exv4w11






Exhibit 4.11




 

 








HOVNANIAN ENTERPRISES, INC.




Issuer



and



SUBSIDIARY GUARANTORS OF HOVNANIAN THAT BECOME PARTIES HERETO

FROM TIME TO TIME



Guarantors



and



WILMINGTON TRUST COMPANY



as Trustee



 





INDENTURE



Dated as of [_____________]



FORM OF SENIOR INDENTURE



 

 












 









 


















CROSS REFERENCE SHEET*




 






     Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of [_____________]
among HOVNANIAN ENTERPRISES, INC., SUBSIDIARY GUARANTORS OF HOVNANIAN that become parties hereto
from time to time and WILMINGTON TRUST COMPANY, as Trustee:



	 	 	 
	Section of the Act	 	Section of Indenture
	310(a)(1), (2) and (5)

	 	6.9
	310(a)(3) and (4)

	 	Inapplicable
	310(b)

	 	6.8 and 6.10(a), (b) and (d)
	310(c)

	 	Inapplicable
	311(a)

	 	6.13
	311(b)

	 	6.13
	311(c)

	 	Inapplicable
	312(a)

	 	4.1 and 4.2(a)
	312(b)

	 	4.2(b)
	312(c)

	 	4.2(c)
	313(a)

	 	4.4(a)(i), (ii), (iii), (iv), (v), (vi) and (vii)
	313(b)(1)

	 	Inapplicable
	313(b)(2)

	 	4.4(a) and (b)
	313(c)

	 	4.4(b)
	313(d)

	 	4.4(b)
	314(a)

	 	4.3
	314(b)

	 	Inapplicable
	314(c)(1) and (2)

	 	11.5
	314(c)(3)

	 	Inapplicable
	314(d)

	 	Inapplicable
	314(e)

	 	11.5
	314(f)

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

	 	6.1
	315(b)

	 	5.8
	315(e)

	 	5.9
	316(a)(1)

	 	5.7
	316(a)(2)

	 	Not required
	316(a) (last sentence)

	 	7.4
	316(b)

	 	5.4
	317(a)

	 	5.2
	317(b)

	 	3.5(a)
	318(a)

	 	11.7








 




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




 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE One DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 1.1.

	 	Definitions
	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE Two SECURITIES	 	 	8	 
	 
	 	 	 	 	 	 
	SECTION 2.1.

	 	Forms Generally
	 	 	8	 
	SECTION 2.2.

	 	Form of Trustee’s Certificate of Authentication
	 	 	8	 
	SECTION 2.3.

	 	Amount Unlimited, Issuable in Series
	 	 	9	 
	SECTION 2.4.

	 	Authentication and Delivery of Securities
	 	 	11	 
	SECTION 2.5.

	 	Execution of Securities
	 	 	14	 
	SECTION 2.6.

	 	Certificate of Authentication
	 	 	14	 
	SECTION 2.7.

	 	Denomination and Date of Securities; Payments of
Interest
	 	 	15	 
	SECTION 2.8.

	 	Registration, Transfer and Exchange
	 	 	15	 
	SECTION 2.9.

	 	Mutilated, Defaced, Destroyed, Lost and Stolen
Securities
	 	 	17	 
	SECTION 2.10.

	 	Cancellation of Securities; Disposition Thereof
	 	 	18	 
	SECTION 2.11.

	 	Temporary Securities
	 	 	19	 
	SECTION 2.12.

	 	CUSIP Numbers
	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE Three COVENANTS	 	 	19	 
	 
	 	 	 	 	 	 
	SECTION 3.1.

	 	Payment of Principal and Interest
	 	 	19	 
	SECTION 3.2.

	 	Offices for Notices and Payments,
etc.
	 	 	19	 
	SECTION 3.3.

	 	No Interest Extension
	 	 	20	 
	SECTION 3.4.

	 	Appointments to Fill Vacancies in Trustee’s Office
	 	 	20	 
	SECTION 3.5.

	 	Provision as to Paying Agent
	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE Four SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE	 	 	21	 
	 
	 	 	 	 	 	 
	SECTION 4.1.

	 	Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders
	 	 	21	 
	SECTION 4.2.

	 	Preservation and Disclosure of Securityholders
Lists
	 	 	21	 
	SECTION 4.3.

	 	Reports by the Issuer
	 	 	22	 
	SECTION 4.4.

	 	Reports by the Trustee
	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE Five REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT	 	 	23	 
	 
	 	 	 	 	 	 
	SECTION 5.1.

	 	Events of Default
	 	 	23	 
	SECTION 5.2.

	 	Payment of Securities on Default; Suit Therefor
	 	 	25	 
	SECTION 5.3.

	 	Application of Moneys Collected by Trustee
	 	 	26	 
	SECTION 5.4.

	 	Proceedings by Securityholders
	 	 	27	 
	SECTION 5.5.

	 	Proceedings by Trustee
	 	 	28	 
	SECTION 5.6.

	 	Remedies Cumulative and Continuing
	 	 	28	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 5.7.

	 	Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders
	 	 	28	 
	SECTION 5.8.

	 	Notice of Defaults
	 	 	29	 
	SECTION 5.9.

	 	Undertaking to Pay Costs
	 	 	29	 
	 
	 	 	 	 	 	 
	ARTICLE Six CONCERNING THE TRUSTEE	 	 	29	 
	 
	 	 	 	 	 	 
	SECTION 6.1.

	 	Duties and Responsibilities of the Trustee; During
Default; Prior to Default
	 	 	29	 
	SECTION 6.2.

	 	Certain Rights of the Trustee
	 	 	30	 
	SECTION 6.3.

	 	Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof
	 	 	32	 
	SECTION 6.4.

	 	Trustee and Agents May Hold Securities;
Collections, etc.
	 	 	32	 
	SECTION 6.5.

	 	Moneys Held by Trustee
	 	 	33	 
	SECTION 6.6.

	 	Compensation and Indemnification of Trustee and
Its Prior Claim
	 	 	33	 
	SECTION 6.7.

	 	Right of Trustee to Rely on Officers’ Certificate,
etc.
	 	 	33	 
	SECTION 6.8.

	 	Qualification of Trustee; Conflicting Interests
	 	 	34	 
	SECTION 6.9.

	 	Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series
	 	 	34	 
	SECTION 6.10.

	 	Resignation and Removal; Appointment of Successor
Trustee
	 	 	34	 
	SECTION 6.11.

	 	Acceptance of Appointment by Successor Trustee
	 	 	36	 
	SECTION 6.12.

	 	Merger, Conversion, Consolidation or Succession to
Business of Trustee
	 	 	36	 
	SECTION 6.13.

	 	Preferential Collection of Claims Against the
Issuer
	 	 	37	 
	SECTION 6.14.

	 	Appointment of Authenticating Agent
	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE Seven CONCERNING THE SECURITYHOLDERS	 	 	38	 
	 
	 	 	 	 	 	 
	SECTION 7.1.

	 	Evidence of Action Taken by Securityholders
	 	 	38	 
	SECTION 7.2.

	 	Proof of Execution of Instruments and of Holding
of Securities
	 	 	38	 
	SECTION 7.3.

	 	Holders to be Treated as Owners
	 	 	39	 
	SECTION 7.4.

	 	Securities Owned by Issuer Deemed Not Outstanding
	 	 	39	 
	SECTION 7.5.

	 	Right of Revocation of Action Taken
	 	 	39	 
	SECTION 7.6.

	 	Record Date for Consents and Waivers
	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE Eight SUPPLEMENTAL INDENTURES	 	 	40	 
	 
	 	 	 	 	 	 
	SECTION 8.1.

	 	Supplemental Indentures Without Consent of
Securityholders
	 	 	40	 
	SECTION 8.2.

	 	Supplemental Indentures with Consent of
Securityholders
	 	 	42	 
	SECTION 8.3.

	 	Effect of Supplemental Indenture
	 	 	43	 
	SECTION 8.4.

	 	Documents to Be Given to Trustee
	 	 	44	 
	SECTION 8.5.

	 	Notation on Securities in Respect of Supplemental
Indentures
	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE Nine CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION	 	 	44	 
	 
	 	 	 	 	 	 
	SECTION 9.1.

	 	Consolidation Permitted, etc., on Certain Terms
	 	 	44	 






-ii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 9.2.

	 	Successor Corporation to be Substituted
	 	 	45	 
	SECTION 9.3.

	 	Opinion of Counsel to be Given Trustee
	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE Ten LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 	 	46	 
	 
	 	 	 	 	 	 
	SECTION 10.1.

	 	Applicability of Article
	 	 	46	 
	SECTION 10.2.

	 	Legal Defeasance and Discharge
	 	 	46	 
	SECTION 10.3.

	 	Covenant Defeasance
	 	 	46	 
	SECTION 10.4.

	 	Conditions to Legal or Covenant Defeasance
	 	 	47	 
	SECTION 10.5.

	 	Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions
	 	 	48	 
	SECTION 10.6.

	 	Repayment to Issuer
	 	 	48	 
	SECTION 10.7.

	 	Reinstatement
	 	 	49	 
	SECTION 10.8.

	 	Survival
	 	 	49	 
	SECTION 10.9.

	 	Satisfaction and Discharge of Indenture
	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE Eleven MISCELLANEOUS PROVISIONS	 	 	50	 
	 
	 	 	 	 	 	 
	SECTION 11.1.

	 	Partners, Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from Individual
Liability
	 	 	50	 
	SECTION 11.2.

	 	Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities
	 	 	50	 
	SECTION 11.3.

	 	Successors and Assigns of Issuer Bound by Indenture
	 	 	50	 
	SECTION 11.4.

	 	Notices and Demands on Issuer, Trustee and Holders
of Securities
	 	 	50	 
	SECTION 11.5.

	 	Officers’ Certificates and Opinions of Counsel;
Statements to Be Contained Therein
	 	 	51	 
	SECTION 11.6.

	 	Payments Due on Saturdays, Sundays and Holidays
	 	 	52	 
	SECTION 11.7.

	 	Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939
	 	 	52	 
	SECTION 11.8.

	 	GOVERNING LAW
	 	 	52	 
	SECTION 11.9.

	 	Counterparts
	 	 	52	 
	SECTION 11.10.

	 	Effect of Headings
	 	 	52	 
	SECTION 11.11.

	 	No Adverse Interpretation of Other Agreements
	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE Twelve REDEMPTION OF SECURITIES AND SINKING FUNDS	 	 	52	 
	 
	 	 	 	 	 	 
	SECTION 12.1.

	 	Applicability of Article
	 	 	52	 
	SECTION 12.2.

	 	Notice of Redemption; Partial Redemptions
	 	 	53	 
	SECTION 12.3.

	 	Payment of Securities Called for Redemption
	 	 	54	 
	SECTION 12.4.

	 	Exclusion of Certain Securities from Eligibility
for Selection for Redemption
	 	 	54	 
	SECTION 12.5.

	 	Mandatory and Optional Sinking Funds
	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE Thirteen GUARANTEES	 	 	57	 
	 
	 	 	 	 	 	 
	SECTION 13.1.

	 	Applicability of Article
	 	 	57	 
	SECTION 13.2.

	 	Guarantee
	 	 	57	 






-iii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 13.3.

	 	Obligations of the Guarantor Unconditional
	 	 	58	 
	SECTION 13.4.

	 	Article Thirteen Not to Prevent Events of Default
	 	 	58	 
	SECTION 13.5.

	 	Execution and Delivery of Guarantee
	 	 	59	 
	SECTION 13.6.

	 	Limitation on Guarantor Liability
	 	 	59	 







-iv-











 





SENIOR INDENTURE




     SENIOR INDENTURE, dated as of [_____________] among Hovnanian Enterprises, Inc., a Delaware
corporation (the “Issuer” or “Hovnanian”), Subsidiary Guarantors of Hovnanian that become parties
hereto from time to time and Wilmington Trust Company, a Delaware banking corporation, as trustee
(the “Trustee”).



RECITALS OF THE ISSUER:




     WHEREAS, the Issuer has duly authorized the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of indebtedness to be issued in one or more
series (the “Securities”) up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture; and



     WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
and



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been undertaken and completed.



RECITALS OF GUARANTORS:




     WHEREAS, each Guarantor desires to make the Guarantees provided for herein; and



     WHEREAS, all things necessary to make this Indenture a valid agreement of each of the
Guarantors, in accordance with its terms, have been done and the Guarantor will do all things
necessary to make the Guarantees, when executed by each of the Guarantors and endorsed on the
Securities authenticated and delivered hereunder, the valid obligations of each Guarantor as
hereinafter provided.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE ONE

DEFINITIONS




     SECTION 1.1. Definitions. For all purposes of this Indenture and of any indenture supplemental hereto the following
terms shall have the respective meanings specified in this Section 1.1 (except as otherwise
expressly provided herein or in any indenture supplemental hereto or unless the context otherwise
clearly requires). All other terms used in this Indenture that are defined in the Trust Indenture
Act of 1939, including terms defined therein by reference to the Securities Act of 1933, as amended
(the “Securities Act”), shall have the meanings assigned to such terms in said Trust Indenture Act
of 1939 and in the Securities Act as in force at the date of this Indenture (except as otherwise
expressly provided herein or in any indenture supplemental hereto or unless the context otherwise
clearly requires).



