exv4w11






EXHIBIT 4.11




[                     ], as Issuer




[                     ], as Guarantor




Debt Securities




Indenture




Dated as of [          ]




[                     ],




as Trustee




 









 








CROSS-REFERENCE TABLE




	 	 	 
	TIA	 	Indenture
	Section	 	Section
	 
	 	 
	310(a)(1) 
	 	9.10
	(a)(2) 
	 	9.10
	(a)(3) 
	 	N.A.
	(a)(4) 
	 	N.A.
	(b)
	 	9.08; 9.10; 13.02
	(c)
	 	N.A.
	311(a)
	 	9.11
	(b)
	 	9.11
	(c)
	 	N.A.
	312(a)
	 	2.07
	(b)
	 	13.03
	(c)
	 	13.03
	313(a)
	 	9.06
	(b)(1) 
	 	N.A.
	(b)(2) 
	 	9.06
	(c)
	 	9.06; 13.02
	(d)
	 	9.06
	314(a)
	 	4.03; 13.02
	(b)
	 	N.A.
	(c)(1) 
	 	13.04
	(c)(2) 
	 	13.04
	(c)(3) 
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	13.05
	(f)
	 	N.A.
	315(a)
	 	9.01(b)
	(b)
	 	9.05; 13.02
	(c)
	 	9.01(a)
	(d)
	 	9.01(c)
	(e)
	 	8.11
	316(a)(last sentence) 
	 	13.06
	(a)(1)(A)
	 	8.05
	(a)(1)(B)
	 	8.04
	(a)(2) 
	 	N.A.
	(b)
	 	8.07






 









 






	 	 	 
	TIA	 	Indenture
	Section	 	Section
	 
	317(a)(1) 
	 	8.08
	(a)(2) 
	 	8.09
	(b)
	 	2.06
	318(a)
	 	13.01






 




N.A. means Not Applicable.



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





 









 









TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE

	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Incorporation by Reference of Trust Indenture Act
	 	 	5	 
	Section 1.03 Incorporation by Reference of Provisions of Securities
	 	 	5	 
	Section 1.04 Rules of Construction
	 	 	5	 
	 
	 	 	 	 
	ARTICLE 2

THE SECURITIES

	 
	 	 	 	 
	Section 2.01 Forms Generally
	 	 	6	 
	Section 2.02 Form of Trustee’s Certificate of Authentication
	 	 	6	 
	Section 2.03 Amount Unlimited, Issuable in Series
	 	 	6	 
	Section 2.04 Execution and Authentication
	 	 	8	 
	Section 2.05 Registrar and Paying Agent
	 	 	8	 
	Section 2.06 Paying Agent To Hold Money in Trust
	 	 	9	 
	Section 2.07 Securityholder Lists
	 	 	9	 
	Section 2.08 Transfer and Exchange
	 	 	9	 
	Section 2.09 Replacement Securities
	 	 	10	 
	Section 2.10 Outstanding Securities
	 	 	10	 
	Section 2.11 Temporary Securities
	 	 	10	 
	Section 2.12 Cancellation
	 	 	11	 
	Section 2.13 Defaulted Interest
	 	 	11	 
	Section 2.14 Global Securities
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 3

REDEMPTION

	 
	 	 	 	 
	Section 3.01 Notices to Trustee
	 	 	11	 
	Section 3.02 Selection of Securities To Be Redeemed
	 	 	12	 
	Section 3.03 Notice of Redemption
	 	 	12	 
	Section 3.04 Effect of Notice of Redemption
	 	 	13	 
	Section 3.05 Deposit of Redemption Price
	 	 	13	 
	Section 3.06 Securities Redeemed in Part
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 4

COVENANTS

	 
	 	 	 	 
	Section 4.01 Payment of Securities
	 	 	13	 
	Section 4.02 SEC Reports
	 	 	13	 
	Section 4.03 Compliance Certificate
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 5

SUCCESSOR CORPORATION







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	Section 5.01 When the Company and the Guarantor May Merge, Etc
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 6

SUBORDINATION

	 
	 	 	 	 
	Section 6.01 Agreement to Subordinate
	 	 	14	 
	Section 6.02 Company Not To Make Payments with Respect to Securities in Certain Circumstances
	 	 	14	 
	Section 6.03 Securities Subordinated to Prior Payment of All Senior Indebtedness of the Company on Dissolution, Liquidation or Reorganization of the Company
	 	 	15	 
	Section 6.04 Securityholders To Be Subrogated to Rights of Holders of Senior Indebtedness of the Company
	 	 	16	 
	Section 6.05 Obligation of the Company Unconditional
	 	 	16	 
	Section 6.06 Knowledge of Trustee
	 	 	17	 
	Section 6.07 Application by Trustee of Monies Deposited With It
	 	 	17	 
	Section 6.08 Subordination Rights Not Impaired by Acts or Omissions of Company or Holders of Senior Indebtedness of the Company
	 	 	17	 
	Section 6.09 Securityholders Authorize Trustee To Effectuate Subordination of Securities
	 	 	18	 
	Section 6.10 Right of Trustee To Hold Senior Indebtedness of the Company
	 	 	18	 
	Section 6.11 Article Six Not To Prevent Events of Default
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 7

GUARANTEE

	 
	 	 	 	 
	Section 7.01 Guarantee
	 	 	18	 
	Section 7.02 Agreement To Subordinate
	 	 	19	 
	Section 7.03 Guarantor Not To Make Payments with Respect to Securities in Certain Circumstances
	 	 	20	 
	Section 7.04 Guarantee Subordinated to Prior Payment of All Senior Indebtedness of the Guarantor on Dissolution, Liquidation or Reorganization of the Guarantor
	 	 	20	 
	Section 7.05 Securityholders To Be Subrogated to Rights of Holders of Senior Indebtedness of the Guarantor
	 	 	22	 
	Section 7.06 Obligation of the Guarantor Unconditional
	 	 	22	 
	Section 7.07 Knowledge of Trustee
	 	 	22	 
	Section 7.08 Application by Trustee of Monies Deposited With It
	 	 	23	 
	Section 7.09 Subordination Rights Not Impaired by Acts or Omissions of Guarantor or Holders of Senior Indebtedness of the Guarantor
	 	 	23	 
	Section 7.10 Securityholders Authorize Trustee To Effectuate Subordination of Guarantee
	 	 	23	 
	Section 7.11 Right of Trustee To Hold Senior Indebtedness of the Guarantor
	 	 	23	 
	Section 7.12 Article 7 Not To Prevent Events of Default
	 	 	24	 
	Section 7.13 Execution and Delivery of Guarantee
	 	 	24	 
	Section 7.14 Subordination of Indebtedness Owed by the Company to the Guarantor
	 	 	24	 
	Section 7.15 Officers’ Certificate
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 8

DEFAULTS AND REMEDIES







- ii -









 






	 	 	 	 	 
	Section 8.01 Events of Default
	 	 	24	 
	Section 8.02 Acceleration
	 	 	26	 
	Section 8.03 Other Remedies
	 	 	27	 
	Section 8.04 Waiver of Past Defaults
	 	 	27	 
	Section 8.05 Control by Majority
	 	 	27	 
	Section 8.06 Limitation on Suits
	 	 	27	 
	Section 8.07 Rights of Holders To Receive Payment
	 	 	28	 
	Section 8.08 Collection Suit by Trustee
	 	 	28	 
	Section 8.09 Trustee May File Proofs of Claim
	 	 	28	 
	Section 8.10 Priorities
	 	 	28	 
	Section 8.11 Undertaking for Costs
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 9

TRUSTEE

	 
	 	 	 	 
	Section 9.01 Duties of Trustee
	 	 	29	 
	Section 9.02 Rights of Trustee
	 	 	30	 
	Section 9.03 Individual Rights of Trustee
	 	 	30	 
	Section 9.04 Trustee Disclaimer
	 	 	30	 
	Section 9.05 Notice of Defaults
	 	 	30	 
	Section 9.06 Reports by Trustee to Holders
	 	 	30	 
	Section 9.07 Compensation and Indemnity
	 	 	31	 
	Section 9.08 Replacement of Trustee
	 	 	31	 
	Section 9.09 Successor Trustee by Merger, etc.
	 	 	32	 
	Section 9.10 Eligibility; Disqualification
	 	 	32	 
	Section 9.11 Preferential Collection of Claims Against Company
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 10

CONVERSION OF SECURITIES

	 
	 	 	 	 
	Section 10.01 Applicability of Article
	 	 	32	 
	Section 10.02 Conversion Privilege
	 	 	32	 
	Section 10.03 Manner of Exercise of Conversion Privilege
	 	 	33	 
	Section 10.04 Payment in Lieu of Fractional Shares
	 	 	34	 
	Section 10.05 Adjustment of Conversion Price
	 	 	34	 
	Section 10.06 Notice of Certain Corporate Action
	 	 	36	 
	Section 10.07 Guarantor to Provide Stock
	 	 	37	 
	Section 10.08 Taxes on Conversions
	 	 	37	 
	Section 10.09 Covenant as to Stock
	 	 	37	 
	Section 10.10 Consolidation or Merger
	 	 	38	 
	Section 10.11 Disclaimer of Responsibility for Certain Matters
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 11

DISCHARGE OF INDENTURE

	 
	 	 	 	 
	Section 11.01 Termination of the Company’s and the Guarantor’s Obligations
	 	 	39	 
	Section 11.02 Application of Trust Money
	 	 	39	 






- iii -









 






	 	 	 	 	 
	Section 11.03 Repayment to Company
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 12

AMENDMENTS, SUPPLEMENT AND WAIVERS

	 
	 	 	 	 
