificate stating that all
conditions precedent with respect to such legal defeasance of the Securities of such series
have been complied with, together with an Opinion of Counsel to the same effect.



     In such event, the Company and the Guarantors will be discharged from their respective
obligations under this Indenture and the Securities of such series to pay principal of, premium (if
any) and interest on, and any Additional Amounts with respect to, Securities of such series, the
Company’s and the Guarantors’ respective obligations under Sections 4.01, 4.02 and 10.01
shall terminate with respect to such Securities, and the entire indebtedness of the Company
evidenced by such Securities and of the Guarantors evidenced by the related Guarantees shall be
deemed paid and discharged.



     (d) If and to the extent additional or alternative means of satisfaction, discharge or
defeasance of Securities of a series are specified to be applicable to such series as contemplated
by Section 2.01, each of the Company and the Guarantors may terminate any or all of its obligations
under this Indenture with respect to Securities of a series and any or all of its obligations under
the Securities of such series if it fulfills such other means of satisfaction and discharge as may
be so specified, as contemplated by Section 2.01, to be applicable to the Securities of such
series.



     (e) If Securities of any series subject to subsections (a), (b), (c) or (d) of this Section
8.01 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 provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the Company shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.



     SECTION 8.02. Application of Trust Money. The Trustee or a trustee satisfactory to
the Trustee and the Company shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01 hereof. It shall apply the deposited money and the money from Government
Obligations through the Paying Agent and in accordance with this Indenture to the payment of
principal of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of the series with respect to which the deposit was made.



     SECTION 8.03. Repayment to Company or Guarantor. The Trustee and the Paying Agent
shall promptly pay to the Company or any Guarantor any excess money or Government Obligations (or
proceeds therefrom) held by them at any time upon the written request of the Company.












 




 47


     Subject to the requirements of any applicable abandoned property laws, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by them for the payment
of principal, premium (if any), interest or any Additional Amounts that remain unclaimed for two
years after the date upon which such payment shall have become due. After payment to the Company,
Holders entitled to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability of the Trustee and
the Paying Agent with respect to such money shall cease.



     SECTION 8.04. Reinstatement. If the Trustee or the Paying Agent is unable to apply
any money or Government Obligations deposited with respect to Securities of any series in
accordance with Section 8.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company and the Guarantors under this
Indenture with respect to the Securities of such series and under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or the Paying Agent is permitted to apply all such money or Government
Obligations in accordance with Section 8.01; provided, however, that if the Company or any
Guarantor has made any payment of principal of, premium (if any) or interest on or any Additional
Amounts with respect to any Securities because of the reinstatement of its obligations, the Company
or such Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or Government Obligations held by the Trustee or
the Paying Agent.



ARTICLE IX




Supplemental Indentures And Amendments




     SECTION 9.01. Without Consent of Holders. The Company, the Guarantors and the Trustee
may amend or supplement this Indenture or the Securities or waive any provision hereof or thereof
without the consent of any Holder:




     (1) to cure any ambiguity, omission, defect or inconsistency;




     (2) to comply with Section 5.01;




     (3) to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to provide for the issuance of bearer Securities (with or
without coupons);




     (4) to provide any security for, or to add any guarantees of or additional obligors
on, any series of Securities or the related Guarantees;




     (5) to comply with any requirement in order to effect or maintain the qualification of
this Indenture under the TIA;












 




 48


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




     (7) to add any additional Events of Default with respect to all or any series of the
Securities (and, if any Event of Default is applicable to less than all series of
Securities, specifying the series to which such Event of Default is applicable);




     (8) 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 amendment or supplemental
indenture that is adversely affected in any material respect by such change in or
elimination of such provision;




     (9) to establish the form or terms of Securities of any series as permitted by Section
2.01;




     (10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Section 8.01; provided, however, that any such action shall not adversely
affect the interest of the Holders of Securities of such series or any other series of
Securities in any material respect; or




     (11) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 7.08.



     Upon the request of the Company, accompanied by a Board Resolution, and upon receipt by the
Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06,
join with the Company and the Guarantors in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and make any further appropriate agreements and
stipulations that may be therein contained.



     SECTION 9.02. With Consent of Holders. Except as provided below in this Section 9.02,
the Company, the Guarantors and the Trustee may amend or supplement this Indenture with the written
consent (including consents obtained in connection with a tender offer or exchange offer for
Securities of any one or more series or all series or a solicitation of consents in respect of
Securities of any one or more series or all series, provided that in each case such offer or
solicitation is made to all Holders of then outstanding Securities of each such series (but the
terms of such offer or solicitation may vary from series to series)) of the Holders of at least a
majority in principal amount of the then outstanding Securities of all series affected by such
amendment or supplement (acting as one class).