 









 





     All accounting terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles, and the term “generally
accepted accounting principles” means such accounting principles as are generally accepted in the
United States of America on the date of this Indenture.



     The words “herein”, “hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision. The
expressions “date of this Indenture”, “date hereof”, “date as of which this Indenture is dated” and
“date of execution and delivery of this Indenture” and other expressions of similar import refer to
the effective date of the original execution and delivery of this Indenture, viz. as of
[_____________].



     The terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.



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



     “Authenticating Agent” shall have the meaning set forth in Section 6.14.



     “Bankruptcy Code” means the United States Bankruptcy Code, 11 United States Code §§ 101 et
seq., or any successor statute thereto.



     “Board of Directors” means the board of directors of the Issuer or any duly authorized
committee of that board or any director or directors and/or officer or officers to whom that board
or committee shall have duly delegated its authority.



     “Board Resolution” means (1) one or more resolutions, certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted or consented to by the Board of
Directors of the Issuer and to be in full force and effect, or (2) a certificate signed by the
director or directors and/or officer or officers to whom the Board of Directors or any duly
authorized committee of that Board shall have duly delegated its authority, in each case delivered
to the Trustee for the Securities of any series.



     “Business Day” means, with respect to any Security, unless otherwise specified in a Board
Resolution and an Officers’ Certificate with respect to a particular series of Securities, a day
that (a) in the Place of Payment (or in any of the Places of Payment, if more than one) in which
amounts are payable, as specified in the form of such Security, and (b) in the city in which the
Corporate Trust Office is located, is not a day on which banking institutions are authorized or
required by law or regulation to close.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution and delivery of



2









 







this
Indenture such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act of 1939, then the body performing such duties on such date.



     “Corporate Trust Office” means the office of the Trustee of a series of Securities at which
the trust created by this Indenture shall, at any particular time, be principally administered,
which office is, at the date as of which this Indenture is dated, located at Rodney Square North,
1100 North Market Street, Wilmington, DE 19890.



     “Covenant Defeasance” has the meaning set forth in Section 10.3.



     “Depositary” means, with respect to the Securities of any series issuable or issued in the
form of one or more Global Securities, the Person designated as Depositary by the Issuer pursuant
to Section 2.3 until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the Depositary with respect to
the Global Securities of such series.



     “Dollars” and the sign “$” means the coin and currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debts.



     “Eligible Guarantors” means each of Hovnanian’s subsidiaries listed on Exhibit B hereto and
each other subsidiary of Hovnanian that Guarantees a series of Securities established under this
Indenture.



     “Event of Default” means any event or condition specified as such in Section 5.1.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Global Security” means a Security evidencing all or a part of a series of Securities issued
to the Depositary for such series in accordance with Section 2.3 and bearing the legend prescribed
in Section 2.4.



     “Guarantee” has the meaning specified in Section 13.2.



     “Guarantor” has the meaning specified in Section 2.3.



     “Holder”, “Holder of Securities”, “Securityholder” or other similar terms mean, in the case of
any Security, the Person in whose name such Security is registered in the security register kept by
the Issuer for that purpose in accordance with the terms hereof.



     “Hovnanian” means Hovnanian Enterprises, Inc., a Delaware corporation.



     “Indebtedness” with respect to any Person means, without duplication:




     (a) (i) the principal of and premium, if any, and interest, if any, on indebtedness
for money borrowed of such Person, indebtedness of such Person evidenced by bonds, notes,
debentures or similar obligations, and any guaranty by such Person of any



3









 







indebtedness for
money borrowed or indebtedness evidenced by bonds, notes, debentures or similar obligations
of any other Person, whether any such indebtedness or guaranty is outstanding on the date of
this Indenture or is thereafter created, assumed or incurred, (ii) obligations of such
Person for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction; (iii) the principal of and premium,
if any, and interest, if any, on indebtedness incurred, assumed or guaranteed by such Person
in connection with the acquisition by it or any of its subsidiaries of any other businesses,
properties or other assets; (iv) lease obligations which such Person capitalizes in
accordance with ASC Topic 840 promulgated by the Financial Accounting Standards Board or
such other generally accepted accounting principles as may be from time to time in effect;
(v) any indebtedness of such Person representing the balance deferred and unpaid of the
purchase price of any property or interest therein (except any such balance that constitutes
an accrued expense or trade payable) and any guaranty, endorsement or other contingent
obligation of such Person in respect of any indebtedness of another that is outstanding on
the date of this Indenture or is thereafter created, assumed or incurred by such Person; and
(vi) obligations of such Person under interest rate, commodity or currency swaps, caps,
collars, options and similar arrangements; and




     (b) any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clause (a) above.



     “Indenture” means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, including, for all purposes
of this instrument and any such supplement, the provisions of the Trust Indenture Act of 1939 that
are deemed to be a part of and govern this instrument and any such supplement, respectively, and
shall include the forms and terms of particular series of Securities established as contemplated
hereunder.



     “interest” means, when used with respect to non-interest bearing Securities (including,
without limitation, any Original Issue Discount Security that by its terms bears interest only
after maturity or upon default in any other payment due on such Security), interest payable after
maturity (whether at stated maturity, upon acceleration or redemption or otherwise) or after the
date, if any, on which the Issuer becomes obligated to acquire a Security, whether upon conversion,
by purchase or otherwise.



     “Issuer” means Hovnanian Enterprises, Inc., a Delaware corporation, and, subject to Article
Nine, its successors and assigns.



     “Issuer Order” means a written statement, request or order of the Issuer, which is signed in
its name by the chairman of the Board of Directors, the chief financial officer, the president or
chief executive officer, any vice president or the treasurer of the Issuer, and delivered to the
Trustee.



     “Legal Defeasance” has the meaning specified in Section 10.2.



     “Officers’ Certificate” means a certificate signed by the chairman of the Board of Directors,
the president or chief executive officer, or any vice president and by the chief financial



4









 







officer,
the treasurer, any assistant treasurer, the controller, any assistant controller, the secretary or
any assistant secretary of the Issuer. Each such certificate shall include the statements provided
for in Section 11.5 if and to the extent required by the provisions of such Section 11.5. One of
the officers signing an Officers’ Certificate given pursuant to Section 4.3 shall be the principal
executive, financial or accounting officer of the Issuer.



     “Opinion of Counsel” means an opinion in writing signed by the chief counsel of the Issuer or
by such other legal counsel who may be an employee of or counsel to the Issuer and who shall be
reasonably satisfactory to the Trustee. Each such opinion shall include the statements provided
for in Section 11.5, if and to the extent required by the provisions of such Section 11.5.



     “original issue date” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.



     “original issue discount” of any debt security, including any Original Issue Discount
Security, means the difference between the principal amount of such debt security and the initial
issue price of such debt security (as set forth in the case of an Original Issue Discount Security
on the face of such Security).



     “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 Article Five.



     “Outstanding” when used with reference to Securities, shall, subject to the provisions of
Section 7.4, mean, as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except:




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




     (b) Securities (other than Securities of any series as to which the provisions of
Article Ten hereof shall not be applicable), or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as provided for in Section 10.1)
in the necessary amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own
paying agent), provided that, if such Securities, or portions thereof, are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for giving such
notice; and




     (c) Securities which shall have been paid or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.9 (except
with respect to any such Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security is a legal, valid and
binding obligation of the Issuer).



5









 





     In determining whether the Holders of the requisite aggregate principal amount of Outstanding
Securities of any or all series have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall
be deemed to be Outstanding for such purposes shall be the portion of the principal amount thereof
that would be due and payable as of the date of such
determination (as certified by the Issuer to the Trustee) upon a declaration of acceleration
of the maturity thereof pursuant to Article Five.



     “paying agent” refers to a Person engaged to perform the obligations of the Trustee in respect
of payments made or funds held hereunder in respect of the Securities.



     “Periodic Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such
Securities.



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



     “Place of Payment”, when used with respect to the Securities of any series, means the place or
places where the principal of and interest, if any, on the Securities of such series are payable as
determined in accordance with Section 2.3.



     “principal” of a debt security, including any Security, means the amount (including, without
limitation, if and to the extent applicable, any premium and, in the case of an Original Issue
Discount Security, any accrued original issue discount, but excluding interest) that is payable
with respect to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption at the option of the
Issuer, upon any purchase or exchange at the option of the Issuer or the holder of such debt
security and upon any acceleration of the maturity of such debt security).



     “principal amount” of a debt security, including any Security, means the principal amount as
set forth on the face of such debt security.



     “record date” shall have the meaning set forth in Section 2.7.



     “Responsible Officer”, when used with respect to the Trustee of a series of Securities, means
any officer of the Trustee with direct responsibility for the administration of the trust created
by this Indenture.



     “Restricted Subsidiary” means (a) any Subsidiary of the Issuer other than an Unrestricted
Subsidiary, and (b) any Subsidiary of the Issuer which was an Unrestricted Subsidiary but which,
subsequent to the date hereof, is designated by the Issuer (by Board Resolution) to be a Restricted
Subsidiary; provided, however, that the Issuer may not designate any such Subsidiary to be a
Restricted Subsidiary if the Issuer would thereby breach any covenant or agreement



6









 







herein contained
(on the assumptions that any outstanding Indebtedness of such Subsidiary was incurred at the time
of such designation).



     “Securities Act” shall have the meaning set forth in Section 1.1.



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



     “Significant Subsidiary” means any Subsidiary which is a “significant subsidiary” of the
Issuer within the meaning of Rule 1.02(w) of Regulation S-K promulgated by the Commission as in
effect on the date of this Indenture.



     “Subsidiary” of any specified Person means any corporation, association or other business
entity of which such Person, or such Person and one or more Subsidiaries of such Person, or any one
or more Subsidiaries of such Person, directly or indirectly own voting securities entitling any one
or more of such Persons and its Subsidiaries to elect a majority of the directors or other persons
performing similar functions, either at all times or, so long as there is no default or contingency
which permits the holders of any other class or classes of securities to vote for the election of
one or more directors or other persons performing similar functions.



     “Trust Indenture Act of 1939” (except as otherwise provided in Sections 8.1 and 8.2) means the
Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force at
the date as of which this Indenture is originally executed.



     “Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article Six, shall also include any successor trustee. “Trustee” shall also
mean or include each Person who is then a trustee hereunder and, if at any time there is more than
one such Person, “Trustee” as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.



     “Unrestricted Subsidiary” means (a) any Subsidiary of the Issuer acquired or organized after
the date hereof, provided, however, that such Subsidiary shall not be a successor, directly or
indirectly, to any Restricted Subsidiary, and (b) any Subsidiary of the Issuer substantially all
the assets of which consist of stock or other securities of a Subsidiary or Subsidiaries of the
character described in clause (a) of this paragraph, unless and until such Subsidiary shall have
been designated to be a Restricted Subsidiary pursuant to clause (b) of the definition of
“Restricted Subsidiary”.



     “U.S. Government Obligations” means non-callable, non-payable bonds, notes, bills or other
similar obligations issued or guaranteed by the United States government or any agency thereof the
full and timely payment of which are backed by the full faith and credit of the United States of
America.



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     “vice president,” when used with respect to the Issuer or the Trustee, means any vice
president, regardless of whether designated by a number or a word or words added before or after
the title “vice president.”



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



ARTICLE TWO

SECURITIES




     SECTION 2.1. Forms Generally. The Securities of each series shall be substantially in such form (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more Board Resolutions (as set forth in
a Board Resolution or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officers’ Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities, as evidenced by their
execution of such Securities.



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



     SECTION 2.2. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication on all Securities shall be substantially as
follows:



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



	 	 	 	 	 	 
	 	 

 	, as Trustee	 
	 
	 
	 	By  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 




     If at any time there shall be an Authenticating Agent appointed with respect to any series of
Securities, then the Securities of such series shall bear, in addition to the Trustee’s certificate
of authentication, an alternate Certificate of Authentication which shall be substantially as
follows:



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



	 	 	 	 	 	 
	 	 

 	, as Trustee	 
	 
	 
	 
	 	By  	 	 
	 	 	as Authenticating Agent 	 
	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




     SECTION 2.3. Amount Unlimited, Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.