	Section 12.01 Without Consent of Holders
	 	 	40	 
	Section 12.02 With Consent of Holders
	 	 	40	 
	Section 12.03 Compliance with Trust Indenture Act
	 	 	41	 
	Section 12.04 Revocation and Effect of Consents
	 	 	41	 
	Section 12.05 Notation on or Exchange of Securities
	 	 	41	 
	Section 12.06 Trustee to Sign Amendments, etc.
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 13

MISCELLANEOUS

	 
	 	 	 	 
	Section 13.01 Trust Indenture Act Controls
	 	 	41	 
	Section 13.02 Notices
	 	 	42	 
	Section 13.03 Communication by Holders with Other Holders
	 	 	42	 
	Section 13.04 Certificate and Opinion as to Conditions Precedent
	 	 	42	 
	Section 13.05 Statements Required in Certificate or Opinion
	 	 	43	 
	Section 13.06 When Treasury Securities Disregarded
	 	 	43	 
	Section 13.07 Rules by Trustee, Paying Agent, Registrar
	 	 	43	 
	Section 13.08 Legal Holidays
	 	 	43	 
	Section 13.09 Governing Law
	 	 	43	 
	Section 13.10 No Adverse Interpretation of Other Agreements
	 	 	43	 
	Section 13.11 No Recourse Against Others
	 	 	44	 
	Section 13.12 Successors
	 	 	44	 
	Section 13.13 Duplicate Originals
	 	 	44	 
	Section 13.14 Counterparts
	 	 	44	 






- iv -









 





     INDENTURE dated as of [                     ] among [                     ], a
[                     ] corporation (the “Company”), [                     ], a
[                     ] corporation (the “Guarantor”), and [                     ], a
[                     ] (the “Trustee”).



     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its bonds, debentures, notes and/or other evidences of
indebtedness (herein called the “Securities”), which may be senior secured, senior unsecured,
senior subordinated or subordinated, to be issued in one or more series as in this Indenture
provided.



     The Guarantor has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unconditional guarantee of the Securities (herein called the
“Guarantee”), which may be senior secured, senior unsecured, senior subordinated or subordinated,
as in this Indenture provided.



     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 ratable benefit of the Holders of
the Securities or of each series thereof as follows:



ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01 Definitions.



     “Acceleration Notice” has the meaning provided in Section 8.02.



     “Affiliate” has the meaning provided in Rule 405 promulgated under the Securities Act of 1933,
as amended and in effect on the date hereof.



     “Authorizing Resolution” means a resolution adopted by the Board of Directors or by an Officer
or committee of Officers pursuant to Board delegation authorizing a Series of Securities. An
Authorizing Resolution shall be so adopted by both the Company and the Guarantor.



     “Bankruptcy Law” has the meaning provided in Section 8.01.



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



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



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



     “Capital Stock” means the classes of capital stock of a Person as they exist on the date of
this Indenture or as they may be constituted from time to time and warrants, options and similar
rights to acquire such capital stock.



 









 





     “Common Stock” means the Common Stock ($.01 par value) of the Guarantor as the same exists at
the date of this Indenture as originally executed or as such stock may be constituted from time to
time.



     “Company” means the party named as such in this Indenture until a successor replaces it and
thereafter means the successor or any other obligor on the Securities. “Company” shall also mean
the Guarantor in the event the Company fails to perform those duties required by Sections 312
through 317 of the TIA.



     “Consolidated Net Worth” of any Person means the consolidated stockholders’ equity of such
Person, as determined in accordance with generally accepted accounting principles.



     “Conversion Price” means the initial conversion price of Securities of a Series specified in
the Authorizing Resolution establishing the terms of such Series Security, as adjusted in
accordance with the provisions of Article 10.



     “Current Market Price” for any relevant date means, (a) except for purposes of Section 10.04,
the average of the last reported sale prices of the Common Stock for the 30 consecutive Business
Days commencing 45 Business Days before the day in question and (b) for purposes of Section 10.04
only, the last reported sale price of the Common Stock, in either such case as reported on the
composite tape, or similar reporting system, for issues listed on the New York Stock Exchange (or
if the Common Stock is not then listed on that exchange, for issues listed on such other national
securities exchange upon which the Common Stock is listed as may be designated by the Board of
Directors for the purposes hereof) or, if there is no such reported sale on the day or days in
question, on the basis of the average of the closing bid and asked quotations as so reported, or,
if the Common Stock is not listed on any national securities exchange, on the basis of the average
of the high bid and low asked quotations on the day or days in question in the over-the-counter
market as reported by the National Association of Securities Dealers’ Automated Quotations System,
or if not so quoted, as reported by National Quotation Bureau, Incorporated, or any similar
organization, or if not so reported as determined in good faith by the Board.



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



     “Designated Senior Debt of the Company” means any single issue of indebtedness of the Company
constituting Senior Indebtedness of the Company which at the time of determination has an aggregate
principal amount outstanding of at least $25,000,000 and is specifically designated in the
instrument or instruments creating, governing or evidencing such Senior Indebtedness of the Company
as “Designated Senior Debt of [                     ]” (it being understood that the Company’s
guarantee of the Revolving Credit Agreement shall be considered a single issue of indebtedness of
the Company for purposes of this definition).



     “Designated Senior Debt of the Guarantor” means any single issue of indebtedness of the
Guarantor constituting Senior Indebtedness of the Guarantor which at the time of determination has
an aggregate principal amount outstanding of at least $25,000,000 and is specifically designated in
the instrument or instruments creating, governing or evidencing such Senior



- 2 -









 







Indebtedness of the Guarantor as “Designated Senior Debt of [                     ]” (it being
understood that the Guarantor’s guarantee of the Revolving Credit Agreement shall be considered a
single issue of indebtedness of the Guarantor for purposes of this definition).




     “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Event of Default” has
the meaning provided in Section 8.01. “Guarantee” has the meaning provided in Section 7.01.



     “Guarantor” means the party named as such in this Indenture until a successor replaces it and
thereafter means the successor.



     “Holder” or “Securityholder” means the Person in whose name a Security is registered on the
Registrar’s books.



     “Indenture” means this Indenture as amended or supplemented from time to time.



     “Interest Payment Date,” when used with respect to any installment of interest payable on the
Securities, has the meaning provided in Section 1 of the Securities.



     “Legal Holiday” has the meaning provided in Section 13.08.



     “Non-Recourse Indebtedness” means indebtedness or other obligations secured by a lien on
property to the extent that the liability for such indebtedness or other obligations is limited to
the security of the property without liability on the part of the Guarantor or any Subsidiary
(other than the Subsidiary which holds title to such property) for any deficiency.



     “Non-Recourse Judgment” means a judgment in respect of indebtedness or other obligations
secured by a lien on property to the extent that the liability for (i) such indebtedness or other
obligations and (ii) such judgment is limited to such property without liability on the part of the
Guarantor or any Subsidiary (other than the Subsidiary which holds title to such property) for any
deficiency.



     “Officer” means the Chairman of the Board, the President, any Vice President, the Chief
Accounting Officer, the Controller, the Treasurer or the Secretary of the Company or the Guarantor,
as the case may be.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board, the President
or any Vice President, and by the Chief Accounting Officer, the Controller, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company or the Guarantor, as
the case may be. See Sections 13.04 and 13.05.



     “Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be counsel to, but not an employee of, the Company or the Guarantor. See
Sections 13.04 and 13.05.



     “Original Issue Discount Security” means any Security which provides that an amount less than
its principal amount is due and payable upon acceleration after an Event of Default.



- 3 -









 





     “Paying Agent” has the meaning provided in Section 2.05.



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



     “Principal” of a debt security means the principal of the security plus the premium, if any,
on the security.



     “Record Date” for the interest payable on any Interest Payment Date on the Securities has the
meaning provided in Section 1 of the Securities.



     “Registrar” has the meaning provided in Section 2.05.



     “Restricted Subsidiary,” if applicable, has the meaning provided in the Authorizing
Resolution.



     “Revolving Credit Agreement” means the Credit Agreement dated as of [                     ]
among [                             ], as the same may be amended from time to time.



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the securities as amended or supplemented from time to time that are
authenticated and issued under this Indenture.



     “Senior Indebtedness of the Company,” if applicable, has the meaning provided in the
Authorizing Resolution.



     “Senior Indebtedness of the Guarantor,” if applicable, has the meaning provided in the
Authorizing Resolution.



     “Series” means a series of Securities or the Securities of a Series. “Special Record Date”
has the meaning provided in Section 2.13.



     “Subsidiary” means any corporation of which at least a majority in interest of the outstanding
stock having by the terms thereof voting power under ordinary circumstances to elect a majority of
the directors of such corporation, irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency, is at the time, directly or indirectly, owned or controlled by the
Guarantor.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect
on the date of this Indenture and as it may be amended from time to time.



     “Trustee” means the party named as such in this Indenture until a successor replaces it and
thereafter means the successor.



- 4 -









 





     “Trust Officer” when used with respect to the Trustee means any officer within the Corporate
Trust Department (or any successor group) of the Trustee, including any Vice President, Assistant
Vice President, Trust Officer or any other officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such officers and also means,
with respect to a particular corporate trust matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with the particular subject.



     Section 1.02 Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have the following
meanings:



     “commission” means the SEC.



     “indenture securities” means the Securities.



     “indenture security holder” means a Securityholder or Holder.



     “indenture to be qualified” means this Indenture.



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



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



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



     Section 1.03 Incorporation by Reference of Provisions of Securities. Whenever this
Indenture refers to a provision of the Securities, the provision is incorporated by reference in
and made a part of this Indenture.