 




49


     Upon the request of the Company, accompanied by a Board Resolution, and upon the filing
with the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06,
join with the Company and the Guarantors in the execution of such amendment or supplemental
indenture.



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



     The Holders of a majority in principal amount of the then outstanding Securities of one or
more series or of all series may waive compliance in a particular instance by the Company or
any Guarantor with any provision of this Indenture with respect to Securities of such series
(including waivers obtained in connection with a tender offer or exchange offer for Securities of
such series or a solicitation of consents in respect of Securities of such series, provided that in
each case such offer or solicitation is made to all Holders of then outstanding Securities of such
series (but the terms of such offer or solicitation may vary from series to series)).



     However, without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not:




     (1) reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver;




     (2) reduce the rate of or change the time for payment of interest,
including default interest, on any Security;




     (3) reduce the principal of, any premium on or any mandatory sinking fund payment
with respect to, or change the Stated Maturity of, any Security 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 6.02;




     (4) reduce the premium, if any, payable upon the redemption of any Security or
change the time at which any Security may or shall be redeemed;




     (5) change any obligation of the Company or any Guarantor to pay
Additional Amounts with respect to any Security;




     (6) change the coin or currency or currencies (including composite currencies) in
which any Security or any premium, interest or Additional Amounts with respect
thereto are payable;




     (7) impair the right to institute suit for the enforcement of any payment of
principal of, premium (if any) or interest on or any Additional Amounts with respect
to any Security pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;












 




50


     (8) make any change in the percentage of principal amount of Securities necessary
to waive compliance with certain provisions of this Indenture pursuant to Section
6.04 or 6.07 or make any change in this sentence of Section 9.02; or




     (9) waive a continuing Default or Event of Default in the payment of principal
of, premium (if any) or interest on or Additional Amounts with respect to the
Securities.



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



     The right of any Holder to participate in any consent required or sought pursuant to any
provision of this Indenture (and the obligation of the Company or any Guarantor to obtain any such
consent otherwise required from such Holder) may be subject to the requirement that such Holder
shall have been the Holder of record of any Securities with respect to which such consent is
required or sought as of a date identified by the Company or such Guarantor in a notice furnished
to Holders in accordance with the terms of this Indenture.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders of each Security affected thereby a notice briefly describing the
amendment, supplement or waiver. 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 amendment,
supplement or waiver.



     SECTION 9.03. Compliance with Trust Indenture Act. Every amendment or supplement to
this Indenture or the Securities shall comply in form and substance with the TIA as then in effect.



     SECTION 9.04. Revocation and Effect of Consents. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his or her Security or
portion of a Security if the Trustee receives written notice of revocation before a date and time
therefor identified by the Company or any Guarantor in a notice furnished to such Holder in
accordance with the terms of this Indenture or, if no such date and time shall be identified, the
date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every Holder.












 




51


     The Company or any Guarantor may, but shall not be obligated to, fix a record date (which need
not comply with TIA Section 316(c)) for the purpose of determining the Holders entitled to consent
to any amendment, supplement or waiver or to take any other action under this Indenture. If a
record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph,
those Persons who were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke
any consent previously given, whether or not such Persons continue to be Holders after such record
date. No consent shall be valid or effective for more than 90 days after such record date unless
consents from Holders of the principal amount of Securities required hereunder for such amendment
or waiver to be effective shall have also been given and not revoked within such 90-day period.



     After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it is of the type described in any of clauses (1) through (9) of Section 9.02 hereof. In such
case, the amendment, supplement or waiver shall bind each Holder who has consented to it and every
subsequent Holder that evidences the same debt as the consenting Holder’s Security.



     SECTION 9.05. Notation on or Exchange of Securities. If an amendment or supplement
changes the terms of an outstanding Security, the Company may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the Security at the
request of the Company regarding the changed terms and return it to the Holder. Alternatively, if
the Company so determines, the Company in exchange for the Security shall issue, the Guarantors
shall execute and the Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not affect the validity
of such amendment or supplement.



     Securities of any series authenticated and delivered after the execution of any amendment or
supplement may, and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such amendment or supplement.



     SECTION 9.06. Trustee to Sign Amendments, etc. The Trustee shall sign any amendment
or supplement authorized pursuant to this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may,
but need not, sign it. In signing or refusing to sign such amendment or supplement, the Trustee
shall be provided with, and, subject to Section 7.01 hereof, shall be fully protected in relying
upon, an Officers’ Certificate and an Opinion of Counsel provided at the expense of the Company or
a Guarantor as conclusive evidence that such amendment or supplement is authorized or permitted by
this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon
the Company and the Guarantors in accordance with its terms.