     The Securities may be issued in one or more series and the Securities of each such series
shall rank equally and pari passu with the Securities of each other series and with all other
unsecured and unsubordinated debt of the Issuer. There shall be established in or pursuant to one
or more Board Resolutions (and, to the extent established pursuant to rather than set forth in a
Board Resolution, in an Officers’ Certificate detailing such establishment) or established in one
or more indentures supplemental hereto, prior to the initial issuance of Securities of any series:




     (1) the designation of the Securities of the series, which shall distinguish the
Securities of such series from the Securities of all other series;




     (2) any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);




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




     (4) the rate or rates at which the Securities of the series shall bear interest, if
any, the date or dates from which any such interest shall accrue, on which any such interest
shall be payable and on which a record shall be taken for the determination of Holders to
whom any such interest is payable or the method by which such rate or rates or date or dates
shall be determined or both;




     (5) the place or places where and the manner in which the principal of, premium, if
any, and interest, if any, on Securities of the series shall be payable (if other than as
provided in Section 3.2) and the office or agency for the Securities of the series
maintained by the Issuer pursuant to Section 3.2;



9









 






     (6) the right, if any, of the Issuer to redeem, purchase or repay Securities of the
series, in whole or in part, at its option and the period or periods within which, the price
or prices (or the method by which such price or prices shall be determined or both) at
which, the form or method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the provisions of Article
Twelve) Securities of the series may be so redeemed, purchased or repaid, in whole or in
part, pursuant to any sinking fund or otherwise;




     (7) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of
the series in whole or in part pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the period or periods within
which the price or prices (or the method by which such price or prices shall be determined
or both) at which, the form or method of payment therefor if other than in cash and any
terms and conditions upon which and the manner in which (if different from the provisions of
Article Twelve) Securities of the series shall be redeemed, purchased or repaid, in whole or
in part, pursuant to such obligation;




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




     (9) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon acceleration of the maturity thereof;




     (10) whether Securities of the series will be issuable as Global Securities;




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




     (12) any trustees, depositaries, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such series;




     (13) any deleted, modified or additional events of default or remedies or any deleted,
modified or additional covenants with respect to the Securities of such series;




     (14) whether the provisions of Article Ten will not be applicable to Securities of such
series;




     (15) any provision relating to the issuance of Securities of such series at an original
issue discount (including, without limitation, the issue price thereof, the rate or rates at
which such original issue discount shall accrete, if any, and the date or dates from or to
which or period or periods during which such original issue discount shall accrete at such
rate or rates);



10









 






     (16) if other than Dollars, the foreign currency in which payment of the principal of,
premium, if any, and interest, if any, on the Securities of such series shall be payable;




     (17) if other than Wilmington Trust Company is to act as Trustee for the Securities of
such series, the name and Corporate Trust Office of such Trustee;




     (18) if the amounts of payments of principal of, premium, if any, and interest, if any,
on the Securities of such series are to be determined with reference to an index, the manner
in which such amounts shall be determined;




     (19) the terms for conversion or exchange, if any, with respect to the Securities of
such series;




     (20) which, if any, of the Eligible Guarantors shall guarantee the Securities of such
series on the terms set forth in Article Thirteen (each of the Eligible Guarantors that
guarantee the Securities on the terms set forth in Article Thirteen, if any, a “Guarantor”);
and




     (21) any other terms of the Securities of such series (which terms shall not be
inconsistent with 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 by or pursuant to the Board Resolution or Officers’
Certificate referred to above or as set forth in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers’ Certificate or in any such indenture supplemental hereto.



     Any such Board Resolution or Officers’ Certificate referred to above with respect to
Securities of any series filed with the Trustee on or before the initial issuance of the Securities
of such series shall be incorporated herein by reference with respect to Securities of such series
and shall thereafter be deemed to be a part of the Indenture for all purposes relating to
Securities of such series as fully as if such Board Resolution or Officers’ Certificate were set
forth herein in full.



     SECTION 2.4. Authentication and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this Section 2.4, and
the Trustee shall thereupon authenticate and deliver such Securities to, or upon the order of, the
Issuer (contained in the Issuer Order referred to below in this Section 2.4) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be specified from time to time
by an Issuer Order. If provided for in such procedures and agreed to by the Trustee, such Issuer
Order may authorize authentication and delivery pursuant to oral instructions from the Issuer or
its duly authorized agent, which instructions shall be promptly confirmed in writing. In
authenticating the Securities of such series and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the
case of subparagraphs (2), (3) and (4) below only at or before the time of the first request of the
Issuer to the Trustee to authenticate



11









 







Securities of such series) and (subject to Section 6.1) shall
be fully protected in relying upon, unless and until such documents have been superseded or
revoked:




     (1) an Issuer Order requesting such authentication and setting forth delivery
instructions provided that, with respect to Securities of a series subject to a Periodic
Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee
shall authenticate and deliver Securities of such series for original issue from time to
time, in an aggregate principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order, (c) the maturity date or
dates, original issue date or dates, interest rate or rates, if any, and any other terms of
Securities of such series shall be determined by an Issuer Order and (d) after the original
issuance of the first Security of such series to be issued, any separate request by the
Issuer that the Trustee authenticate Securities of such series for original issuance will be
deemed to be a certification by the Issuer that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and delivery of such
Securities;




     (2) the Board Resolution, Officers’ Certificate or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the
Securities of such series were established;




     (3) an Officers’ Certificate stating that the form or forms and terms of the Securities
have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture and
covering such other matters as the Trustee may reasonably request; and




     (4) at the option of the Issuer, either an Opinion of Counsel, or a letter from legal
counsel addressed to the Trustee permitting it to rely on an Opinion of Counsel,
substantially to the effect that:




     (a) in the case of an underwritten offering, the Securities of such series have
been duly authorized, executed and delivered and, in the case of an offering that is
not underwritten, certain terms of the Securities of such series have been
established pursuant to a Board Resolution, an Officers’ Certificate or a
supplemental indenture in accordance with this Indenture, and when such other terms
as are to be established pursuant to procedures set forth in an Issuer Order shall
have been established, all such terms will have been duly authorized by the Issuer
and will have been established in conformity with the provisions of this Indenture;




     (b) when the Securities of such series have been duly authorized, executed and
delivered by the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the purchasers
thereof, they will constitute valid and legally binding obligations of the Issuer,
enforceable in accordance with their respective terms, and will be entitled to the
benefits of this Indenture; and



12









 






     (c) the execution and delivery by the Issuer of, and the performance by the
Issuer of its obligations under, the Securities of such series will not conflict
with any provision of applicable law or the articles of incorporation or bylaws of
the Issuer or any agreement or other instrument to which the Issuer or any of the
Guarantors is a party and that is material to the Issuer and its Subsidiaries,
considered as one enterprise, or, to such counsel’s knowledge after the inquiry
indicated therein, any judgment, order or decree of any governmental agency or any
court having jurisdiction over the Issuer and any of its Subsidiaries, and no
consent, approval or authorization of any governmental body or agency is required
for the performance by the Issuer of its obligations under the Securities, except
such as are specified and have been obtained and such as may be required
by the securities or blue sky laws of the various states in connection with the
offer and sale of the Securities.



     In rendering such opinions, such counsel may qualify any opinions as to enforceability by
stating that such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, liquidation, moratorium and other similar laws relating to or affecting the rights
and remedies of creditors and is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing. Such counsel may also state that, insofar as such opinion involves
factual matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its subsidiaries, as applicable, and certificates of
public officials.



     The Trustee shall have the right to decline to authenticate and deliver any Securities of any
series under this Section 2.4 if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors
or board of trustees, executive committee or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would adversely affect the Trustee’s own rights, duties or
immunities under the Securities, this Indenture or otherwise.



     If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to
be issued in the form of one or more Global Securities, then the Issuer shall execute and the
Trustee shall, in accordance with this Section 2.4 and the Issuer Order with respect to such
series, authenticate and deliver one or more Global Securities that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of all of the Securities of
such series to be issued in the form of Global Securities and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary’s instructions, and (iv) shall bear a legend substantially to the following effect:



     “THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED
FORM, THIS SECURITY MAY NOT BE



13









 







TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (THE “DEPOSITARY”) TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.



     UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF
THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.”



     Each Depositary designated pursuant to Section 2.3 must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under the Exchange Act,
and any other applicable statute or regulation.



     Reference is made to Section 13.5 concerning execution and delivery of the Guarantees.



     SECTION 2.5. Execution of Securities. The Securities shall be signed on behalf of the Issuer by the chairman of the Board of
Directors, the president or chief executive officer, any vice president, the chief financial
officer or the treasurer of the Issuer. Such signatures may be the manual or facsimile signatures
of the present or any future such officers. Typographical and other minor errors or defects in any
such reproduction of such signature shall not affect the validity or enforceability of any Security
that has been duly authenticated and delivered by the Trustee.



     In case any officer of the Issuer who shall have signed any of the Securities shall cease to
be such officer before the Security so signed shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be such officer of the
Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security, shall be the proper officers of the Issuer, although at the
date of the execution and delivery of this Indenture any such person was not such an officer.



          Reference is made to Section 13.5 concerning execution and delivery of the Guarantees.



     SECTION 2.6. Certificate of Authentication. Only such Securities as shall bear thereon a certificate of authentication substantially in
the form hereinbefore recited, executed by the Trustee by the manual signature of one of its
authorized signatories, or its Authenticating Agent,



14









 







shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. The execution of such certificate by the
Trustee or its Authenticating Agent upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and delivered hereunder and
that the Holder is entitled to the benefits of this Indenture. Each reference in this Indenture to
authentication by the Trustee includes authentication by an agent appointed pursuant to Section
6.14.



     SECTION 2.7. Denomination and Date of Securities; Payments of Interest. The Securities of each series shall be issuable in registered form in denominations
established as contemplated by Section 2.3 or, with respect to the Securities of
any series, if not so established, in denominations of $2,000 and any integral multiple of
$1,000 in excess thereof. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee, as evidenced by the execution
and authentication thereof.



     Each Security shall be dated the date of its authentication. The Securities of each series
shall bear interest, if any, from the date, and such interest, if any, shall be payable on the
dates, established as contemplated by Section 2.3.



     The Person in whose name any Security of any series is registered at the close of business on
any record date applicable to a particular series with respect to any interest payment date for
such series shall be entitled to receive the interest, if any, payable on such interest payment
date notwithstanding any transfer or exchange of such Security subsequent to the record date and
prior to such interest payment date, except if and to the extent the Issuer shall default in the
payment of the interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date (which shall be not
less than five Business Days prior to the date of payment of such defaulted interest) established
by notice given by mail by or on behalf of the Issuer to the Holders of Securities not less than 15
days preceding such subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term “record date” as used with respect to
any interest payment date (except a date for payment of defaulted interest) for the Securities of
any series shall mean the date specified as such in the terms of the Securities of such series
established as contemplated by Section 2.3, or, if no such date is so established, if such interest
payment date is the first day of a calendar month, the fifteenth day of the next preceding calendar
month or, if such interest payment date is the fifteenth day of a calendar month, the first day of
such calendar month, whether or not such record date is a Business Day.



     SECTION 2.8. Registration, Transfer and Exchange. The Issuer will keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will provide for the registration of Securities of
each series and the registration of transfer of Securities of such series. Each such register
shall be in written form in the English language or in any other form capable of being converted
into such form within a reasonable time. At all reasonable times such register or registers shall
be open for inspection and available for copying by the Trustee.



15









 





     Upon due presentation for registration of transfer of any Security of any series at any such
office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series, maturity date, interest rate, if any, and original
issue date in authorized denominations for a like aggregate principal amount.



     All Securities presented for registration of transfer shall (if so required by the Issuer or
the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder or
his attorney duly authorized in writing.



     At the option of the Holder thereof, Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for a Security or Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender of such Securities
to be exchanged at the agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.2.



     The Issuer or Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer of
Securities. No service charge shall be made for any such transaction or for any exchange of
Securities of any series as contemplated by the immediately preceding paragraph.



     The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days next preceding the first mailing or publication of notice of
redemption of Securities of such series to be redeemed, (b) any Securities selected, called or
being called for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security if the Holder
thereof has exercised his right, if any, to require the Issuer to repurchase such Security in whole
or in part, except the portion of such Security not required to be repurchased.



     Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Global Security representing all
or a part of the Securities of a series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.



     If at any time the Depositary for any Securities of a series represented by one or more Global
Securities notifies the Issuer that it is unwilling or unable to continue as Depositary for such
Securities or if at any time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to such Securities. If a
successor Depositary for such Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the Issuer’s election pursuant
to Section 2.3 that such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer shall execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive registered form, in any authorized



16









 







denominations, in an
aggregate principal amount equal to the principal amount of the Global Security or Securities
representing such Securities in exchange for such Global Security or Securities.



     The Issuer may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more Global Securities shall no longer be represented by a
Global Security or Securities. In such event, the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive registered form, in
any authorized denominations, in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such Securities, in exchange for such Global
Security or Securities.



     If specified by the Issuer pursuant to Section 2.3 with respect to Securities represented by a
Global Security, the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for Securities of the same series in definitive registered form on
such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,




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




     (ii) to such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and delivered pursuant to clause (i)
above.



     Upon the exchange of a Global Security for Securities in definitive registered form in
authorized denominations, such Global Security shall be cancelled by the Trustee or an agent of the
Trustee. Securities in definitive registered form issued in exchange for a Global Security
pursuant to this Section 2.8 shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Trustee or the Issuer or
an agent of the Issuer. The Trustee or such agent shall deliver at its office such Securities to
or as directed by the Persons in whose names such Securities are so registered.



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



     SECTION 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request
of the Issuer, the Trustee shall authenticate and deliver a new Security of the same series,
maturity date, interest



17









 







rate, if any, and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be
required by the Trustee or the Issuer or any such agent to indemnify and defend and to save each of
the Trustee and the Issuer and any such agent harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and in the case of mutilation or defacement, shall surrender the Security to
the Trustee or such agent.



     Upon the issuance of any substitute Security, the Issuer may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee or its agent) connected
therewith. In case any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer
may instead of issuing a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such
payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee
such security or indemnity as any of them may require to hold each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any agent of the Issuer or the Trustee evidence to the Trustee’s satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.