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



          (1) a term has the meaning assigned to it;




          (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with
generally accepted accounting principles at the time of the relevant computation;




          (3) “or” is not exclusive;




          (4) words in the singular include the plural, and in the plural include the singular; and




          (5) provisions apply to successive events and transactions.




- 5 -









 








ARTICLE 2

THE SECURITIES




     Section 2.01 Forms Generally. The Securities and the Guarantee, respectively, of each
series shall be in such forms (including global form) as shall be established by or pursuant to an
Authorizing Resolution or in one or more supplemental indentures hereto, in each case with such
appropriate provisions as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or depositary therefor or as may,
consistent herewith, be determined appropriate by the Officers executing such Securities, as
evidenced by their execution thereof. If the form of any series of Securities is established by
action taken pursuant to an Authorizing Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or any Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of a written order of the Company signed by two Officers or an
Officer and an Assistant Treasurer of the Company for the authentication and delivery of such
Securities.



     The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, provided that such method is permitted by the rules of any
securities exchange on which such Securities may be listed, all as determined by the Officers
executing such Securities, as evidenced by their execution of such Securities.



     The terms and provisions in the Securities shall constitute, and are hereby expressly made, a
part of this Indenture.



     Section 2.02 Form of Trustee’s Certificate of Authentication. The Trustee’s
certificate of authentication shall be in substantially the following form:




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



	 	 	 	 	 	 	 
	 	 	[                     ] as Trustee	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Signatory
	 	 






     Section 2.03 Amount Unlimited, Issuable in Series. The aggregate principal amount of
Securities that may be issued under this Indenture is unlimited. The Securities may be issued from
time to time in one or more Series. Each Series shall be created by an Authorizing Resolution or a
supplemental indenture that establishes the terms of the Series, which may include the following:



          (1) the title of the Series;




          (2) any limit upon the aggregate principal amount of the Series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of other Securities which, pursuant to Sections
2.08, 2.09, 2.11 or 10.05 and except for any Securities which, pursuant to Section 2.04, are deemed
never to have been authenticated and delivered hereunder);




- 6 -









 








          (3) the interest rate or method of calculation of the interest rate;




          (4) the date from which interest will accrue;




          (5) the Record Dates for interest payable on Securities of the Series;




          (6) the dates when, places where and manner in which principal and interest are payable;




          (7) the Registrar and Paying Agent;




          (8) the terms of any mandatory or optional redemption by the Company;




          (9) the terms of any redemption at the option of Holders;




          (10) the denominations in which Securities are issuable;




          (11) whether Securities will be issued in registered or bearer form and the terms of any such
forms of Securities;




          (12) whether any Securities will be represented by a global Security and the terms of any such
global Security;




          (13) the currencies (including any composite currency) in which principal or interest or both
may be paid;




          (14) if payments of principal or interest may be made in a currency other than that in which
Securities are denominated, the manner for determining such payments;




          (15) provisions for electronic issuance of Securities or issuance of Securities in
uncertificated form;




          (16) any Events of Default or covenants in addition to or in lieu of those set forth in this
Indenture;




          (17) whether and upon what terms Securities may be defeased;




          (18) the respective forms of the Securities and the Guarantees;




          (19) whether the Securities of such Series will be convertible into Common Stock of the
Guarantor and the terms thereof (including without limitation the Conversion Price, the conversion
period and any other provision in addition to or in lieu of those set forth in this Indenture);




          (20) whether the Securities and Guarantees of such Series shall be subordinated to any
obligations of the Company or the Guarantor, and the obligations to which such subordination will
apply;




- 7 -









 








          (21) whether the Securities of such Series and/or the Guarantees of such Series will be
secured and, if applicable, any provisions for securing all or any portion of the indebtedness
evidenced by the Securities of such Series and/or the Guarantees of such Series;




          (22) any terms that may be required by or advisable under applicable law; and




          (23) any other terms not inconsistent with this Indenture.




     All Securities of one Series need not be issued at the same time and, unless otherwise
provided, a Series may be reopened for issuances of additional Securities of such Series pursuant
to an Authorizing Resolution, an Officers’ Certificate or in any indenture supplemental hereto.



     The creation and issuance of a Series and the authentication and delivery thereof are not
subject to any conditions precedent.



     Section 2.04 Execution and Authentication. Two Officers shall sign the Securities for
the Company by manual or facsimile signature. The Company’s seal shall be reproduced on the
Securities. Two Officers of the Guarantor shall sign the notation of the Guarantee by manual or
facsimile signature.



     If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.



     A Security shall not be valid until the Trustee manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.



     The Trustee shall authenticate Securities for original issue upon a written order of the
Company signed by two Officers or by an Officer and an Assistant Treasurer of the Company. Each
Security shall be dated the date of its authentication. In authenticating Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to the TIA) shall be fully protected in relying
upon, an Opinion of Counsel stating that all conditions precedent to the authentication and
delivery of the Securities have been complied with and that the Securities have been duly executed
and, when the Securities have been duly authenticated and delivered by the Trustee, will be duly
issued and delivered and will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and subject to
the effect of general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether enforcement is considered in a
proceeding in equity or at law).



     Section 2.05 Registrar and Paying Agent. The Company shall maintain an office or
agency where Securities may be presented for registration of transfer, for exchange or, if
applicable, for conversion (in the case of conversion, as agent for the Guarantor) (“Registrar”)
and an office or agency where Securities may be presented for payment (“Paying Agent”). The



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Registrar shall keep a register of the Securities and of their transfer. The Company may have
one or more co-registrars and one or more additional paying agents. The term “Paying Agent”
includes any additional paying agent.



     The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.



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



     Section 2.06 Paying Agent To Hold Money in Trust. Each Paying Agent shall hold in
trust for the benefit of the Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal or interest on the Securities, and shall notify the Trustee of any default
by the Company (or any other obligor on the Securities) in making any such payment. While any such
default continues, the Trustee shall require a Paying Agent to pay all money held by it to the
Trustee. If the Company or a Subsidiary acts as Paying Agent, it shall segregate the money and
hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon doing so the Paying Agent shall have no further liability
for the money.



     Section 2.07 Securityholder Lists. The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee on
or before each Interest Payment Date and at such other times as the Trustee may request in writing
a list in such form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.



     Section 2.08 Transfer and Exchange. Where a Security is presented to the Registrar or
a co-registrar with a request to register a transfer, the Registrar shall register its transfer as
requested if its reasonable requirements are met. Where Securities are presented to the Registrar
or a co-registrar with a request to exchange them for an equal principal amount of Securities of
other denominations, the Registrar shall make the exchange as requested if the same requirements
are met. To permit transfers and exchanges, the Trustee shall authenticate Securities at the
Registrar’s request. The Registrar need not transfer or exchange any Security selected for
redemption, except the unredeemed part thereof if the Security is redeemed in part, or transfer or
exchange any Securities for a period of 15 days before a selection of Securities to be redeemed.
The Company may charge a reasonable fee for any transfer or exchange (including the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in connection with
any such transfer or exchange and any other expenses in connection therewith) but not for any
exchange pursuant to Section 2.11, 3.06 or 12.05. This Section 2.08 is subject to the provisions
of any series of the Securities providing for the subordination or seniority of such series and the
related Guarantees of such series in right of payment to other indebtedness of the Company and the
Guarantor, respectively.



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     Section 2.09 Replacement Securities. If the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security and the Guarantor shall endorse the Guarantee thereon if
the Trustee’s reasonable requirements are met. An indemnity bond must be sufficient in the
judgment of the Company, the Guarantor and the Trustee to protect the Company, the Guarantor, the
Trustee, the Paying Agent, the Registrar or any co-registrar from any loss which any of them may
suffer if a Security is replaced. The Company may charge for its expenses in replacing a Security.



     Every replacement Security is an additional obligation of the Company and the Guarantor.



     Section 2.10 Outstanding Securities. Securities outstanding at any time are all
Securities authenticated by the Trustee except for those presented to it by the Company or its
designee for cancellation and those described in this Section as not outstanding. A Security does
not cease to be outstanding because the Company, the Guarantor or one of their Affiliates holds the
Security.



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



     If the Paying Agent holds on a redemption date or maturity date money sufficient to pay
Securities payable on that date, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.



     If a Security is called for redemption or if it matures in less than six months and if the
Company has satisfied its obligation to pay the Security, or if a Security has been converted in
accordance with the provisions of Article 10, the Company and the Trustee need not treat the
Security as outstanding in determining whether Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent.



     For each series of Original Issue Discount Securities, the principal amount of such Securities
that shall be deemed to be outstanding and used to determine whether the necessary Holders have
given any request, demand, authorization, direction, notice, consent or waiver shall be the
principal amount of such Securities that could be declared to be due and payable upon acceleration
upon an Event of Default as of the date of such determination. When requested by the Trustee, the
Company will advise the Trustee of such amount, showing its computations in reasonable detail.



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



     Section 2.11 Temporary Securities. Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary Securities and the
Guarantor shall endorse the Guarantee thereon. Temporary Securities shall be substantially in



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the form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities and the Guarantor shall endorse the Guarantee
thereon in exchange for temporary Securities.



     Section 2.12 Cancellation. The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for transfer, exchange, conversion or payment. The Trustee and no
one else shall cancel and destroy all Securities surrendered for transfer, exchange, conversion,
payment or cancellation in accordance with its customary procedure. Unless the Authorizing
Resolution so provides, the Company may not issue new Securities to replace Securities it has paid
or delivered to the Trustee for cancellation.