 




52


ARTICLE X




Guarantee




     SECTION 10.01. Guarantee. Unless this Article is modified pursuant to Section 2.01 of
this Indenture for a series of Securities, each Guarantor, jointly and severally, hereby
unconditionally guarantees to each of the Trustee and to the Holders from time to time of the
Securities (a) the full and prompt payment of the principal of and any premium on any Security when
and as the same shall become due, whether at the Stated Maturity thereof, by acceleration,
redemption or otherwise, (b) the full and prompt payment of any interest on and any Additional
Amounts with respect to any Security when and as the same shall become due, subject in each case to
any applicable grace period, and (c) payment of all other obligations of the Company hereunder or
under the Securities. Each payment by a Guarantor with respect to any Security shall be paid in
the currency or currencies specified for payments on such Security as contemplated by Section 2.01
and pursuant to this Indenture. The Guarantee hereunder constitutes a guarantee of payment and not
of collection.



     The obligations of each Guarantor hereunder with respect to a series of Securities shall be
absolute and unconditional and, subject to Article VIII, shall remain in full force and effect
until the entire principal of, premium (if any) and interest on and any Additional Amounts with
respect to the Securities of such series shall have been paid or provided for in accordance with
the provisions of such series and of this Indenture, irrespective of the validity, regularity or
enforceability of any Security of such series or this Indenture, any change or amendment thereto,
the absence of any action to enforce the same, any waiver or consent by the Trustee or the
Holder of any Security of such series with respect to any provision of such Security or this
Indenture, the recovery of any judgment against the Company or any other Guarantor or any action to
enforce the same, or any other circumstances that may otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives presentment or demand of payment
or notice to such Guarantor with respect to such Security and the obligations evidenced thereby or
hereby. Each Guarantor further waives any right of set-off or counterclaim it may have against any
Holder of a Security arising from any other obligations any such Holder may have to the Company or
any Guarantor.



     It is the intention of the Guarantors that the Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to
the Guarantee. To effectuate the foregoing intention, the obligations of each Guarantor hereunder
shall be limited to the maximum amount as will, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor (other than guarantees of such Guarantor
in respect of subordinated debt) that are relevant under such laws, result in the obligations of
such Guarantor hereunder not constituting a fraudulent transfer or conveyance.



     SECTION 10.02. Proceedings Against Guarantor. In the event of a default in the
payment of principal of or any premium on any Security when and as the












 




53




same shall become due, whether at the Stated Maturity thereof, by acceleration, call for
redemption or otherwise, or in the event of a default in any sinking fund payment, or in the event
of a default in the payment of any interest on or any Additional Amounts with respect to any
Security when and as the same shall become due, each of the Trustee and the Holder of such Security
shall have the right to proceed first and directly against a Guarantor under this Indenture without
first proceeding against the Company or exhausting any other remedies which the Trustee or such
Holder may have and without resorting to any other security held by it.



     The Trustee shall have the right, power and authority to do all things it deems necessary or
advisable to enforce the provisions of this Indenture relating to the Guarantee and to protect the
interests of the Holders of the Securities and, in the event of a default in payment of the
principal of or any premium on any Security when and as the same shall become due, whether at the
Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a
default in the payment of any interest on or any Additional Amounts with respect to any Security
when and as the same shall become due, the Trustee may institute or appear in such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of its
rights and the rights of the Holders, whether for the specific enforcement of any covenant or
agreement in this Indenture relating to the Guarantee or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy. Without limiting the generality of the
foregoing, in the event of a default in payment of the principal of, premium (if any) and interest
on or any Additional Amounts with respect to any Security when due, the Trustee may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same against a Guarantor and
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of such Guarantor, wherever situated.



     SECTION 10.03. Subrogation. Each Guarantor shall be subrogated to all rights
against the Company or any other Guarantor of any Holder of Securities of a series in respect of
any amounts paid by such Guarantor pursuant to the provisions of the Guarantee; provided, however,
that such Guarantor shall be entitled to enforce, or to receive any payments arising out of or
based upon, such right of subrogation only after the principal of, premium (if any) and interest on
and any Additional Amounts with respect to all Securities of such series have been paid in full.



     SECTION 10.04. Guarantee for Benefit of Holders. The Guarantee contained in this
Indenture is entered into by each Guarantor for the benefit of the Holders from time to time of the
Securities. Such provisions shall not be deemed to create any right in, or to be in whole or in
part for the benefit of, any Person other than the Trustee, the Guarantors, the Holders from time
to time of the Securities and their permitted successors and assigns.












 




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ARTICLE XI




Miscellaneous




     SECTION 11.01. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by operation of TIA Section 318(c), the
imposed duties shall control.



     SECTION 11.02. Notices. Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), telex, facsimile or overnight
air courier guaranteeing next day delivery, to the other’s address:


If to the Company:


American Standard Inc.