     Every substitute Security of any series issued pursuant to the provisions of this Section by
virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of such series duly authenticated and delivered
hereunder. All Securities shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other securities without
their surrender.



     SECTION 2.10. Cancellation of Securities; Disposition Thereof. All Securities surrendered for payment, redemption, registration of transfer or exchange, or
for credit against any payment in respect of a sinking or analogous fund, if surrendered to the
Issuer or any agent of the Issuer or the Trustee or any agent of the Trustee, shall be delivered to
the Trustee or its agent for cancellation or, if surrendered to the Trustee, shall be cancelled by
it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall dispose of all cancelled Securities in accordance
with its standard procedures and shall deliver a certificate of such disposition to the Issuer. If
the Issuer or its agent shall acquire any of the Securities, such acquisition shall not operate as
a redemption or



18









 







satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee or its agent for cancellation.



     SECTION 2.11. Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and
the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver temporary Securities
for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be issuable in
any authorized denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series
and thereupon temporary Securities of such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section
3.2 and the Trustee shall authenticate and deliver in exchange for such temporary Securities of
such series an equal aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of such series, unless
otherwise established pursuant to Section 2.3.



     SECTION 2.12. CUSIP Numbers. The Issuer 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 Issuer
will promptly notify the Trustee of any change to such “CUSIP” numbers.



ARTICLE THREE

COVENANTS




     SECTION 3.1. Payment of Principal and Interest. The Issuer covenants and agrees that it will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest, if any, on each of the Securities at the place, at the
respective times and in the manner provided in the Securities.



     SECTION 3.2. Offices for Notices and Payments, etc. So long as any of the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment, an office or agency
where the Securities may be presented for registration of transfer and for exchange as provided in
this Indenture, and an office or agency where notices and demands to or upon the Issuer in respect
of the Securities or of this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or



19









 







agency, or shall fail to give notice to the Trustee of any change in
the location thereof, presentation may be made and notice and demand may be served in respect of
the Securities or of this Indenture to the Trustee. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee for each such purpose and appoints
the Trustee as registrar and paying agent and as the agent upon whom notices and demands may
be served with respect to the Securities.



     SECTION 3.3. No Interest Extension. In order to prevent any accumulation of claims for interest after maturity thereof, the Issuer
will not directly or indirectly extend or consent to the extension of the time for the payment of
any claim for interest on any of the Securities and will not directly or indirectly be a party to
or approve any such arrangement by the purchase or funding of said claims or in any other manner;
provided, however, that this Section 3.3 shall not apply in any case where an extension shall be
made pursuant to a plan proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.



     SECTION 3.4. Appointments to Fill Vacancies in Trustee’s Office. The Issuer, whenever necessary to avoid or fill a vacancy in the office of the Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a
Trustee hereunder.



     SECTION 3.5. Provision as to Paying Agent. (a) If the Issuer shall appoint a paying agent other than the Trustee, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such paying agent shall
agree with the Trustee, subject to the provisions of this Section 3.5,




     (1) that it will hold all sums held by it as such paying agent for the payment of the
principal of or interest, if any, on the Securities (whether such sums have been paid to it
by the Issuer or by any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities and the Trustee; and




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




     (3) that it will, at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by
such paying agent.



     (b) If the Issuer shall act as its own paying agent, it will, on or before each due date of
the principal of, premium, if any, or interest, if any, on the Securities, set aside, segregate and
hold in trust for the benefit of the Holders of the Securities a sum sufficient to pay such
principal, premium, if any, or interest, if any, so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of, premium, if any, or interest, if any, on the
Securities when the same shall become due and payable.



     (c) Anything in this Section 3.5 to the contrary notwithstanding, the Issuer may, at any time,
for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent



20









 




hereunder, as required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.




     (d) Anything in this Section 3.5 to the contrary notwithstanding, any agreement of the Trustee
or any paying agent to hold sums in trust as provided in this Section 3.5 is subject to Sections
10.3 and 10.4.



     (e) Whenever the Issuer shall have one or more paying agents, it will, on or before 9:00 A.M.
on each due date of the principal of or interest, if any, on any Securities, deposit with a paying
agent a sum sufficient to pay the principal, premium, if any, or interest, if any, so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of its action or failure so to act.



ARTICLE FOUR

SECURITYHOLDERS LISTS AND REPORTS BY THE

ISSUER AND THE TRUSTEE




     SECTION 4.1. Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders. The Issuer and any other obligor on the Securities covenant and agree that they will furnish
or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require
of the names and addresses of the Holders of the Securities of each series:




     (a) semiannually and not more than 15 days after each January 1 and July 1, and




     (b) at such other times as the Trustee may request in writing, within 15 days after
receipt by the Issuer of any such request,


provided that if and so long as the Trustee shall be the registrar for such series, such list shall
not be required to be furnished.




     SECTION 4.2. Preservation and Disclosure of Securityholders Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of Securities (i) contained
in the most recent list furnished to it as provided in Section 4.1, and (ii) received by it in the
capacity of registrar or paying agent for such series, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 4.1 upon receipt of a new list so furnished.



     (b) The rights of Holders of each series of Securities to communicate with other Holders of
such series of Securities with respect to their rights under this Indenture or under the Securities
of such series, and the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.



     (c) Every Holder of Securities of any series, by receiving and holding the same, agrees with
the Issuer and the Trustee that neither the Issuer nor the Trustee nor any agent of any of
them shall be held accountable by reason of any disclosure of information as to names and
addresses of Holders of Securities of such series made pursuant to the Trust Indenture Act.



21









 





     SECTION 4.3. Reports by the Issuer. The Issuer covenants:



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



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



     (c) to transmit by mail to the Holders of Securities within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section 4.4(a), such summaries of any
information, documents and reports required to be filed by the Issuer pursuant to subsections (a)
and (b) of this Section 4.3 as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and



     (d) to furnish to the Trustee, not less than annually, an Officers’ Certificate from the
principal executive officer, principal financial officer or principal accounting officer as to his
knowledge of the Issuer’s compliance with all conditions and covenants under this Indenture. For
purposes of this subsection (d), such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.



     Delivery of the reports, information and documents referenced in Sections 4.3(a), (b) and (c)
to the Trustee is for informational purposes only and the Trustee’s receipt of them will not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Issuer’s compliance with any of its covenants in this
Indenture (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).



     SECTION 4.4. Reports by the Trustee. (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act of 1939 at the times
and in the manner provided pursuant thereto. To the extent that any such report is required by the
Trust Indenture Act of 1939 with respect to any 12 month period, such
report shall cover the 12 month period ending May 15 and shall be transmitted by the next
succeeding July 15.



     (b) A copy of each such report shall, at the time of such transmission to Securityholders, be
furnished to the Issuer and be filed by the Trustee with each stock exchange upon which the
Securities of any applicable series are listed and also with the Commission. The Issuer agrees to



22









 







promptly notify the Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.



ARTICLE FIVE

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT




     SECTION 5.1. Events of Default. “Event of Default”, wherever used herein with respect to Securities of any series, means any
one or more of the following events (whatever the reason for such Event of Default), unless it is
either inapplicable to a particular series or it is specifically deleted or modified in or pursuant
to the Board Resolution or supplemental indenture establishing such series of Securities or in the
form of Security, for such series:




     (a) default in the payment of the principal of or premium, if any, of the Securities of
such series as and when the same shall become due and payable either at maturity, upon
redemption, by declaration or otherwise; or




     (b) default in the payment of any installment of interest on any of the Securities of
such series as and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or




     (c) default in the payment or satisfaction of any sinking fund or other purchase
obligation with respect to Securities of such series, as and when such obligation shall
become due and payable; or




     (d) failure on the part of the Issuer or a Guarantor duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in or a Guarantor of, the
Securities of such series or in this Indenture continued for a period of 90 days after the
date on which written notice of such failure, requiring the Issuer or a Guarantor to remedy
the same, shall have been given by certified or registered mail to the Issuer or a Guarantor
by the Trustee, or to the Issuer or a Guarantor and the Trustee by the Holders of at least
25% in aggregate principal amount of the Securities of such series then Outstanding; or




     (e) without the consent of the Issuer, a court having jurisdiction shall enter an order
for relief with respect to the Issuer or any of its Significant Subsidiaries under any
applicable bankruptcy, insolvency or other similar law of the United States of America, any
state thereof or the District of Columbia, or without the consent of the Issuer, a court
having jurisdiction shall enter a judgment, order or decree adjudging the Issuer or any of
its Significant Subsidiaries bankrupt or insolvent, or enter an order for relief for
reorganization, arrangement, adjustment or composition of or in respect of the Issuer or
any of its Significant Subsidiaries under any applicable bankruptcy, insolvency or
other similar law of the United States of America, any state thereof or the District of
Columbia, and the continuance of any such judgment, order or decree is unstayed and in
effect for a period of 60 consecutive days; or




     (f) the Issuer or any of its Significant Subsidiaries shall institute proceedings for
entry of an order for relief with respect to the Issuer or any of its Significant
Subsidiaries



23









 







under any applicable bankruptcy, insolvency or other similar law of the United
States of America, any state thereof or the District of Columbia, or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency proceedings
against it, or shall file a petition seeking, or seek or consent to reorganization,
arrangement, composition or relief under any applicable bankruptcy, insolvency or other
similar law of the United States of America, any state thereof or the District of Columbia,
or shall consent to the filing of such petition or to the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or similar official of the Issuer or
of substantially all of its property, or the Issuer or any of its Significant Subsidiaries
shall make a general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the United States of America, any
state thereof or the District of Columbia; or




     (g) a Guarantee ceases to be in full force and effect (other than in accordance with
the terms of any Guarantee) or a Guarantor denies or disaffirms its obligations under the
Guarantee; or




     (h) any other Event of Default provided with respect to the Securities of such series.



     If an Event of Default with respect to Securities of any series then Outstanding occurs and is
continuing, then and in each and every such case, unless the principal of all of the Securities of
such series shall have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Securities of such series then Outstanding, by
notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the
principal (or, if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series) of all the
Securities of such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be immediately due and
payable, notwithstanding anything to the contrary contained in this Indenture or in the Securities
of such series. This provision, however, is subject to the condition that, if at any time after
the unpaid principal amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of interest, if any, upon
all of the Securities of such series and the principal of any and all Securities of such series
which shall have become due otherwise than by acceleration (with interest on overdue installments
of interest, if any, to the extent that payment of such interest is enforceable under applicable
law and on such principal at the rate borne by the Securities of such series to the date of such
payment or deposit) and the reasonable compensation, disbursements, expenses and advances of the
Trustee and all other amounts due the Trustee under Section 6.6, and any and all
defaults under this Indenture, other than the nonpayment of such portion of the principal
amount of and accrued interest, if any, on Securities of such series which shall have become due by
acceleration, shall have been cured or shall have been waived in accordance with Section 5.7 or
provision deemed by the Trustee to be adequate shall have been made therefor, then and in every
such case the Holders of a majority in aggregate principal amount of the Securities of such series
then Outstanding, by written notice to the Issuer and to the Trustee, may rescind and annul such



24









 







declaration and its consequences; but no such rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon. Notwithstanding the
previous sentence, no waiver shall be effective against any Holder for any Event of Default or
event which with notice or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of the Holder of each
outstanding Security affected thereby, unless all such affected Holders agree, in writing, to waive
such Event of Default or other event.



     If any Event of Default specified in Section 5.1(e) or 5.1(f) occurs with respect to the
Issuer, all unpaid principal amount (or, if the Securities of any series then Outstanding are
Original Issue Discount Securities, such portion of the principal amount as may be specified in the
terms of each such series) and accrued interest on all Securities of each series then Outstanding
shall ipso facto become and be immediately due and payable without any declaration or other act by
the Trustee or any Securityholder.



     If the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or
for any other reason or shall have been determined adversely to the Trustee, then and in every such
case the Issuer, the Trustee and the Securityholders shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such proceeding had been taken.



     Except with respect to an Event of Default pursuant to Section 5.1 (a), (b) or (c), the
Trustee shall not be charged with knowledge of any Event of Default unless written notice thereof
shall have been given to a Responsible Officer by the Issuer, a paying agent or any Securityholder.



     SECTION 5.2. Payment of Securities on Default; Suit Therefor. The Issuer covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when the same shall
become due and payable, and such default shall have continued for a period of 30 days, or (b) if
default shall be made in the payment of the principal of any of the Securities of such series as
and when the same shall have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of the Trustee, the
Issuer will pay to the Trustee, for the benefit of the Holders of the Securities, the whole amount
that then shall have become due and payable on all such Securities of such series for principal or
interest, if any, or both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) upon the overdue
installments of interest, if any, at the rate borne by the Securities of such series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents, attorneys
and counsel, and any expenses or liabilities incurred by the Trustee hereunder other than
through its negligence or bad faith.



     If the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its
own name and as trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceeding to judgment or final decree, and may enforce any



25









 







such
judgment or final decree against the Issuer or any other obligor on the Securities of such series
and collect in the manner provided by law out of the property of the Issuer or any other obligor on
the Securities of such series, wherever situated, the moneys adjudged or decreed to be payable.