     Section 2.13 Defaulted Interest. If the Company defaults in a payment of interest on
the Securities, it shall pay the defaulted interest in any lawful manner. It may pay the defaulted
interest, plus any interest payable on the interest (to the extent lawful) if an Event of Default
has occurred and is continuing, to the Persons who are Securityholders on a subsequent special
record date (the “Special Record Date”). The Company shall fix the subsequent Special Record Date
and payment date. At least 15 days before such Special Record Date, the Company shall give notice
to the Trustee and shall mail to each Securityholder a notice that states the subsequent Special
Record Date, the payment date, and the amount of defaulted interest to be paid.



     Section 2.14 Global Securities. Unless the Authorizing Resolution provides otherwise,
the Company may issue some or all of the Securities of a Series in temporary or permanent global
form. A global Security shall represent that amount of Securities of a Series as specified in the
global Security or as endorsed thereon from time to time. At the Company’s request, the Registrar
shall endorse a global Security to reflect the amount of any increase or decrease in the Securities
represented thereby.



     The Company may issue a global Security only to a depositary designated by the Company. A
depositary may transfer a global Security only as a whole to its nominee or to a successor
depositary.



     The Authorizing Resolution may establish, among other things, the manner of paying principal
and interest on a global Security and whether and upon what terms a beneficial owner of an interest
in a global Security may exchange such interest for definitive Securities.



     The Company and the Trustee shall not be responsible for any acts or omissions of a
depositary, for any depositary records of beneficial ownership interests or for any transactions
between the depositary and beneficial owners.



ARTICLE 3

REDEMPTION




     Section 3.01 Notices to Trustee. Securities of a Series that are redeemable prior to
maturity shall be redeemable in accordance with their terms and, unless the Authorizing Resolution
provides otherwise, in accordance with this Article.



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     If the Company wants to redeem Securities pursuant to Paragraph 5 of the Securities, it shall
notify the Trustee in writing of the redemption date and the principal amount of Securities to be
redeemed. Any such notice may be canceled at any time prior to notice of such redemption being
mailed to Holders. Any such canceled notice shall be void and of no effect.



     If the Company wants to credit any Securities previously redeemed, retired or acquired against
any redemption pursuant to Paragraph 6 of the Securities, it shall notify the Trustee of the amount
of the credit and it shall deliver any Securities not previously delivered to the Trustee for
cancellation with such notice.



     The Company shall give each notice provided for in this Section 3.01 at least 10 Business Days
before the notice of any such redemption is to be mailed to Holders (unless a shorter notice shall
be satisfactory to the Trustee).



     Section 3.02 Selection of Securities To Be Redeemed. If less than all the Securities
of a Series are to be redeemed, the Trustee shall select the Securities to be redeemed, if the
Securities of such Series are listed on a national securities exchange, in accordance with the
rules of such exchange, or if the Securities of such Series are not so listed, on either a pro rata
basis or by lot or by such method as the Trustee shall deem fair and appropriate. The Trustee
shall make the selection from Securities outstanding and not previously called for redemption.
Securities in denominations of $1,000 may only be redeemed in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for redemption.



     Section 3.03 Notice of Redemption. At least 30 days but not more than 60 days before
a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder
of Securities to be redeemed.



     The notice shall identify the Securities to be redeemed and shall state:



          (1) the redemption date;




          (2) the redemption price;




          (3) the name and address of the Paying Agent;




          (4) in the event that any Security is to be redeemed in part only, the portion of the
principal amount thereof to be redeemed and that on and after the redemption date, upon surrender
of such Security, a new Security or Securities in principal amount equal to the unredeemed portion
thereof will be issued;




          (5) that Securities called for redemption must be surrendered to the Paying Agent to collect
the redemption price;




          (6) that interest on Securities called for redemption ceases to accrue on and after the
redemption date;




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          (7) that the Securities are being redeemed pursuant to the mandatory redemption or the
optional redemption provisions, as applicable; and




          (8) if applicable, the current Conversion Price and the date on which the right to convert the
Securities into Common Stock will expire.




     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense.



     Section 3.04 Effect of Notice of Redemption. Once notice of redemption is mailed,
Securities called for redemption become due and payable on the redemption date and at the
redemption price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest to the redemption date.



     Section 3.05 Deposit of Redemption Price. Prior to the redemption date, the Company
or its designee shall deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued and unpaid interest on all Securities to be redeemed on that date.



     Section 3.06 Securities Redeemed in Part . Upon surrender of a Security that is
redeemed in part, the Trustee shall authenticate for the Holder a new Security and the Guarantor
shall endorse the Guarantee thereon equal in principal amount to the unredeemed portion of the
Securities surrendered.



ARTICLE 4

COVENANTS




     Section 4.01 Payment of Securities. The Company shall pay the principal of and
interest on Securities of a Series on the dates and in the manner provided in the Securities of the
Series An installment of principal or interest shall be considered paid on the date due if the
Trustee or Paying Agent holds on that date immediately available legal tender funds designated for,
available and sufficient to pay the installment.



     The Company shall pay interest on overdue principal at the rate borne by the Series; it shall
pay interest on overdue installments of interest at the same rate to the extent lawful.



     Section 4.02 SEC Reports. Within 15 days after each of the Guarantor and the Company
files with the SEC copies of its annual reports and other information, documents and reports (or
copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe)
which they are required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act,
the Guarantor and the Company shall file the same with the Trustee. If the Guarantor shall cease
to be subject to the requirements of Section 13 or 15(d) of the Exchange Act, the Guarantor shall
file with the Trustee, within 15 days after the last date on which it would have been required to
make such a filing with the SEC, financial statements, including any notes thereto, and a
“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” each
comparable to that which the Guarantor would have been required to include in such annual reports,
information, documents or other reports, if the Guarantor were then subject to the requirements of
Section 13 or 15(d) of the Exchange Act.



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The Company and the Guarantor also shall comply with the other provisions of TIA Section
314(a).



     Section 4.03 Compliance Certificate. The Company and the Guarantor each shall deliver
to the Trustee within 120 days after the end of their respective fiscal year an Officers’
Certificate satisfying the requirements of Section 3.14(a)(4) of the TIA and stating whether or not
the signers know of any Default or Event of Default. If they do know of such a Default or Event of
Default, the certificate shall describe the Default or Event of Default.



ARTICLE 5

SUCCESSOR CORPORATION




     Section 5.01 When the Company and the Guarantor May Merge, Etc. Neither the Company
nor the Guarantor shall consolidate with or merge into, or transfer all or substantially all of its
assets to, any other person unless (i) such other Person is a corporation organized and existing
under the laws of the United States or a State thereof or the District of Columbia and expressly
assumes by supplemental indenture all the obligations of the Company or the Guarantor under the
Indenture and either the Securities or the Guarantee, as the case may be; and (ii) immediately
after giving effect to such transaction no Default or Event of Default shall have occurred and be
continuing. Thereafter all such obligations of the predecessor corporation shall terminate.



ARTICLE 6

SUBORDINATION




     Section 6.01  Agreement to Subordinate. The provisions of this Article 6 shall apply
to the Securities of a Series to the extent specified in the Authorizing Resolution relating to
such Series. Each reference in this Article 6 to “a Security” or “the Securities” refers to the
Securities of each such Series so designated.



     The Company, for itself and its successors, and each Holder, by accepting Securities, agrees
that the payment of the principal of, interest on or any other amounts due on the Securities are
subordinated in right of payment, to the extent and in the manner stated in this Article 6, to the
prior payment in full of all Senior Indebtedness of the Company. Each Holder by accepting
Securities authorizes and directs the Trustee on behalf of such Holder to take such action as may
be necessary or appropriate to effectuate, as between the holders of Senior Indebtedness of the
Company and such Holder, the subordination provided in this Article 6 and appoints the Trustee
attorney-in-fact for such Holder for such purpose.



     This Article 6 shall constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of, or continue to hold, Senior Indebtedness of the Company, and such
provisions are made for the benefit of the holders of Senior Indebtedness of the Company and such
holders are made obligees hereunder and they and/or each of them may enforce such provisions.



     Section 6.02 Company Not To Make Payments with Respect to Securities in Certain
Circumstances.



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          (a) Upon the maturity of any Senior Indebtedness of the Company by lapse of time, acceleration
(unless waived) or otherwise, all principal thereof and interest thereon shall first be paid in
full, or such payment duly provided for in cash or in a manner satisfactory to the holders of such
Senior Indebtedness of the Company, before any payment is made on account of the principal of or
interest on the Securities or to acquire any of the Securities.




          (b) In the event that notwithstanding the provisions of this Section 6.02 the Company shall
make any payment to the Trustee on account of the principal of or interest on the Securities after
the happening of a default in payment of the principal of or interest on Senior Indebtedness of the
Company, then, unless and until such default shall have been cured or waived or shall have ceased
to exist, such payment (subject to the provisions of Sections 6.06 and 6.07) shall be held by the
Trustee, in trust for the benefit of, and shall be paid forthwith over and delivered to, the
holders of Senior Indebtedness of the Company (pro rata as to each of such holders on the basis of
the respective amounts of Senior Indebtedness of the Company held by them) or their representative
or the trustee under the indenture or other agreement (if any) pursuant to which Senior
Indebtedness of the Company may have been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness of the Company remaining unpaid to the extent
necessary to pay all Senior Indebtedness of the Company in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the holders of the Senior
Indebtedness of the Company.




     The Company shall give prompt written notice to the Trustee of any default in the payment of
principal of or interest on any Senior Indebtedness of the Company.