1 Centennial Plaza

P.O. Box 6820

Piscataway, NJ 08855-6820

Attn: President

Telephone: 732-980-6000

Facsimile: 732-980-3377


If to Holdings:


American Standard Companies Inc.

1 Centennial Plaza

P.O. Box 6820

Piscataway, NJ 08855-6820

Attn: General Counsel

Telephone: 732-980-6000

Facsimile: 732-980-3377


If to ASII:


American Standard International Inc.

1 Centennial Plaza

P.O. Box 6820

Piscataway, NJ 08855-6820

Attn: President

Telephone: 732-980-6000

Facsimile: 732-980-3377


If to the Trustee:


The Bank of New York

101 Barclay Street, Floor 8W












 




55




New York, New York 10286

Attn: Corporate Trust Administration

Telephone: (212) 815-5498

Facsimile: (212) 815-5707



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



     All notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.



     Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid,
to the Holder’s address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.



     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except in the case of
notice to the Trustee, it is duly given only when received.



     If the Company or a Guarantor mails a notice or communication to Holders, it shall mail a copy
to the others and to the Trustee and each Agent at the same time.



     All notices or communications, including without limitation notices to the Trustee, the
Company or a Guarantor by Holders, shall be in writing, except as otherwise set forth herein.



     In case by reason of the suspension of regular mail service, or by reason of any other cause,
it shall be impossible to mail any notice required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute a sufficient
mailing of such notice.



     SECTION 11.03. Communication by Holders with Other Holders. Holders may communicate
pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture
or the Securities. The Company, the Guarantors, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).



     SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Company or a Guarantor to the Trustee to take any action under this
Indenture, the Company or such Guarantor, as the case may be, shall, if requested by the Trustee,
furnish to the Trustee at the expense of the Company or such Guarantor, as the case may be:












 




56


     (1) an Officers’ Certificate (which shall include the statements set forth in Section
11.05) stating that, in the opinion of the signers, all conditions precedent and covenants,
if any, provided for in this Indenture relating to the proposed action have been complied
with; and




     (2) an Opinion of Counsel (which shall include the statements set forth in Section
11.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent
and covenants have been complied with.



     SECTION 11.05. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:




     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




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




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




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



     SECTION 11.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or at a meeting of Holders. The Registrar or the Paying Agent may make reasonable rules
and set reasonable requirements for its functions.



     SECTION 11.07. Legal Holidays. If a payment date is a Legal Holiday at a Place of
Payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.



     SECTION 11.08. No Recourse Against Others. A director, officer, employee,
stockholder, partner or other owner of the Company, a Guarantor or the Trustee, as such, shall not
have any liability for any obligations of the Company under the Securities, for any obligations of
any Guarantor under the Guarantee, or for any obligations of the Company, any Guarantor or the
Trustee under this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release shall be part of the consideration for the issue of Securities.



     SECTION 11.09. Governing Law. THIS INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL
BE GOVERNED BY AND












 




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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.



     SECTION 11.10. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret another indenture, loan or debt agreement of the Company, any Guarantor or any
Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.



     SECTION 11.11. Successors. All agreements of the Company and the Guarantors in this
Indenture and the Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.



     SECTION 11.12. Severability. 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, to the fullest extent permitted by applicable law, not in any way
be affected or impaired thereby.



     SECTION 11.13. Counterpart Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     SECTION 11.14. Table of Contents, Headings, etc. The table of contents,
cross-reference table and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof and shall in no
way modify or restrict any of the terms or provisions hereof.












 


58




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



	 	 	 	 	 
	 	 	AMERICAN STANDARD INC.,
	 
	 	 	 	 
	

	 	     By	 	 
	

	 	 	 	     /s/ R. Scott Massengill
	

	 	 	 	 
	

	 	 	 	Name: R. Scott Massengill
	

	 	 	 	Title: Vice President and Treasurer
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	AMERICAN STANDARD COMPANIES INC.,
	 
	 	 	 	 
	

	 	     By	 	 
	

	 	 	 	     /s/ R. Scott Massengill
	

	 	 	 	 
	

	 	 	 	Name: R. Scott Massengill
	

	 	 	 	Title: Vice President and Treasurer
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	AMERICAN STANDARD INTERNATIONAL INC.,
	 
	 	 	 	 
	

	 	     By	 	 
	

	 	 	 	     /s/ R. Scott Massengill
	

	 	 	 	 
	

	 	 	 	Name: R. Scott Massengill
	

	 	 	 	Title: Vice President and Treasurer
	 	 	 
	 	 	 
	 	 	THE BANK OF NEW YORK, AS TRUSTEE,
	 
	 	 	 	 
	

	 	     By	 	 
	

	 	 	 	     /s/ Robert Massimillo
	

	 	 	 	 
	

	 	 	 	Name: Robert Massimillo
	

	 	 	 	Title: Vice President