     If there shall be pending proceedings for the bankruptcy or for the reorganization of the
Issuer or any other obligor on the Securities of any series then Outstanding under any bankruptcy,
insolvency or other similar law now or hereafter in effect, or if a receiver or trustee or similar
official shall have been appointed for the property of the Issuer or such other obligor, or in the
case of any other similar judicial proceedings relative to the Issuer or other obligor upon the
Securities of such series, or to the creditors or property of the Issuer or such other obligor, the
Trustee, irrespective of whether the principal of the Securities of such series shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section 5.2, shall be
entitled and empowered by intervention in such proceedings or otherwise to file and prove a claim
or claims for the whole amount of principal and interest, if any, owing and unpaid in respect of
the Securities of such series, and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and of the Securityholders allowed in such judicial proceedings relative to the Issuer
or any other obligor on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute the same after the deduction of its charges and expenses, and any
receiver, assignee or trustee or similar official in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the Trustee, and, if the Trustee
shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee
any amount due it for compensation and expenses or otherwise pursuant to Section 6.6, including
counsel fees and expenses incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses and counsel fees and expenses out of the estate
in any such proceedings 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 distributions, dividends, moneys, securities and
other property which the Holders of the Securities of such series may be entitled to receive in
such proceedings, whether in liquidation or under any plan of reorganization or arrangement or
otherwise.



     All rights of action and of asserting claims under this Indenture, or under any of the
Securities, may be enforced by the Trustee without the possession of any of the Securities, or the
production thereof at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.



     SECTION 5.3. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee pursuant to Section 5.2 with respect to Securities of any
series then Outstanding shall be applied in the order following, at the date or dates fixed by the
Trustee for the distribution of such moneys, upon presentation of the several Securities of such
series, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if
fully paid:



26









 






     FIRST: To the payment of costs and expenses of collection and reasonable compensation
to the Trustee, its agents, attorneys and counsel, and of all other expenses and liabilities
incurred, and all advances made, by the Trustee pursuant to Section 6.6 except as a result
of its negligence or bad faith;




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




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




     FOURTH: To the payment of any surplus then remaining to the Issuer, its successors or
assigns, or to whomsoever may be lawfully entitled to receive the same.



     No claim for interest which in any manner at or after maturity shall have been transferred or
pledged separate or apart from the Securities to which it relates, or which in any manner shall
have been kept alive after maturity by an extension (otherwise than pursuant to an extension made
pursuant to a plan proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent or approval of the
Issuer shall be entitled, in case of a default hereunder, to any benefit of this Indenture, except
after prior payment in full of the principal of all Securities of any series then Outstanding and
of all claims for interest not so transferred, pledged, kept alive, extended, purchased or funded.



     SECTION 5.4. Proceedings by Securityholders. No Holder of any Securities of any series then Outstanding shall have any right by virtue of
or by availing of any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other remedy hereunder,
unless such Holder previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding shall have made
written request to the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of



27









 







indemnity, shall have neglected or
refused to institute any such action, suit or proceeding, it being understood and intended, and
being expressly covenanted by the Holder of every Security of such series with every other Holder
and the Trustee, that no one or more Holders of Securities of such series shall have any right in
any manner whatever by virtue of or by availing of any provision of this Indenture or of the
Securities to affect, disturb or prejudice the rights of any other Holder of such Securities of
such series, or to obtain or seek to obtain priority over or preference as to any other such
Holder, or to enforce any right under this Indenture or the Securities, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of Securities of such series.



     Notwithstanding any other provisions in this Indenture, however, the right of any Holder of
any Security to receive payment of the principal of, premium, if any, and interest, if any, on such
Security, on or after the respective due dates expressed in such Security, or to institute suit for
the enforcement of any such payment on or after such respective dates shall not be impaired or
affected without the consent of such Holder.



     SECTION 5.5. Proceedings by Trustee. In case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceedings in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.



     SECTION 5.6. Remedies Cumulative and Continuing. All powers and remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Securityholders, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.4, every power and remedy given
by this Article Five or by law to the Trustee or to the Securityholders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.



     SECTION 5.7. Direction of Proceedings; Waiver of Defaults by Majority of Securityholders. The Holders
of a majority in aggregate principal amount of the Securities of any series then
Outstanding shall have the right to direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee
with respect to Securities of such series; provided, however, that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine upon advice of counsel that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, its executive
committee, or a trust committee of directors or Responsible Officers or both shall determine that
the action or proceeding so directed would involve the Trustee in personal



28









 







liability. The Holders
of a majority in aggregate principal amount of the Securities of any series then Outstanding may on
behalf of the Holders of all of the Securities of such series waive any past default or Event of
Default hereunder and its consequences except a default in the payment of interest, if any, on, or
the principal of, the Securities of such series. Upon any such waiver the Issuer, the Trustee and
the Holders of the Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.7, said default or Event of Default
shall for all purposes of the Securities and this Indenture be deemed to have been cured and to be
not continuing.



     SECTION 5.8. Notice of Defaults. The Trustee shall, within 90 days after the occurrence of a default, with respect to
Securities of any series then Outstanding, mail to all Holders of Securities of such series, as the
names and the addresses of such Holders appear upon the Securities register, notice of all defaults
known to the Trustee with respect to such series, unless such defaults shall have been cured before
the giving of such notice (the term “defaults” for the purpose of this Section 5.8 being hereby
defined to be the events specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section
5.1, not including periods of grace, if any, provided for therein and irrespective of the giving of
the written notice specified in said clause (d) but in the case of any default of the character
specified in said clause (d) no such notice to Securityholders shall be given until at least 60
days after the giving of written notice thereof to the Issuer pursuant to said clause (d));
provided, however, that, except in the case of default in the payment of the principal of or
interest, if any, on any of the Securities, or in the payment or satisfaction of any sinking fund
or other purchase obligation, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of directors or
Responsible Officers or both of the Trustee in good faith determines that the withholding of such
notice is in the best interests of the Securityholders.



     SECTION 5.9. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the cost of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of the Securities of
any series then Outstanding, or to any suit instituted by any Securityholders for the enforcement
of the payment of the principal of or interest, if any, on any Security against the Issuer on or
after the due date expressed in such Security.



ARTICLE SIX

CONCERNING THE TRUSTEE




     SECTION 6.1. Duties and Responsibilities of the Trustee; During Default; Prior to Default. In
case an Event of Default with respect to the Securities of a series has occurred



29









 







(which has
not been cured or waived) the Trustee shall exercise with respect to such series of Securities such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.



     No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that:




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




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




     (ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case
of any such statements, certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture;




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




     (c) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders pursuant to
Section 5.7 relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.



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



     SECTION 6.2. Certain Rights of the Trustee.



     Subject to Section 6.1:




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



     (b) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate or Issuer Order (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a Board Resolution;



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



     (d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture (including, without limitation, pursuant to Section 5.7), unless
such Securityholders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or thereby;



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



     (f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not less than a majority
in aggregate principal amount of the Securities of all series affected then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer upon
demand;



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



     (h) the Trustee shall not be charged with knowledge of any default or Event of Default with
respect to a series of Securities unless either (i) a Responsible Officer of the Trustee



31









 




assigned to the Corporate Trust Office of the Trustee (or any successor division or department of
the Trustee) shall have actual knowledge of such default or Event of Default or (ii) written notice
of such default or Event of Default shall have been given to the Trustee by the Issuer or any other
obligor on such series of Securities or by any Holder of Securities of such series;




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



     (j) the permissive rights of the Trustee hereunder shall not be construed as duties;



     (k) in no event shall the Trustee be liable for any consequential, special, punitive or
indirect loss or damages, even if advised of the likelihood thereof in advance and regardless of
the form of action;



     (l) 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 to each agent, custodian and
other Person employed to act hereunder;



     (m) the Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the
name of the individuals and/or titles of Officers authorized at such time to take specific 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
Officers’ Certificate previously delivered and not superseded; and



     (n) the Trustee shall not be responsible for delays or failures in performance of its
obligations hereunder resulting from acts beyond its reasonable control. Such acts shall include
but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental
regulations superimposed after the fact, fire, communication line failures, computer viruses, power
failures, earthquakes, terrorist attacks or other disasters, it being understood that the Trustee
shall use reasonable best efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.



     SECTION 6.3. Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof.
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any prospectus used to sell the
Securities. The Trustee shall not be accountable for the use or application by the Issuer of any
of the Securities or of the proceeds thereof.



     SECTION 6.4. Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it would have if it
were not the Trustee or such agent and, subject to Sections 6.8 and 6.13, may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.



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     SECTION 6.5. Moneys Held by Trustee. Subject to the provisions of Section 10.4 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent required by mandatory
provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be under
any liability for interest on any moneys received by it hereunder.



     SECTION 6.6. Compensation and Indemnification of Trustee and Its Prior Claim.
The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall
be entitled to, such compensation as shall be agreed to in writing between the Issuer and the
Trustee (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee
and each predecessor Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants
to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against, any and
all loss, liability, damage, claim or expense, including taxes (other than taxes based on the
income of the Trustee), incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against or investigating any
claim or liability in the premises. The obligations of the Issuer under this Section 6.6 to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of particular Securities. When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in
Section 5.1 or in connection with Article Five hereof, the expenses (including the reasonable fees
and expenses of its counsel) and the compensation for the service in connection therewith are
intended to constitute expenses of administration under any bankruptcy law. The provisions of this
Section 6.6 shall survive the resignation or removal of the Trustee and the termination of this
Indenture.



     SECTION 6.7. Right of Trustee to Rely on Officers’ Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this Indenture upon the
faith thereof.



33









 





     SECTION 6.8. Qualification of Trustee; Conflicting Interests.
This Indenture shall always have a Trustee who satisfies the requirements of Section 310(a)(1)
of the Trust Indenture Act of 1939. The Trustee shall have a combined capital and surplus of at
least $25,000,000 as set forth in its most recent published annual report of condition. The
Trustee shall comply with Section 310(b) of the Trust Indenture Act of 1939 regarding
disqualification of a trustee upon acquiring a conflicting interest.



     SECTION 6.9. Persons Eligible for Appointment as Trustee; Different Trustees for Different
Series.
The Trustee for each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or of any state thereof
or the District of Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by federal, state or District of Columbia authority, or a corporation or
other Person permitted to act as trustee by the Commission. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section 6.9, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No obligor upon the Securities or any Affiliate of such
obligor shall serve as trustee upon the Securities. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 6.9, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.



     A different Trustee may be appointed by the Issuer for each series of Securities prior to the
issuance of such Securities. If the initial Trustee for any series of Securities is to be a
trustee other than Wilmington Trust Company, the Issuer and such Trustee shall, prior to the
issuance of such Securities, execute and deliver an indenture supplemental hereto, which shall
provide for the appointment of such Trustee as Trustee for the Securities of such series and shall
add to or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such Trustee.



     SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with
respect to one or more or all series of Securities by giving written notice of resignation to the
Issuer. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written instrument
in duplicate, executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning trustee and one copy to the successor trustee or trustees. If
no successor trustee shall have been so appointed with respect to any series of Securities and have
accepted appointment within 30 days after the mailing of such notice of resignation, the resigning
trustee may petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the
applicable series for at least six months may, subject to the provisions of Section 5.9, on behalf
of himself and all others similarly situated, petition any such court for the appointment of a
successor



34









 




trustee. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.




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




     (i) the Trustee shall fail to comply with the provisions of Section 6.8 with respect to
any series of Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or Securities of such series
for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.9 and shall fail to resign after written request therefor by the Issuer or by any
such Securityholder; or




     (iii) the Trustee shall become incapable of acting with respect to any series of
Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;


then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Article
Five, any Securityholder who has been a bona fide Holder of a Security or Securities of such series
for at least six months may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to such series. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor trustee.




     (c) The Holders of a majority in aggregate principal amount of the Securities of each series
then Outstanding may at any time remove the Trustee with respect to Securities of such series and
appoint a successor trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided
for in Section 7.1 of the action in that regard taken by the Securityholders. If no successor
trustee shall have been so appointed with respect to any series and have accepted appointment
within 30 days after the delivery of such evidence of removal, the Trustee may petition any court
of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has
been a bona fide Holder of a Security or Securities of the applicable series for at least six
months may, subject to the provisions of Section 5.9, on behalf of himself
and all others similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.



     (d) Any resignation or removal of the Trustee with respect to any series of Securities and any
appointment of a successor trustee with respect to such series pursuant to any of the



35









 




provisions of
this Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.




     SECTION 6.11. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee with respect to all or any
applicable series shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all rights, powers, duties and obligations with respect to
such series of its predecessor hereunder, with like effect as if originally named as trustee for
such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to
Section 10.4, pay over to the successor trustee all moneys at the time held by it hereunder and
shall execute and deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.



     If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor Trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of
any series as to which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust
or trusts under separate indentures.



     No successor trustee with respect to any series of Securities shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.8 and eligible under the provisions of Section 6.9.



     Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the
Issuer shall give notice thereof to the Holders of Securities of each series affected, by mailing
such notice to such Holders at their addresses as they shall appear on the Securities register. If
the Issuer fails to give such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be given at the
expense of the Issuer.



     SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of



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the
corporate trust business of the Trustee (including the trust created by this Indenture), shall be
the successor of the Trustee hereunder, provided that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9, without the execution
or filing of any paper or any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.