     Section 6.03 Securities Subordinated to Prior Payment of All Senior Indebtedness of the
Company on Dissolution, Liquidation or Reorganization of the Company. Upon any distribution of
assets of the Company in any dissolution, winding up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the
benefits of creditors or otherwise):



          (a) the holders of all Senior Indebtedness of the Company shall first be entitled to receive
payment in full of the principal thereof and interest due thereon before the Holders of the
Securities are entitled to receive any payment on account of the principal of or interest on the
Securities;




          (b) any payment or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Securities or the Trustee on behalf of
the Holders of the Securities would be entitled except for the provisions of this Article 6,
including any such payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other Person making such payment
or distribution directly to the holders of the Senior Indebtedness of the Company or their
representative, or to the trustee under any indenture under which Senior Indebtedness of the
Company may have been issued (pro rata as to each such holder, representative or trustee on the
basis of the respective amounts of unpaid Senior Indebtedness of the Company held or represented by
each), to the extent necessary to make payment in full of all Senior Indebtedness of the Company
remaining unpaid, after giving effect to any concurrent



- 15 -









 






payment or distribution or provision therefor to the holders of such Senior Indebtedness of
the Company, except that Holders of the Securities would be entitled to receive securities that are
subordinated to Senior Indebtedness of the Company to at least the same extent as the Securities;
and




          (c) in the event that notwithstanding the foregoing provisions of this Section 6.03, any
payment or distribution of assets of the Company of any kind or character whether in cash, property
or securities, including any such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company being subordinated to the payment of
the Securities, shall be received by the Trustee or the Holders of the Securities on account of
principal of or interest on the Securities before all Senior Indebtedness of the Company is paid in
full, or effective provision made for its payment, such payment or distribution (subject to the
provisions of Sections 6.06 and 6.07) shall be received and held in trust for and shall be paid
over to the holders of the Senior Indebtedness of the Company remaining unpaid or unprovided for or
their representative, or to the trustee under any indenture under which such Senior Indebtedness of
the Company may have been issued (pro rata as provided in subsection (b) above), for application to
the payment of such Senior Indebtedness of the Company until all such Senior Indebtedness of the
Company shall have been paid in full, after giving effect to any concurrent payment or distribution
or provision therefor to the holders of such Senior Indebtedness of the Company, except that
Holders of the Securities would be entitled to receive securities that are subordinated to Senior
Indebtedness of the Company to at least the same extent as the Securities.




     The Company shall give prompt written notice to the Trustee of any dissolution, winding up,
liquidation or reorganization of the Company.



     Section 6.04 Securityholders To Be Subrogated to Rights of Holders of Senior Indebtedness
of the Company. Subject to the payment in full of all Senior Indebtedness of the Company, the
Holders of the Securities shall be subrogated equally and ratably to the rights of the holders of
the Senior Indebtedness of the Company to receive payments or distributions of assets of the
Company applicable to the Senior Indebtedness of the Company until all amounts owing on the
Securities shall be paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Indebtedness of the Company by or on behalf of the
Company or by or on behalf of the Holders of the Securities by virtue of this Article 6 which
otherwise would have been made to the Holders of the Securities shall, as among the Company, its
creditors other than holders of the Senior Indebtedness of the Company and the Holders of the
Securities, be deemed to be payment by the Company to or on account of the Senior Indebtedness of
the Company, it being understood that the provisions of this Article 6 are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness of the Company, on the other hand.



     Section 6.05 Obligation of the Company Unconditional. Nothing contained in this
Article 6 or elsewhere in this Indenture or in any Security is intended to or shall impair, as
between the Company and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the principal of and interest
on the Securities as and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders of the Securities and



- 16 -









 







creditors of the Company other than the holders of the Senior Indebtedness of the Company, nor
shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this Indenture, subject to
the rights, if any, under this Article 6 of the holders of Senior Indebtedness of the Company in
respect of cash, property or securities of the Company received upon the exercise of any such
remedy. Upon any distribution of assets of the Company referred to in this Article 6, the Trustee,
subject to the provisions of Sections 9.01 and 9.02, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending, or a certificate of
the liquidating trustee or agent or other Person making any distribution to the Trustee or the
Holders of the Securities, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness of the Company and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 6.



     Nothing contained in this Article 6 or elsewhere in this Indenture or in any Security is
intended to or shall affect the obligation of the Company to make, or prevent the Company from
making, at any time except during the pendency of any dissolution, winding up, liquidation or
reorganization proceeding, and except during the continuance of any default specified in Section
6.02 (not cured or waived), payments at any time of the principal of or interest on the Securities.



     Section 6.06 Knowledge of Trustee. Notwithstanding any provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment of monies to or by the Trustee until two Business Days after the Trustee
shall have received written notice thereof from the Company, any Securityholder or any Paying Agent
or the holder or representative of any class of Senior Indebtedness of the Company.



     Section 6.07 Application by Trustee of Monies Deposited With It. If at least two
Business Days prior to the date on which by the terms of this Indenture any monies deposited with
the Trustee or any Paying Agent may become payable for any purpose (including, without limitation,
the payment of either the principal of or the interest on any Security) the Trustee shall not have
received with respect to such monies the notice provided for in Section 6.06, then the Trustee
shall have full power and authority to receive such monies and to apply the same to the purpose for
which they were received and shall not be affected by any notice to the contrary which may be
received by it on or after such date. This Section shall be construed solely for the benefit of
the Trustee and such Paying Agent and shall not otherwise affect the rights of holders of Senior
Indebtedness of the Company.



     Section 6.08 Subordination Rights Not Impaired by Acts or Omissions of Company or Holders
of Senior Indebtedness of the Company. No right of any present or future holders of any Senior
Indebtedness of the Company to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with
the terms of this Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness of the Company may extend, renew,
modify or amend the terms of the Senior Indebtedness of the



- 17 -









 







Company or any security therefor and release, sell or exchange such security and otherwise
deal freely with the Company, all without affecting the liabilities and obligations of the parties
to this Indenture or the Holders. No provision in any supplemental indenture which affects the
superior position of the holders of Senior Indebtedness of the Company shall be effective against
the holders of Senior Indebtedness of the Company who have not consented thereto.



     Section 6.09 Securityholders Authorize Trustee To Effectuate Subordination of
Securities. Each Holder of Securities by acceptance thereof authorizes and expressly directs
the Trustee on its, his or her behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article 6 and appoints the Trustee its, his or her
attorney-in-fact for such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the immediate filing of a claim for the
unpaid balance of its, his or her Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof of debt in the
form required in such proceedings prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of Senior Indebtedness of the Company have the right to file and
are hereby authorized to file an appropriate claim for and on behalf of the Holders of said
Securities.



     Section 6.10 Right of Trustee To Hold Senior Indebtedness of the Company. The Trustee
shall be entitled to all of the rights set forth in this Article 6 in respect of any Senior
Indebtedness of the Company at any time held by it to the same extent as any other holder of Senior
Indebtedness of the Company and nothing in this Indenture shall be construed to deprive the Trustee
of any of its rights as such holder.



     Section 6.11 Article Six Not To Prevent Events of Default. The failure to make a
payment on account of principal or interest by reason of any provision in this Article 6 shall not
be construed as preventing the occurrence of an Event of Default under Section 8.01.



ARTICLE 7

GUARANTEE




     Section 7.01 Guarantee. The Guarantor hereby unconditionally guarantees (such
guarantee to be referred to herein as the “Guarantee”) to each Holder of a Security authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Securities or the obligations of the Company
hereunder or thereunder, (i) the due and punctual payment of the principal of and any interest on
the Securities, whether at maturity or on an Interest Payment Date, by acceleration or otherwise,
and interest on the overdue principal of and interest, if any, on the Securities, if lawful, and
all other obligations of the Company to the Holders or the Trustee hereunder or under the
Securities shall be promptly paid in full, all in accordance with the terms hereof and thereof
including all amounts payable to the Trustee under Section 9.07 hereof, and (ii) in case of any
extension of time of payment or renewal of any Securities or any of such other obligations, that
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.



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     If the Company fails to make any payment when due of any amount so guaranteed for whatever
reason, the Guarantor shall be obligated to pay the same immediately. The 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 Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of the Guarantor. The 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 Company, any right to require a
proceeding first against the Company, the benefit of discussion, protest, notice and all demand
whatsoever and covenants that this Guarantee shall not be discharged except by complete performance
of the obligations contained in the Securities, in this Indenture and in this Article 7. If any
Securityholder or the Trustee is required by any court or otherwise to return to the Company or the
Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to
the Company or the Guarantor, any amount paid by the Company or the Guarantor to the Trustee or
such Securityholder, this Article 7, to the extent theretofore discharged, shall be reinstated in
full force and effect. The Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Securityholders in respect of any obligations guaranteed hereby
until payment in full of all obligations guaranteed hereby. The Guarantor further agrees that, as
between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as provided in Article 8 for the
purposes of the 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
declaration of acceleration of such obligations as provided in Article 8 such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of
this Article 7. In addition, without limiting the foregoing, upon the effectiveness of an
acceleration under Article 8, the Trustee may make a demand for payment on the Securities under the
Guarantee provided hereunder and not discharged.



     The Guarantor shall be subrogated to all rights of the Holder of any Securities against the
Company in respect of any amounts paid to the Holder by the Guarantor pursuant to the provisions of
this 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 the Securities shall have been paid in full.



     The Guarantee set forth in this Section 7.01 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 7.02 Agreement To Subordinate. The provisions of this Article 7 shall apply
to the Securities of a Series to the extent specified in the Authorizing Resolution relating to
such Series. Each reference in this Article 7 to “a Security” or “the Securities” refers to the
Securities of each such Series so designated.