     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture and any of the Securities of any series shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate of authentication shall have the full
force as if such successor Trustee had itself authenticated such Securities; provided, that the
right to adopt the certificate of authentication of any predecessor Trustee or to authenticate
Securities of any series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.



     SECTION 6.13. Preferential Collection of Claims Against the Issuer.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act of 1939. A Trustee who
has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act of 1939
to the extent indicated therein.



     SECTION 6.14. Appointment of Authenticating Agent.
As long as any Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the “Authenticating
Agent”) which shall be authorized to act on behalf of the Trustee to authenticate Securities,
including Securities issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such Authenticating Agent shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication
and delivery of Securities of any series by the Trustee or to the Trustee’s Certificate of
Authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent for such series and a Certificate of Authentication executed
on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the
laws of the United States of America or of any state thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $25,000,000 (determined as provided in Section 6.9 with respect to the Trustee)
and subject to supervision or examination by federal or state authority.



     Any corporation into which any Authenticating Agent may be merged or converted, or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency business (including the authenticating agency contemplated by this Indenture) of any
Authenticating Agent, shall continue to be the Authenticating Agent with



37









 




respect to all series of
Securities for which it served as Authenticating Agent without the execution or filing of any paper
or any further act on the part of the Trustee or such Authenticating Agent. Any Authenticating
Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice
of resignation to the Trustee and to the Issuer. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer.




     Upon receiving such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14 with respect to one or more series of Securities, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and to the extent
provided in Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Issuer
agrees to pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction of the Trustee.



     Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any Authenticating Agent.



ARTICLE SEVEN

CONCERNING THE SECURITYHOLDERS




     SECTION 7.1. Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in principal amount of
the Securityholders of any or all series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such specified percentage of Securityholders
in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this Article Seven.



     SECTION 7.2. Proof of Execution of Instruments and of Holding of Securities.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a Securityholder or his
agent or proxy may be proved in the following manner:




     (a) The fact and date of the execution by any Holder of any instrument may be proved by
the certificate of any notary public or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the same.



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     (b) The ownership of Securities shall be proved by the Security register or by a
certificate of the Security registrar.



     SECTION 7.3. Holders to be Treated as Owners.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of this Indenture,
interest, if any, on such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary.



     SECTION 7.4. Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal amount of Outstanding
Securities of any or all series have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such determination, except that
for the purpose of determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which a Responsible Officer of the Trustee knows are
so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the pledgee is not the Issuer or any other
obligor upon the Securities or any Affiliate of the Issuer or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full protection in respect of
any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of any such
determination.



     SECTION 7.5. Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this Indenture in connection
with such action, any Holder of a Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the Holders of which have consented to such
action may, by filing written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article Seven, revoke such action so far as concerns such Security provided that
such revocation shall not become effective until three Business Days after such filing. Except as
aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof, irrespective of whether
or not any notation in regard thereto is made upon any such Security. Any action taken by the
Holders of



39









 




the percentage in aggregate principal amount of the Securities of any or all series, as
the case may be, specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.




     SECTION 7.6. Record Date for Consents and Waivers.
The Issuer may, but shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to the Securities of
such series in accordance with Section 5.7 of the Indenture, (ii) consent to any supplemental
indenture in accordance with Section 8.2 of the Indenture or (iii) waive compliance with any term,
condition or provision of any covenant hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and any such Persons, shall be entitled to waive any
such past default, consent to any such supplemental indenture or waive compliance with any such
term, condition or provision, whether or not such Holder remains a Holder after such record date;
provided, however, that unless such waiver or consent is obtained from the Holders, or duly
designated proxies, of the requisite principal amount of Outstanding Securities of such series
prior to the date which is the 120th day after such record date, any such waiver or consent
previously given shall automatically and, without further action by any Holder be cancelled and of
no further effect.



ARTICLE EIGHT

SUPPLEMENTAL INDENTURES




     SECTION 8.1. Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a Board Resolution (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution
thereof) for one or more of the following purposes:




     (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;




     (b) to evidence the succession of another Person to the Issuer or successive
successions, and the assumption by the successor Person of the covenants, agreements and
obligations of the Issuer herein and in the Securities or the Guarantees or to otherwise
evidence compliance with Article Nine hereof;




     (c) to add to the covenants of the Issuer such further covenants, restrictions,
conditions or provisions for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are to be for the
protection of less than all series of Securities, stating that the same are expressly being
included solely for the protection of such series), or to surrender any right or power
herein conferred upon the Issuer, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, however, that in respect
of any such additional covenant, restriction, condition or provision such supplemental



40









 






indenture may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the remedies available to
the Trustee upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such series to waive such an
Event of Default;




     (d) to cure any ambiguity or to correct or supplement any provision contained herein or
in any supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture;




     (e) to establish the form or terms of Securities or the Guarantees to be endorsed
thereon of any series as permitted by Sections 2.1 and 2.3, to provide for any Guarantees of
the Securities of any series and to confirm and evidence the termination or discharge of any
Guarantee of or mortgage, lien, pledge, charge, security interest or encumbrance securing
the Securities of a series when such release, termination or discharge is permitted by the
Indenture;




     (f) to provide for the issuance of uncertificated Securities of any series (including
Securities registrable as to principal only) in addition to or in place of certificated
Securities and to provide for exchangeability of such Securities for the Securities issued
hereunder in fully registered form and to make all appropriate changes for such purpose;




     (g) to modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to effect the qualification of this Indenture under the Trust Indenture
Act of 1939, or under any similar federal statute hereafter enacted, and to add to this
Indenture such other provisions as may be expressly permitted by the Trust Indenture Act of
1939, excluding, however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act of 1939 as in effect at the date as of which this instrument was executed or
any corresponding provision provided for in any similar federal statute hereafter enacted;




     (h) to evidence and provide for the acceptance of appointment hereunder of a Trustee
other than Wilmington Trust Company as Trustee for a series of Securities and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.9 hereof;




     (i) subject to Section 8.2 hereof, to add to or modify the provisions hereof as may be
necessary or desirable to provide for the denomination of Securities in foreign currencies
which shall not adversely affect the interests of the Holders of the Securities in any
material respect;




     (j) to modify the covenants or Events of Default of the Issuer solely in respect of, or
add new covenants or Events of Default of the Issuer that apply solely to, Securities not
Outstanding on the date of such supplemental indenture;




     (k) 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



41









 






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 6.11;




     (l) to conform the text of this Indenture, the Securities of any series or the
Guarantees to any provision of the “Description of Debt Securities” section of any
prospectus or the comparable section in any applicable prospectus supplement that is used to
sell the Securities of such series to the extent that such provision was intended to be a
verbatim recitation of a provision of this Indenture, the Securities of such series sold
thereby or the Guarantees thereof; and




     (m) to make any other change that does not adversely affect the legal rights of any
Holder of Securities of the series affected by such change.



     The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.



     Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the Holders of any of the Securities then Outstanding, notwithstanding any
of the provisions of Section 8.2.



     SECTION 8.2. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article Seven and including written consents
obtained in connection with a tender offer or exchange offer) of the Holders of not less than a
majority in aggregate principal amount of the Securities then Outstanding of any series affected
thereby, the Issuer, when authorized by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer Order), and the
Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the
date of execution thereof) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such series or waiving
future compliance with any provision of the Indenture or the Securities (other than a continuing
default or Event of Default in the payment of principal of or interest on Securities, which shall
require the consent of the Holders of each Security so affected); provided, that no such
supplemental indenture or waiver shall (a) change the stated final maturity of the principal of any
Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment
of interest (including default interest), if any, thereon (or, in the case of an Original Issue
Discount Security, reduce the rate of accretion of original issue discount thereon), or reduce or
alter the method of computation of any amount payable on redemption, repayment or purchase by the
Issuer thereof (or the time at which any such redemption, repayment or purchase may be made), or
make the principal thereof (including any amount in respect of original issue discount), or
interest, if any, thereon



42









 




payable in any coin or currency other than that provided in the
Securities or in accordance with the terms of the Securities, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant to
Section 5.2, make any change to Sections 5.4 or 5.7, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the Securities provide therefor,
any right of repayment or purchase at the option of the Securityholder, in each case without the
consent of the Holder of each Security so affected or modify the ranking or priority of the
Securities or the Guarantees issued hereunder, or (b) reduce the aforesaid percentage of Securities
of any series, the consent of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so affected. No consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and the Issuer to execute
supplemental indentures pursuant to Sections 8.1 and 9.2.




     A supplemental indenture which changes or eliminates any covenant, Event of Default 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 Holders of Securities of such
series, with respect to such covenant or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.



     Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may at its discretion, but shall not be
obligated to, enter into such supplemental indenture.



     It shall not be necessary for the consent of the Securityholders under this Section 8.2 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.



     Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 8.2, the Issuer (or the Trustee at the request and
expense of the Issuer) shall give notice thereof to the Holders of then Outstanding Securities of
each series affected thereby, as provided in Section 11.4. Any failure of the Issuer to give such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.



     SECTION 8.3. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and shall be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Issuer, the Guarantors and the Holders of Securities of each series affected
thereby shall



43









 




thereafter be determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms and conditions of any such supplemental
indenture shall be and shall be deemed to be part of the terms and conditions of this Indenture for
any and all purposes.




     SECTION 8.4. Documents to Be Given to Trustee.
The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall be entitled to receive
an Officers’ Certificate and an Opinion of Counsel as provided in Section 11.5 as conclusive
evidence that any supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture and that all conditions precedent to the execution and
delivery of such supplemental indenture have been satisfied. An Opinion of Counsel pursuant to
this Section 8.4 shall also include (a) an opinion that any such supplemental indenture has been
duly authorized, executed and delivered and constitutes the valid and legally binding obligation of
the Issuer and the Guarantors party thereto, if any, enforceable in accordance with its terms and
(b) in the case of 8.1(m) an opinion that such supplemental indenture does not adversely affect the
legal rights of any Holder of Securities of the series affected by such change. In rendering such
opinion, such counsel may qualify any opinions as to enforceability by stating that such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
liquidation, moratorium and other similar laws relating to or affecting the rights and remedies of
creditors and is subject to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.



     SECTION 8.5. Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article Eight may bear a notation in form approved by
the Trustee for such series as to any matter provided for by such supplemental indenture or as to
any action taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the Trustee
and the Issuer, to any modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Issuer, and such Securities may be authenticated by
the Trustee and delivered in exchange for the Securities of such series then Outstanding.



ARTICLE NINE

CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER

DISPOSITION




     SECTION 9.1. Consolidation Permitted, etc., on Certain Terms.
Subject to the provisions of Section 9.2, nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Issuer with or into any other Person or
Persons (whether or not affiliated with the Issuer), or successive consolidations or mergers in
which the Issuer or its successor or successors shall be a party or parties, or shall prevent any
sale, lease, exchange or other disposition of all or substantially all the property and assets of
the Issuer to any other Person (whether or not affiliated with the Issuer) authorized to acquire
and operate the same; provided, however, and the Issuer hereby covenants and agrees, that any such
consolidation, merger, sale, lease, exchange or other disposition shall be upon the conditions that
(a) immediately after giving effect to such consolidation, merger, sale, lease, exchange or other



44









 




disposition of the Person (whether the Issuer or such other Person) formed by or surviving any such
consolidation or merger, or to which such sale, lease, exchange or other disposition shall have
been made, no Event of Default, and no event which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the Person (if other than
the Issuer) formed by or surviving any such consolidation or merger, or to which such sale, lease,
exchange or other disposition shall have been made, shall be a corporation or partnership organized
under the laws of the United States of America, any state thereof or the District of Columbia; and
(c) the due and punctual payment of the principal of, premium, if any, and interest, if any, on all
the Securities, according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the Issuer, shall be
expressly assumed, by supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee, by the Person (if other than the Issuer) formed by such consolidation, or
into which the Issuer shall have been merged, or by the Person which shall have acquired or leased
such property.




     SECTION 9.2. Successor Corporation to be Substituted.
In case of any such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the successor Person, by
supplemental indenture executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of, premium, if any, and interest, if
any, on all of the Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor Person shall succeed to
and be substituted for the Issuer, with the same effect as if it had been named herein as the party
of the first part, and the Issuer (including any intervening successor to the Issuer which shall
have become the obligor hereunder) shall be relieved of any further obligation under this Indenture
and the Securities; provided, however, that in the case of a sale, lease, exchange or other
disposition of the property and assets of the Issuer (including any such intervening successor),
the Issuer (including any such intervening successor) shall continue to be liable on its
obligations under this Indenture and the Securities to the extent, but only to the extent, of
liability to pay the principal of, premium, if any, and interest, if any, on the Securities at the
time, places and rate prescribed in this Indenture and the Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the name of the
Issuer, any or all of the Securities issuable hereunder which theretofore shall not have been
signed by the Issuer and delivered to the Trustee; and, upon the order of such successor Person
instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall
have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had been issued at the
date of the execution hereof.



     In case of any such consolidation or merger or any sale, lease, exchange or other disposition
of all or substantially all of the property and assets of the Issuer, such changes in phraseology
and form (but not in substance) may be made in the Securities, thereafter to be issued, as may be
appropriate.