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     The Guarantor, for itself and its successors, and each Holder, by accepting the Securities,
agrees that the payment of the principal of, interest on and any other amounts due on the
Securities pursuant to the Guarantee are subordinated in right of payment, to the extent and in the
manner stated in this Article 7, to the prior payment in full of all Senior Indebtedness of the
Guarantor. Each Holder by accepting Securities authorizes and directs the Trustee on behalf of
such Holder to take such action as may be necessary or appropriate to effectuate, as between the
holders of Senior Indebtedness of the Guarantor and such Holder, the subordination provided in this
Article 7 and appoints the Trustee attorney-in-fact for such Holder for such purpose.



     This Article shall constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of, or continue to hold, Senior Indebtedness of the Guarantor, and such
provisions are made for the benefit of the holders of Senior Indebtedness of the Guarantor, and
such holders are made obligees hereunder and they and/or each of them may enforce such provisions.



     Section 7.03 Guarantor Not To Make Payments with Respect to Securities in Certain
Circumstances.



          (a) Upon the maturity of any Senior Indebtedness of the Guarantor by lapse of time,
acceleration (unless waived) or otherwise, all principal thereof and interest thereon shall first
be paid in full, or such payment duly provided for in cash or in a manner satisfactory to the
holders of such Senior Indebtedness of the Guarantor, before any payment, pursuant to the
Guarantee, is made on account of the principal of or interest on the Securities or to acquire any
of the Securities.




          (b) In the event that notwithstanding the provisions of this Section 7.03 the Guarantor shall
make any payment to the Trustee on account of the principal of or interest on the Securities after
the happening of a default in payment of the principal of or interest on Senior Indebtedness of the
Guarantor, then, unless and until such default shall have been cured or waived or shall have ceased
to exist, such payment (subject to the provisions of Sections 7.07 and 7.08) shall be held by the
Trustee, in trust for the benefit of, and shall be paid forthwith over and delivered to, the
holders of Senior Indebtedness of the Guarantor (pro rata as to each of such holders on the basis
of the respective amounts of Senior Indebtedness of the Guarantor held by them) or their
representative or the trustee under the indenture or other agreement (if any) pursuant to which
Senior Indebtedness of the Guarantor may have been issued, as their respective interests may
appear, for application to the payment of all Senior Indebtedness of the Guarantor remaining unpaid
to the extent necessary to pay all Senior Indebtedness of the Guarantor in full in accordance with
its terms, after giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness of the Guarantor.




     The Guarantor shall give prompt written notice to the Trustee of any default in the payment of
principal of or interest on any Senior Indebtedness of the Guarantor.



     Section 7.04 Guarantee Subordinated to Prior Payment of All Senior Indebtedness of the
Guarantor on Dissolution, Liquidation or Reorganization of the Guarantor. Upon any
distribution of assets of the Guarantor in any dissolution, winding up, liquidation or



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reorganization of the Guarantor (whether in bankruptcy, insolvency or receivership proceedings
or upon an assignment for the benefit of creditors or otherwise):



          (a) the holders of all Senior Indebtedness of the Guarantor shall first be entitled to receive
payment in full of the principal thereof and interest due thereon before the Holders of the
Securities are entitled to receive any payment on account of the principal of or interest on the
Securities pursuant to the Guarantee;




          (b) any payment or distribution of assets of the Guarantor of any kind or character, whether
in cash, property or securities, to which the Holders of the Securities or the Trustee on behalf of
the Holders of the Securities would be entitled except for the provisions of this Article 7,
including any such payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Guarantor being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other Person making such payment
or distribution directly to the holders of the Senior Indebtedness of the Guarantor or their
representative, or to the trustee under any indenture under which Senior Indebtedness of the
Guarantor may have been issued (pro rata as to each such holder, representative or trustee on the
basis of the respective amounts of unpaid Senior Indebtedness of the Guarantor held or represented
by each), to the extent necessary to make payment in full of all Senior Indebtedness of the
Guarantor remaining unpaid, after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness of the Guarantor, except that Holders
of the Securities would be entitled to receive securities that are subordinated to Senior
Indebtedness of the Guarantor to at least the same extent as the Securities; and




          (c) in the event that, notwithstanding the foregoing provisions of this Section 7.04, any
payment or distribution of assets of the Guarantor of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Guarantor being subordinated
to the payment of the Securities, shall be received by the Trustee or the Holders of the Securities
on account of principal of or interest on the Securities before all Senior Indebtedness of the
Guarantor is paid in full, or effective provision made for its payment, such payment or
distribution (subject to the provisions of Sections 7.07 and 7.08) shall be received and held in
trust for and shall be paid over to the holders of the Senior Indebtedness of the Guarantor
remaining unpaid or unprovided for or their representative, or to the trustee under any indenture
under which such Senior Indebtedness of the Guarantor may have been issued (pro rata as provided in
subsection (b) above), for application to the payment of such Senior Indebtedness of the Guarantor
until all such Senior Indebtedness of the Guarantor shall have been paid in full, after giving
effect to any concurrent payment or distribution or provision therefor to the holders of such
Senior Indebtedness of the Guarantor, except that Holders of the Securities would be entitled to
receive securities that are subordinated to Senior Indebtedness of the Guarantor to at least the
same extent as the Securities.




     Upon any distribution of assets of the Guarantor referred to in this Article 7, the Trustee,
subject to the provisions of Sections 9.01 and 9.02, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending, or a



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certificate of the liquidating trustee or agent or other Person making any distribution to the
Trustee or the Holders of the Securities, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness of the Guarantor and other
Indebtedness of the 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 7.



     The Guarantor shall give prompt written notice to the Trustee of any dissolution, winding up,
liquidation or reorganization of the Guarantor.



     Section 7.05 Securityholders To Be Subrogated to Rights of Holders of Senior Indebtedness
of the Guarantor. Subject to the payment in full of all Senior Indebtedness of the Guarantor,
the Holders of the Securities shall be subrogated equally and ratably to the rights of the holders
of the Senior Indebtedness of the Guarantor to receive payments or distributions of assets of the
Guarantor applicable to the Senior Indebtedness of the Guarantor until all amounts owing on the
Securities shall be paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Indebtedness of the Guarantor by or on behalf of the
Guarantor or by or on behalf of the Holders of the Securities by virtue of this Article 7 which
otherwise would have been made to the Holders of the Securities shall, as among the Guarantor, its
creditors other than holders of Senior Indebtedness of the Guarantor and the Holders of the
Securities, be deemed to be payment by the Guarantor to or on account of the Senior Indebtedness of
the Guarantor, it being understood that the provisions of this Article 7 are intended solely for
the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and
the holders of the Senior Indebtedness of the Guarantor, on the other hand.



     Section 7.06 Obligation of the Guarantor Unconditional. Nothing contained in this
Article 7 or elsewhere in this Indenture or in any Security is intended to or shall impair, as
between the Guarantor and the Holders of the Securities, the obligation of the Guarantor, which is
absolute and unconditional, to pay to the Holders of the Securities the principal of and interest
on the Securities as and when the same shall become due and payable in accordance with the terms of
the Guarantee, or is intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Guarantor other than the holders of the Senior Indebtedness of the
Guarantor, nor shall anything herein or therein prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon Default under this
Indenture, subject to the rights, if any, under this Article 7 of the holders of Senior
Indebtedness of the Guarantor in respect of cash, property or securities of the Guarantor received
upon the exercise of any such remedy.



     Nothing contained in this Article 7 or elsewhere in this Indenture or in any Security is
intended to or shall affect the obligation of the Guarantor to make, or prevent the Guarantor from
making, at any time except during the pendency of any dissolution, winding up, liquidation or
reorganization proceeding, and except during the continuance of any default specified in Section
7.03 (not cured or waived), payments at any time of the principal of or interest on the Securities
pursuant to the Guarantee.



     Section 7.07 Knowledge of Trustee. Notwithstanding any provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment of monies to or by the Trustee until two Business Days after



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the Trustee shall have received written notice thereof from the Guarantor, any Securityholder
or any Paying Agent or the holder or representative of any class of Senior Indebtedness of the
Guarantor.



     Section 7.08 Application by Trustee of Monies Deposited With It. If at least two
Business Days prior to the date on which by the terms of this Indenture any monies deposited with
the Trustee or any Paying Agent may become payable for any purpose (including, without limitation,
the payment of either the principal of or the interest on any Security) the Trustee shall not have
received with respect to such monies the notice provided for in Section 7.07, then the Trustee
shall have full power and authority to receive such monies and to apply the same to the purpose for
which they were received and shall not be affected by any notice to the contrary which may be
received by it on or after such date. This Section shall be construed solely for the benefit of
the Trustee and such Paying Agent and shall not otherwise affect the rights of holders of Senior
Indebtedness of the Guarantor.



     Section 7.09 Subordination Rights Not Impaired by Acts or Omissions of Guarantor or
Holders of Senior Indebtedness of the Guarantor. No right of any present or future holders of
any Senior Indebtedness of the Guarantor to enforce subordination as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor
or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the
Guarantor with the terms of this Indenture, regardless of any knowledge thereof which any such
holder may have or be otherwise charged with. The holders of Senior Indebtedness of the Guarantor
may extend, renew, modify or amend the terms of the Senior Indebtedness of the Guarantor, or any
security therefor and release, sell or exchange such security and otherwise deal freely with the
Guarantor, all without affecting the liabilities and obligations of the parties to the Indenture or
the Holders. No provision in any supplemental indenture which affects the superior position of the
holders of Senior Indebtedness of the Guarantor shall be effective against the holders of Senior
Indebtedness of the Guarantor who have not consented thereto.