45









 





     SECTION 9.3. Opinion of Counsel to be Given Trustee.
The Trustee, subject to Sections 6.1 and 6.2, shall receive an Officers’ Certificate and
Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, lease,
exchange or other disposition and any such assumption complies with the provisions of this Article
Nine.



ARTICLE TEN

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




     SECTION 10.1. Applicability of Article.
Unless specified otherwise pursuant to Section 2.3 for Securities of a series, this Article
shall apply to each series of Securities issued under this Indenture.



     SECTION 10.2. Legal Defeasance and Discharge.
The Issuer shall, subject to the satisfaction of the conditions set forth in Section 10.4
hereof, be deemed to have been discharged from its obligations with respect to the Outstanding
Securities of any series on the date the conditions set forth below are satisfied with respect to
such series (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the
Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the
Outstanding Securities of any series, which shall thereafter be deemed to be Outstanding only for
the purposes of Section 10.5 hereof and the other Sections of this Indenture referred to in clauses
(a) and (b) below, and to have satisfied all of its obligations under such Securities and this
Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments delivered to it by the Issuer acknowledging the same), except of the following
provisions which shall survive until otherwise terminated or discharged hereunder;
(a) the rights of Holder of Outstanding Securities of such series to receive payments in
respect of the principal of, premium, if any, and interest on such Securities when such payments
are due from the trust referred to below; (b) the Issuer’s obligations with respect to the
Securities concerning mutilated, destroyed, lost or stolen Securities and the maintenance of an
office or agency for payment and money for security payments held in trust; (c) the rights, powers,
trusts, duties and immunities of the Trustee, and the Issuer’s obligations in connection therewith;
and (d) the Legal Defeasance provisions of this Indenture.



     SECTION 10.3. Covenant Defeasance.
The Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth
in Section 10.4 hereof, be released from their obligations under the covenants contained in Article
Nine (other than Section 9.1(c)) and, to the extent described in the applicable supplemental
indenture, with respect to the covenants of any series of Securities, on and after the date that
the conditions set forth in Section 10.4 are satisfied with respect to such series (hereinafter,
“Covenant Defeasance”), and the Securities of such series shall thereafter be deemed not
Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants, but shall continue to be
deemed Outstanding for all other purposes hereunder (it being understood that such Securities shall
not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means
that, with respect to the Outstanding Securities of any series, the Issuer may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such



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covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an Event of Default
under Section 5.1 hereof, but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby. Subject to the satisfaction of the conditions set forth in
Section 10.4 hereof, Sections 5.1(d), 5.1(e), 5.1(f) and 5.1(g) hereof shall not constitute Events
of Default or defaults hereunder.




     SECTION 10.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 10.2 or 10.3 hereof
to the Outstanding Securities of any series:



     In order to exercise either Legal Defeasance or Covenant Defeasance:



     (a) the Issuer must irrevocably deposit, or cause to be deposited, with the Trustee, in trust,
for the benefit of the Holders of the Securities of a particular series, cash in U.S. dollars, U.S.
Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants, to pay, without
reinvestment, the principal of, premium, if any, and interest on the Outstanding Securities of such
series on the stated maturity thereof or on the applicable redemption date, as the case may be, and
the Issuer must specify whether the Securities are being defeased to maturity or to a particular
redemption date;



     (b) in the case of Legal Defeasance, the Issuer must deliver to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling, or there has been a change
in the applicable United States federal income tax law after the date of this Indenture, in either
case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of the Outstanding Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such Legal Defeasance, and will be subject to
United States federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;




     (c) in the case of Covenant Defeasance, the Issuer must deliver to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such Covenant Defeasance, and such Holders will be subject to United
States federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;



     (d) no default or Event of Default shall have occurred and be continuing on the date of such
deposit (other than a default or Event of Default resulting from the borrowing of funds to be
applied to such deposit) or insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date of deposit;



     (e) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under, any material agreement or instrument (other than the Indenture) to
which the Issuer or any of its Restricted Subsidiaries is a party or by which the issuer or any of
its Restricted Subsidiaries is bound;



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     (f) the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit
was not made by the Issuer with the intent of preferring the Holders of the Securities over other
creditors of the Issuer, or with the intent of defeating, hindering, delaying or defrauding
creditors of the Issuer or others;



     (g) the Issuer must deliver to the Trustee an Officers’ Certificate and an opinion of Counsel
in the United States reasonably acceptable to the Trustee, each stating that the conditions
precedent provided for or relating to Legal Defeasance or Covenant Defeasance, as applicable, in
the case of the Officers’ Certificate, in clauses (a) through (f) and, in the case of the opinion
of Counsel, in clauses (b) and (c) of this paragraph, have been complied with.



     SECTION 10.5. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.
Subject to Section 10.6 hereof, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively, and solely
for purposes of this Section 10.5, the “Trustee”) pursuant to Section 10.4 hereof in respect of the
Outstanding Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any paying agent (including the Issuer acting as paying agent) as the Trustee
may determine, to the Holders of such Securities of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.



     The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to
Section 10.4 hereof in respect of any series of Securities or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is for the account of
the Holders of the Outstanding Securities of such series.



     Anything in this Article Ten to the contrary notwithstanding, the Trustee shall deliver or pay
to the Issuer from time to time upon the request of the Issuer any money or non-callable U.S.
Government Obligations held by it as provided in Section 10.4 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 10.4(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.



     SECTION 10.6. Repayment to Issuer.
Any money deposited with the Trustee or any paying agent, or then held by the Issuer, in trust
for the payment of the principal of, premium or interest on any Security and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become due and payable
shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured creditor, look only
to the Issuer for payment thereof, and all liability of the Trustee or such paying agent with
respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being required to make any
such repayment, may at the expense of the Issuer cause to be published once, in the New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date



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specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Issuer.




     SECTION 10.7. Reinstatement.
If the Trustee or paying agent is unable to apply any money or non-callable U.S. Government
Obligations in accordance with Section 10.2 or 10.3 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.2 or 10.3
hereof until such time as the Trustee or paying agent is permitted to apply all such money in
accordance with Section 10.2 or 10.3 hereof, as the case may be; provided, however, that, if the
Issuer makes any payment of principal of, premium, if any, or interest on any Security following
the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee or paying agent.



     SECTION 10.8. Survival.
The Trustee’s rights under this Article Ten shall survive termination of this Indenture.



     SECTION 10.9. Satisfaction and Discharge of Indenture.
If at any time (a)(i) the Issuer shall have paid or caused to be paid the principal of,
premium, if any, and interest, if any, on all the Securities Outstanding of any series (other than
Securities which have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due and payable, or (ii) the Issuer
shall have delivered to the Trustee for cancellation all Securities of any series theretofore
authenticated (other than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9), or (b)(i) the Securities of any series mature within
one year, or all of them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii) the Issuer irrevocably
deposits in trust with the Trustee, as trust funds solely for the benefit of the Holders, money or
U.S. Government Obligations or a combination thereof sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certificate delivered to
the Trustee, without consideration of any reinvestment, to pay principal of and premium and
interest on the Securities to maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, (iii) no Event of Default has occurred and is continuing on the date of
the deposit, (iv) the deposit will not result in a breach or violation of, or constitute a default
under, the Indenture or any other agreement or instrument to which the Issuer is a party or by
which it is bound, and (v) the Issuer delivers to the Trustee an Officers’ Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating
to the satisfaction and discharge of the Indenture have been complied with; and if, in any such
case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer
(including all amounts, payable to the Trustee pursuant to Section 6.6), then, (x) after satisfying
the conditions in clause (a), only the Issuer’s obligations under Sections 6.6 and 10.5, as
applicable, will survive or (y) after satisfying the conditions in clause (b), only the Issuer’s or
obligations in Article Two and Sections 3.1, 3.2, 6.6, 6.10, 10.5, 10.6 and 10.7 will survive, and,
in either case, the Trustee, on demand of the Issuer accompanied by an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent relating to the satisfaction and
discharge contemplated by this provision have been complied with, and at the cost and expense of
the Issuer, shall execute proper



49









 




instruments acknowledging such satisfaction and discharging of
this Indenture. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred, and to compensate the Trustee for any services thereafter
reasonably and properly rendered, by the Trustee in connection with this Indenture or the
Securities.




ARTICLE ELEVEN

MISCELLANEOUS PROVISIONS




     SECTION 11.1. Partners, Incorporators, Stockholders, Officers and Directors of Issuer Exempt
from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder, officer, director or
employee, as such, of the Issuer or the Guarantors or any partner of the Issuer or the Guarantors
or of any successor, either directly or through the Issuer or the Guarantors or any successor,
under any rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities.



     SECTION 11.2. Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities.
Nothing in this Indenture or in the Securities, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the Holders of the Securities.



     SECTION 11.3. Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture contained by or on
behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.



     SECTION 11.4. Notices and Demands on Issuer, Trustee and Holders of Securities.
Any notice or demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Holders of Securities to or on the Issuer, or as required
pursuant to the Trust Indenture Act of 1939, may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to Hovnanian Enterprises,
Inc., 110 West Front Street, P.O. Box 500, Red Bank, New Jersey 07701. Any notice, direction,
request or demand by the Issuer or any Holder of Securities to or upon the Trustee shall be deemed
to have been sufficiently given or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed (until another address of the Trustee
is filed by the Trustee with the Issuer) to Wilmington Trust Company, Rodney Square North, 1100
North Market Street, Wilmington, DE 19890 [specify series of Securities]).



     Where this Indenture provides for notice to Holders of Securities, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in
the Security register. Where this Indenture provides for notice in any manner, such notice may be



50









 




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




     In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be sufficient notice.



     SECTION 11.5. Officers’ Certificates and Opinions of Counsel; Statements to Be Contained
Therein.
Upon any application or demand by the Issuer to the Trustee to take any action under any of
the provisions of this Indenture, or as required pursuant to the Trust Indenture Act of 1939, the
Issuer shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion need be furnished.



     Each certificate or opinion provided for in this Indenture (other than a certificate provided
pursuant to Section 4.3(d)) and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable him to express an
opinion as to whether or not such covenant or condition has been complied with, and (d) a statement
as to whether or not, in the opinion of such person, such condition or covenant has been complied
with.



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



     Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Issuer unless such



51









 




officer or counsel, as
the case may be, knows that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.




     Any certificate or opinion of any independent firm of public accountants filed with and
directed to the Trustee shall contain a statement that such firm is independent.



     SECTION 11.6. Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of principal of or interest, if any, on the Securities of any series
or the date fixed for redemption, purchase or repayment of any such Security shall not be a
Business Day, then payment of interest, if any, premium, if any, or principal need not be made on
such date, but may be made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, purchase or repayment, and, in the
case of payment, no interest shall accrue for the period after such date.



     SECTION 11.7. Conflict of Any Provision of Indenture with Trust Indenture Act of 1939.
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to be included herein by any of
Sections 310 to 317 of the Trust Indenture Act of 1939, inclusive, or is deemed applicable to this
Indenture by virtue of the provisions of the Trust Indenture Act of 1939, such required provision
shall control.



     SECTION 11.8. GOVERNING LAW.
THIS INDENTURE, EACH SECURITY AND EACH GUARANTEE SHALL BE DEEMED TO BE A CONTRACT UNDER THE
LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SUCH STATE.



     SECTION 11.9. Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same instrument.



     SECTION 11.10. Effect of Headings.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



     SECTION 11.11. No Adverse Interpretation of Other Agreements.
The Indenture may not be used to interpret another indenture or loan or debt agreement of the
Issuer or any subsidiary of the Issuer, and no such indenture or loan or debt agreement may be used
to interpret the Indenture.



ARTICLE TWELVE

REDEMPTION OF SECURITIES AND SINKING FUNDS




     SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for Securities of such series.



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     SECTION 12.2. Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or
in part at the option of the Issuer shall be given by mailing notice of such redemption by first
class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities of such series at their last addresses as they shall
appear in the Security register. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.



     The notice of redemption to each such Holder shall specify (i) the principal amount of each
Security of such series held by such Holder to be redeemed, (ii) the date fixed for redemption,
(iii) the redemption price, (iv) the place or places of payment, (v) the CUSIP number relating to
such Securities, (vi) that payment will be made upon presentation and surrender of such Securities,
(vii) whether such redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, (viii) whether interest, if any, (or, in the case of Original Issue Discount
Securities, original issue discount) accrued to the date fixed for redemption will be paid as
specified in such notice and (ix) whether on and after said date interest, if any, (or, in the case
of Original Issue Discount Securities, original issue discount) thereon or on the portions thereof
to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.



     The notice of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at
the expense of the Issuer.



     On or before the redemption date specified in the notice of redemption given as provided in
this Section 12.2, the Issuer will deposit with the Trustee or with one or more paying agents (or,
if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided
in Section 3.5) an amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price, together with accrued
interest, if any, to the date fixed for redemption. The Issuer will deliver to the Trustee at
least 45 days prior to the date fixed for redemption (unless a shorter notice period shall be
satisfactory to the Trustee) an Officers’ Certificate stating the aggregate principal amount of
Securities to be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to the Trustee, prior to
the giving of any notice of redemption to Holders pursuant to this Section, an Officers’
Certificate stating that such restriction has been complied with.



     If less than all the Securities of a series are to be redeemed, the Trustee, within 10
Business Days after the Issuer gives written notice to the Trustee that such redemption is to
occur, shall select on a pro rata basis, by lot or in such manner as it shall deem, in its sole
discretion, appropriate and fair, Securities of such series to be redeemed. Notice of the



53









 




redemption shall be given only after such selection has been made. Securities may be redeemed
in part in denominations of $2,000 and multiples of $1,000 in excess thereof in original principal
amount of Securities, unless another minimum authorized denomination is specified for Securities of
such series, or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities of such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all provisions relating to the
redemption of Securities of any series shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Security which has been or is
to be redeemed.




     SECTION 12.3. Payment of Securities Called for Redemption.
If notice of redemption has been given as provided by this Article Twelve, the Securities or
portions of Securities specified in such notice shall become due and payable on the date and at the
place or places stated in such notice at the applicable redemption price, together with interest,
if any accrued to the date fixed for redemption, and on and after said date (unless the Issuer
shall default in the payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue Discount Securities,
original issue discount), on the Securities or portions of Securities so called for redemption
shall cease to accrue, and such Securities shall cease from and after the date fixed for redemption
(unless an earlier date shall be specified in a Board Resolution, Officers’ Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the form and
terms of the Securities of such series were established) except as provided in Sections 6.5 and
10.4, to be entitled to any benefit or security under this Indenture, and the Holders thereof shall
have no right in respect of such Securities except the right to receive the redemption price
thereof and unpaid interest, if any, to the date fixed for redemption. On presentation and
surrender of such Securities at a place of payment specified in said notice, said Securities or the
specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption
price, together with interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming due on or prior to the date fixed for redemption shall
be payable to the Holders of Securities registered as such on the relevant record date subject to
the terms and provisions of Sections 2.3 and 2.7 hereof.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the redemption price shall, until paid or duly provided for, bear interest from the
date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original
Issue Discount Security) borne by such Security.



     Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, and of like tenor, of authorized
denominations, in principal amount equal to the unredeemed portion of the Security so presented.



     SECTION 12.4. Exclusion of Certain Securities from Eligibility for Selection for Redemption.
Securities shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in an Officers’ Certificate delivered to the



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Trustee at least 45 days prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer, or
(b) a Person specifically identified in such written statement as an Affiliate of the Issuer.




     SECTION 12.5. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess
of such minimum amount provided for by the terms of the Securities of any series is herein referred
to as an “optional sinking fund payment.” The date on which a sinking fund payment is to be made
is herein referred to as the “sinking fund payment date.”



     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit
for optional sinking fund payments (not previously so credited) made pursuant to this Section 12.5,
or (c) receive credit for Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of such series. Securities
so delivered or credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.



     On or before the 60th day next preceding each sinking fund payment date for any series, the
Issuer will deliver to the Trustee an Officers’ Certificate (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied
by credit of Securities of such series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such series have occurred
(which have not been waived or cured or otherwise ceased to exist) and are continuing, and (d)
stating whether or not the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date.
Any Securities of such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the Trustee the
Issuer shall become unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the
Issuer, on or before any such 60th day, to deliver such Officers’ Certificate and Securities
(subject to the parenthetical clause in the second preceding sentence) specified in this paragraph,
if any, shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (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 Issuer
will



55









 




make no optional sinking fund payment with respect to such series as provided in this Section
12.5.




     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 $50,000, or a lesser sum if the Issuer 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, if any, to the date fixed for redemption. If
such amount shall be $50,000 or less and the Issuer makes no such request, then it shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. The Issuer, or the Trustee, in the name and at the
expense of the Issuer (if the Issuer shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) for the redemption of Securities of
such series in part at the option of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section 12.5. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular Securities of such
series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to
the payment of the principal of, and interest, if any, on, the Securities of such series at
maturity.



     On or before 9:00 A.M. on each sinking fund payment date, the Issuer shall pay to the Trustee
in cash or shall otherwise provide for the payment of all interest, if any, accrued to the date
fixed for redemption on Securities to be redeemed on such sinking fund payment date.



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give any notice of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to
be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient
for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the
time when any such default or Event of Default known to a Responsible Officer of the Trustee shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such
default or Event of Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been waived as provided
in Section 5.7 or the default cured on or before the 60th day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.



56









 





ARTICLE THIRTEEN

GUARANTEES




     SECTION 13.1. Applicability of Article.
The provisions of this Article shall be applicable to each of the Guarantors specified
pursuant to Section 2.3 for the Guarantee of Securities of a series.



     SECTION 13.2. Guarantee.
Each Guarantor of a particular series of Securities hereby unconditionally guarantees (each
such guarantee to be referred to herein as a “Guarantee”), jointly and severally with each other
Guarantor of the Securities of that series, if any, to each Holder of such Securities authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, such Securities or the obligations of the Issuer
hereunder or thereunder, (i) the due and punctual payment of the principal of and any premium or
interest on such Securities, whether at maturity or on an interest payment date, by acceleration,
pursuant to an offer to purchase such Securities or otherwise, and interest on the overdue
principal of and interest, if any, on such Securities, if lawful, and all other obligations of the
Issuer to the Holders of such Securities or the Trustee hereunder or thereunder shall be promptly
paid in full, all in accordance with the terms hereof and thereof including all amounts payable to
the Trustee under Section 6.6 hereof, and (ii) in case of any extension of time of payment or
renewal of any such Securities or any of such other obligations, the same shall be promptly paid in
full when due or to be performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise.



     If the Issuer fails to make any payment when due of any amount so guaranteed for whatever
reason, the Guarantor of the Securities of that series shall be obligated, jointly and severally
with each other Guarantor, if any, to pay the same immediately. Each Guarantor hereby agrees that
its obligations hereunder shall be continuing, absolute and unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of the Securities, this
Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of
the Securities or the Trustee with respect to any provisions hereof or thereof, the recovery of any
judgment against the Issuer, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of such Guarantor. Each Guarantor
hereby waives diligence, presentment, demand of payment, demand of performance, filing of claims
with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, the benefit of discussion, protest, notice and all demand
whatsoever and covenants that its Guarantee shall not be discharged except by complete performance
of the obligations contained in the Securities guaranteed by such Guarantee, in this Indenture and
in this Article 13. If any Holder of Securities of a series guaranteed hereby or the Trustee is
required by any court or otherwise to return to the Issuer or any Guarantor of such Securities, or
any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or
any Guarantor, any amount paid by the Issuer or any Guarantor
of such Securities to the Trustee or such Holder, this Article 13, to the extent theretofore
discharged with respect to any Guarantee of such Securities, shall be reinstated in full force and
effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders of Securities of a series guaranteed hereby by such Guarantor in respect of
any



57









 




obligations guaranteed hereby by such Guarantee until payment in full of all such obligations.
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders of
Securities of a series guaranteed hereby by such Guarantor and the Trustee on the other hand, (i)
the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five
hereof for the purposes of such Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (ii)
in the event of any acceleration of such obligations as provided in Article Five hereof such
obligations (whether or not due and payable) shall forthwith become due and payable by such
Guarantor, jointly and severally with any other Guarantor of such Securities, for the purpose of
this Article Thirteen. In addition, without limiting the foregoing, upon the effectiveness of an
acceleration under Article Five, the Trustee may make a demand for payment on the Securities under
any Guarantee provided hereunder and not discharged.




     With respect to each Guarantee by a Guarantor, such Guarantor shall be subrogated to all
rights of the Holder of any Securities guaranteed hereby by such Guarantee against the Issuer in
respect of any amounts paid to such Holder by such Guarantor pursuant to the provisions of such
Guarantee; provided that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of and interest on all
such Securities shall have been paid in full.



     The Guarantee set forth in this Section 13.2 shall not be valid or become obligatory for any
purpose with respect to a Security until the certificate of authentication on such Security shall
have been signed by the Trustee or any duly appointed agent.



     SECTION 13.3. Obligations of the Guarantor Unconditional.
Nothing contained in this Article Thirteen or elsewhere in this Indenture or in any Security
is intended to or shall impair, as between a Guarantor and the Holders of the Securities guaranteed
by such Guarantor’s Guarantee, the obligations of such Guarantor, which are absolute and
unconditional, to pay to such Holders the principal of and interest on the Securities as and when
the same shall become due and payable in accordance with the provisions of this Guarantee or is
intended to or shall affect the relative rights of such Holders and creditors of such Guarantor,
nor shall anything herein or therein prevent the Trustee or such Holder from exercising all
remedies otherwise permitted by applicable law upon Default under this Indenture in respect of
cash, property or securities of such Guarantor received upon the exercise of any such remedy.



     Upon any distribution of assets of a Guarantor referred to in this Article Thirteen, the
Trustee, subject to the provisions of Sections 6.1 and 6.2, and the Holders of the Securities
guaranteed hereby by such Guarantor shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating trustee or agent or
other person making any distribution to the Trustee or to such Holders, for the purpose of
ascertaining the persons entitled to participate in such distribution, the holders of other
indebtedness of such Guarantor, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article Thirteen.



     SECTION 13.4. Article Thirteen Not to Prevent Events of Default.
The failure to make a payment on account of principal or interest on the Securities of any
series by reason of any



58









 




provision in this Article Thirteen shall not be construed as preventing the
occurrence of an Event of Default under Section 5.1.




     SECTION 13.5. Execution and Delivery of Guarantee.
To evidence a Guarantee set forth in this Article Thirteen, the Guarantor hereby agrees that
the Guarantee Notation, substantially in the form of Exhibit A hereto, shall be endorsed on each
Security authenticated and delivered by the Trustee that is guaranteed by such Guarantee and that
this Indenture or indenture supplemental hereto shall be executed on behalf of such Guarantor by
its Chairman of the Board, its president or chief executive officer, any vice president, the chief
financial officer or the treasurer. Such signatures may be the manual or facsimile signatures of
the present or any future such officers.



     Each Guarantor hereby agrees that its Guarantee shall remain in full force and effect
notwithstanding any failure to endorse the Guarantee Notation on each such Security.



     If an officer whose signature is on this Indenture or indenture supplemental hereto or on the
Securities guaranteed hereby no longer holds that office at the time the Trustee authenticates the
Security on which a notation of the Guarantee is endorsed, such Guarantee shall be valid
nevertheless.



     The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of each Guarantee thereof.



     SECTION 13.6. Limitation on Guarantor Liability.
Notwithstanding anything to the contrary in this Article, each Guarantor, and by its
acceptance of a Security, each Holder, hereby confirms that it is the intention of all such parties
that the Guarantee of such Guarantor not constitute a fraudulent conveyance under applicable
fraudulent conveyance provisions of the Bankruptcy Code or any comparable provision of state law.
To effectuate that intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of each Guarantor under its Guarantee are limited to the maximum amount that
would not render the Guarantor’s obligations subject to avoidance under applicable fraudulent
conveyance provisions of the Bankruptcy Code or any comparable provision of state law.



59









 





SIGNATURES




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



	 	 	 	 	 
	 	Hovnanian Enterprises, Inc.,

As Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Wilmington
Trust Company, As Trustee

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 









 






	 	 	 	 	 



EXHIBIT A




[FORM OF NOTATION OF SECURITY




RELATING TO GUARANTEE]



GUARANTEE




     [Name of Guarantor] (hereinafter referred to as the “Guarantor”, which term includes any
successor person under the Indenture (the “Indenture”) referred to in the Security upon which this
notation is endorsed) (the “Endorsed Security”), has unconditionally guaranteed, jointly and
severally with each other Guarantor (i) the due and punctual payment of the principal of, premium,
if any, and interest on the Endorsed Security and all other Securities of the same series as the
Endorsed Security (the “Guaranteed Securities”), whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal of, premium, if any, and
interest, if any, on the Guaranteed Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Issuer to the Holders of Guaranteed Securities or the
Trustee all in accordance with the terms set forth in Article Thirteen of the Indenture and (ii) in
case of any extension of time of payment or renewal of any Guaranteed Securities or any of such
other obligations, that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by acceleration or
otherwise. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto
in the Indenture.



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



     No stockholder, officer, director, employee or incorporator, as such, past, present or future,
of the Guarantor shall have any personal liability under the Guarantee evidenced hereby by reason
of his or its status as such stockholder, officer, director, employee or incorporator. Each Holder
of a Guaranteed Security by accepting a Guaranteed Security waives and releases all such liability.
This waiver and release are part of the consideration for the issuance of the Guarantee.



     Each Holder of a Guaranteed Security by accepting a Guaranteed Security agrees that any
Guarantor named below shall have no further liability with respect to its Guarantee if such
Guarantor otherwise ceases to be liable in respect of its Guarantee in accordance with the terms of
the Indenture.



     The Guarantee evidenced hereby shall not be valid or obligatory for any purpose until the
certificate of authentication of the Guaranteed Securities shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized officers.



2









 





	 	 	 	 	 
	 	Guarantor



[NAME OF GUARANTOR]

 	 
	 	  	
 	 
	 	 	By: 	 
	 	 	Title: 	 
	 	 	 	 



3









 






	 	 	 	 	 



EXHIBIT B




[SUBSIDIARY GUARANTORS]




4