     Section 7.10 Securityholders Authorize Trustee To Effectuate Subordination of
Guarantee. Each Holder of Securities by acceptance thereof authorizes and expressly directs
the Trustee on its, his or her behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article 7 and appoints the Trustee its, his or her
attorney-in-fact for such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Guarantor (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Guarantor, the immediate filing of a claim for the
unpaid balance, pursuant to the Guarantee, of its, his or her Securities, in the form required in
said proceedings and cause said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in such proceeding prior to 30 days before the expiration of
the time to file such claim or claims, then the holders of Senior Indebtedness of the Guarantor
have the right to file and are hereby authorized to file an appropriate claim for and on behalf of
the Holders of said Securities.



     Section 7.11 Right of Trustee To Hold Senior Indebtedness of the Guarantor. The
Trustee shall be entitled to all of the rights set forth in this Article 7 in respect of any Senior



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Indebtedness of the Guarantor at any time held by it to the same extent as any other holder of
Senior Indebtedness of the Guarantor, and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.



     Section 7.12 Article 7 Not To Prevent Events of Default. The failure to make a
payment on account of principal or interest by reason of any provision in this Article 7 shall not
be construed as preventing the occurrence of an Event of Default under Section 8.01.



     Section 7.13 Execution and Delivery of Guarantee. To evidence the Guarantee set forth
in this Article 7, the Guarantor hereby agrees that a notation of the Guarantee, substantially in
the form established by or pursuant to an Authorizing Resolution or in one or more supplemental
indentures in accordance with Section 2.01, shall be endorsed on each Security authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf of the Guarantor by
the Chairman of the Board, its President or one of its Vice Presidents under a facsimile of its
seal reproduced thereon.



     The Guarantor hereby agrees that its Guarantee shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of the Guarantee.



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



     The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor.



     Section 7.14 Subordination of Indebtedness Owed by the Company to the Guarantor. Any
indebtedness owed by the Company to the Guarantor shall be subordinate to all obligations of the
Company with respect to the Securities and this Indenture to the same extent as the Securities are
subordinated to Senior Indebtedness of the Company.



     Section 7.15 Officers’ Certificate. If there occurs an event referred to in the first
sentence of Section 7.04(c) or the first sentence of Section 7.04, the Guarantor shall promptly
give to the Trustee an Officers’ Certificate (on which the Trustee may conclusively rely)
identifying all holders of Senior Indebtedness of the Guarantor and the principal amount of Senior
Indebtedness of the Guarantor then outstanding held by each such holder and stating the reasons why
such Officers’ Certificate is being delivered to the Trustee.



ARTICLE 8

DEFAULTS AND REMEDIES




     Section 8.01 Events of Default. An “Event of Default” on a Series occurs if:



          (1) the Company or the Guarantor defaults in the payment of interest on any Security of the
Series when the same becomes due and payable and the default continues for a period of 30 days
whether or not such payment shall be prohibited by the provisions of Article 6 or Article 7; or




- 24 -









 








          (2) the Company or the Guarantor defaults in the payment of the principal of any Security of
the Series when the same becomes due and payable at maturity or upon redemption, whether or not
such payment shall be prohibited by the provisions of Article 6 or Article 7; or




          (3) the Company or the Guarantor fails to comply with any of its other agreements in the
Securities, the Guarantee or this Indenture applicable to the Series and such failure continues for
the period and after the notice specified below; or




          (4) there occurs a default in the payment of indebtedness of the Company, the Guarantor or any
Subsidiary under the terms of the instrument evidencing or securing such indebtedness permitting
the holder thereof to accelerate the payment of in excess of an aggregate of $5,000,000 in
principal amount of such indebtedness (after the lapse of applicable grace periods) or, in the case
of non-payment defaults, there occurs an acceleration of any such indebtedness if such acceleration
is not rescinded or annulled within 10 days after such acceleration; provided, the term
“indebtedness” as used in this Section 8.01(4) shall not include an acceleration of or default on
Non-Recourse Indebtedness (a) if the Guarantor would be able to declare a dividend pursuant to the
terms of such Series in the amount of the excess of the aggregate book value of all property (net
of any previous write-downs or reserves in respect of such property) subject to the Non-Recourse
Indebtedness being accelerated or in default over such Non-Recourse Indebtedness or (b) which
consists of a purchase money obligation, provided such purchase money obligation does not exceed
$5,000,000 in aggregate principal amount, whether or not the Guarantor is so diligently
contesting); or




          (5) a final judgment for the payment of money in an amount in excess of $5,000,000 shall be
entered against the Company, the Guarantor or any Subsidiary, and shall remain undischarged for a
period (during which execution shall not be effectively stayed) of 60 days after the date on which
the right to appeal has expired; provided the term “final judgment” shall not include a
Non-Recourse Judgment unless the book value of all property (net of any previous write-downs or
reserves in respect of such property) subject to such Non-Recourse Judgment exceeds the amount of
such Non-Recourse Judgment by more than $10,000,000;




          (6) there occurs an “Event of Default,” as that term is defined in the indenture relating to
the [        ]% [         ] due [        ] issued by [        ], a [        ] corporation
(“[        ]”), (each such series being hereinafter referred to as a “Previously Issued Series”);
provided that on the date of the occurrence, the outstanding principal amount of at least one
Previously Issued Series to which the occurrence relates exceeds $5,000,000; or




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




               (A) commences a voluntary case,



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



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



- 25 -









 





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



          (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:



               (A) provides for relief against the Company and the Guarantor in an involuntary case,



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



               (C) orders the liquidation of the Company and the Guarantor and the order or decree remains
unstayed and in effect for 90 days; or



          (9) the Guarantee shall for any reason (other than pursuant to its terms) cease to be in full
force and effect.




     The term “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.



     A default under clause (3) is not an Event of Default until the Trustee or the Holders of at
least 25% in principal amount of the Securities of the Series affected notify the Company of the
default and the Company does not cure the default within 60 days after receipt of the notice. The
notice must specify the default, demand that it be remedied and state that the notice is a “Notice
of Default.”



     Section 8.02 Acceleration. If an Event of Default (other than an Event of Default
under Section 8.01(7) or 8.01(8)) on a Series occurs and is continuing, the Trustee by notice to
the Company and the Person or Persons designated to receive notices for the Agent (or other Person
acting on behalf of the banks) under the Revolving Credit Agreement, or the Holders of at least 25%
in principal amount of the outstanding Securities of the Series by notice to the Company, the
Trustee and such Person or Persons (either such notice is referred to herein as an “Acceleration
Notice”) may declare the unpaid principal of and accrued and unpaid interest on all the Securities
of the Series to be due and payable if, with respect to such Series, (i)(a) no Designated Senior
Debt of the Company or the Guarantor is outstanding, or (b) if the Securities of the Series are not
subordinated to other indebtedness of the Company, immediately, or (ii) if Designated Senior Debt
of the Company or the Guarantor is outstanding and the Securities of the Series are subordinated to
other indebtedness of the Company, upon the earlier of (A) ten days after such Acceleration Notice
is received by the Company and (B) the acceleration of any Senior Indebtedness of the Company or
the Guarantor. If an Event of Default specified in Section 8.01(7) or 8.01(8) occurs, the unpaid
principal of and accrued and unpaid interest on the Securities then outstanding shall ipso facto
become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Securityholder. The Holders of a majority in principal amount of the Securities of
the Series by notice to the Trustee may rescind such declaration or acceleration and its
consequences if all existing Events of Default have been



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cured or waived (except nonpayment of principal or interest that has become due solely because
of the acceleration) and if the rescission would not conflict with any judgment or decree.



     The Company and the Guarantor (i) agree, promptly after execution of this Indenture, to notify
the Trustee in writing of the Person or Persons referred to in the first sentence of this Section
8.02 and (ii) agree, promptly after any change thereof, to so notify the Trustee. Any failure by
the Trustee or holders of Securities to give an Acceleration Notice to such Person or Persons will
not affect the substance or validity of the Acceleration Notice provided that it is otherwise given
in accordance with the first paragraph of this Section 8.02.



     Section 8.03 Other Remedies. If an Event of Default on a Series occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal or interest on the Series or to enforce the performance of any
provisions of the Securities or this Indenture and applicable to the Series.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by
law.



     Section 8.04 Waiver of Past Defaults. Subject to Section 12.02, the Holders of a
majority in principal amount of the Securities of a Series by notice to the Trustee may waive on
behalf of all Holders of Securities of the Series an existing Default and its consequences. When a
Default is waived, it is cured and stops continuing, but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.



     Section 8.05 Control by Majority. The Holders of a majority in principal amount of
the Securities of a Series may 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 it with respect
to such Series. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that is unduly prejudicial to the rights of another Securityholder, or that would
involve the Trustee in personal liability.



     Section 8.06 Limitation on Suits. A Securityholder may not pursue any remedy with
respect to this Indenture or the Series unless:



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




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




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




- 27 -









 








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




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




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



     Section 8.07 Rights of Holders To Receive Payment. Notwithstanding any other
provisions of this Indenture, the right of any Holder of a Security to receive payment of principal
of and interest on the Security, on or after the respective due dates expressed in the Security, or
to bring suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.



     Section 8.08 Collection Suit by Trustee. If an Event of Default in payment of
interest or principal specified in Section 8.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the Company, the
Guarantor or any other obligor on the Securities for the whole amount of principal and interest
remaining unpaid.



     Section 8.09 Trustee May File Proofs of Claim. The Trustee may 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 the Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities, including the Guarantor), its creditors or its property.



     Section 8.10 Priorities. If the Trustee collects any money pursuant to this Article
8, it shall pay out the money in the following order:



     First: to the Trustee for amounts due under Section 9.07;



     Second: to the holders of Senior Indebtedness of the Company as required by Article 6 and to
the holders of Senior Indebtedness of the Guarantor as required by Article 7;



     Third: to Securityholders of the Series for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Series for principal and interest, respectively; and



     Fourth: to the Company, or its designee.



     The Trustee may fix a record date and payment date for any payment to Securityholders.



     Section 8.11 Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including attorneys’ fees, against any party litigant in the suit, having due
regard to the



- 28 -









 







merits and good faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 8.07, or a suit by
Holders of more than 10% in principal amount of the Securities of the Series.



ARTICLE 9

TRUSTEE




     Section 9.01 Duties of Trustee.



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




          (b) Except during the continuance of an Event of Default:




               (1) The Trustee need perform only those duties that are specifically set forth in this
Indenture and no others.



               (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.



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




               (1) This paragraph does not limit the effect of paragraph (b) of this Section.



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



               (3) The Trustee shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it pursuant to Section 8.05.



          (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.




          (e) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree with the Company or the Guarantor, as the case may be.




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          (g) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.




     Section 9.02 Rights of Trustee. Subject to Section 9.01:



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




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Certificate or Opinion.




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




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




     Section 9.03 Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
its affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar or co-registrar may do the same with like rights. However, the Trustee must comply with
Sections 9.10 and 9.11.



     Section 9.04 Trustee Disclaimer. The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities, it shall not be accountable for the
Company’s use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.



     Section 9.05 Notice of Defaults. If a Default on a Series occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Securityholder notice of the
Default within 90 days after it occurs. Except in the case of a default in payment of principal or
interest on a Series, the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the interests of
Securityholders of the Series.



     Section 9.06 Reports by Trustee to Holders. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee shall mail to each
Securityholder, if required by TIA Section 313(a), a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b) and
Section 313(c).



     A copy of each report at the time of its mailing to Securityholders shall be filed with the
SEC and each stock exchange on which the Securities are listed. The Company shall notify the
Trustee when the Securities have been listed on any securities exchange.



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     Section 9.07 Compensation and Indemnity. The Company and the Guarantor shall pay to
the Trustee from time to time reasonable compensation for its services. The Trustee’s compensation
hereunder shall not be limited by any law on compensation relating to the trustee of an express
trust. The Company and the Guarantor shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s agents and counsel. The Company and the Guarantor shall indemnify and
hold harmless the Trustee against any loss or liability incurred by it in the acceptance or
administration of this trust or the performance of its duties hereunder. The Trustee shall notify
the Company and the Guarantor promptly of any claim for which it may seek indemnity. The Company
and the Guarantor shall defend the claim and the Trustee shall cooperate in the defense. In the
event that counsel to the Trustee shall advise counsel to the Company and the Guarantor that there
may be defenses reasonably available to the Trustee different than or additional to those available
to the Company and the Guarantor, then in such event the Trustee shall be permitted to employ
counsel of its choosing at the expense of the Company and the Guarantor. The Company and the
Guarantor need not pay for any settlement made without their consent. The Company and the
Guarantor need not reimburse any expense or indemnify against any loss or liability incurred by the
Trustee through negligence, bad faith or with willful misconduct. The indemnity contained in this
Section 9.07 shall survive the resignation or removal of the Trustee and the termination of this
Indenture.



     To ensure the Company’s and the Guarantor’s payment obligations in this Section, the Trustee
shall have a claim prior to the Securities on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular Securities.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 8.01(7) or (8) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.



     Section 9.08 Replacement of Trustee. The Trustee may resign by so notifying the
Company. The Holders of a majority in principal amount of the Securities may remove the Trustee by
so notifying the Trustee to be removed and may appoint a successor Trustee with the Company’s and
the Guarantor’s consent. The Company or the Guarantor may remove the Trustee if:



          (1) the Trustee fails to comply with Section 9.10;




          (2) the Trustee is adjudged a bankrupt or an insolvent;




          (3) a receiver or other public officer takes charge of the Trustee or its property; or




          (4) the Trustee becomes incapable of acting.




     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all



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property held by it as Trustee to the successor Trustee (subject to the prior claim provided
by Section 9.07). Any resignation or removal of the Trustee and any appointment of a successor
Trustee shall become effective upon acceptance of appointment by the successor Trustee. The
successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.
A successor Trustee shall mail notice of its succession to each Securityholder.



     If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the expense of the Company), the Company or the Holders of
a majority in principal amount of the Securities may petition any court of competent jurisdiction
for the appointment of a successor Trustee.



     If the Trustee fails to comply with Section 9.10, any Securityholder may, subject to Section
8.11, petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.



     Section 9.09 Successor Trustee by Merger, etc. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate trust assets to,
another corporation, the resulting, surviving or transferee corporation without any further act
shall be the successor Trustee.



     Section 9.10 Eligibility; Disqualification. This Indenture shall always have a
Trustee who satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have a combined
capital and surplus of at least $15,000,000 as set forth in the most recent published annual report
of condition. The Trustee shall comply with TIA Section 310(b).



     Section 9.11 Preferential Collection of Claims Against Company. The Trustee shall
comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.



ARTICLE 10

CONVERSION OF SECURITIES




     Section 10.01 Applicability of Article. Securities of any Series which are
convertible into Common Stock at the option of the Holder shall be convertible in accordance with
their terms and unless the Authorizing Resolution provides otherwise, in accordance with this
Article. Each reference in this Article 10 to “a Security” or “the Securities” refers to the
Securities of the particular Series that is convertible into Common Stock. If more than one Series
of Securities with conversion privileges are outstanding at any time, the provisions of this
Article 10 shall be applied separately to each such Series.



     Section 10.02 Conversion Privilege. Subject to and upon compliance with the
provisions of this Article 10, the Holder of any Security so designated shall have the right, at
its, his or her option, at any time prior to the close of business on the date specified in the
Securities of such Series (or if such Security or portion thereof is called for redemption prior to
such date, then in respect of such Security or portion thereof to and including but not after the
close of business on the second day (or, if such day is not a Business Day, then on the next
following Business Day) preceding the date fixed for such redemption) to convert the principal
amount of any such



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Security, or any portion of such principal amount which is $1,000 or an integral multiple
thereof, into that number of fully paid and non-assessable shares of the Guarantor’s Common Stock
(calculated as to each conversion to the nearest 1/100th of a share) obtained by dividing the
principal amount of the Security or portion thereof to be converted by the Conversion Price and by
surrender of the Security so to be converted in whole or in part, such surrender to be made in the
manner provided in Section 10.03. Notwithstanding the previous sentence, if the Company shall fail
to redeem a Security which has been called for redemption, the Holder of such Security shall retain
the right to convert such Security as provided in this Article 10.



     Section 10.03 Manner of Exercise of Conversion Privilege. In order to exercise a
conversion privilege, the Holder of any Security to be converted in whole or in part shall
surrender such Security at any of the offices or agencies to be maintained for such purpose by the
Company pursuant to Section 2.03, and shall give notice to the Company and the Guarantor in the
form provided in the Security, duly executed, at such office or agency that the Holder elects to
convert such Security or the portion thereof specified in said notice. Such notice shall also
state the name or names, together with the address or addresses, in which the certificate or
certificates for shares of Common Stock which shall be issuable on such conversion shall be issued.
Each Security surrendered for conversion shall, unless the shares issuable on conversion are to be
issued in the same name as the name in which such Security is registered, be accompanied by
instruments of transfer, in form satisfactory to the Guarantor, duly executed by the Holder or its,
his or her duly authorized attorney. Securities so surrendered during the period from the close of
business on a Record Date, or the next preceding Business Day if such Record Date is not a Business
Day, preceding any Interest Payment Date to the opening of business on such Interest Payment Date
(excluding Securities or portions thereof called for redemption during such period) shall also be
accompanied by payment in next-day funds or other funds acceptable to the Guarantor of an amount
equal to the interest payable on such Interest Payment Date on the principal amount of such
Security then being converted; provided, however, that, if the Company shall default on the payment
of said interest, said funds shall be returnable to the payor thereof. As promptly as practicable
after the surrender of such Security, as aforesaid, the Guarantor shall issue and shall deliver at
such office or agency to such Holder, or on its, his or her written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the conversion of such
Security or portion thereof in accordance with the provisions of this Article 10 and any fractional
interest in respect of a share of Common Stock arising upon such conversion shall be settled as
provided in Section 10.04. In case any Security of a denomination greater than $1,000 shall be
surrendered for partial conversion, the Company and the Guarantor shall execute and the Trustee
shall authenticate and deliver to or upon the order of the Holder of the Security so surrendered,
at the expense of the Company, a new Security or Securities and Guarantee or Guarantees in
authorized denominations in an aggregate principal amount equal to the unconverted portion of the
surrendered Security. Such conversion shall be deemed to have been effected immediately prior to
the close of business on the date on which such Security shall have been surrendered and such
notice received by the Company and the Guarantor as aforesaid, and the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record of the shares
represented thereby at such time and such conversion shall be at the Conversion Price in effect at
such time, unless the stock transfer books of the Guarantor shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or holders of record at the
close of business on the next



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succeeding day on which such stock transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date upon which such Security shall have been surrendered and
such notice received by the Company and the Guarantor. Subject to the aforesaid requirement for a
payment in the event of conversion after the close of business on a Record Date preceding an
Interest Payment Date, no payment or adjustment shall be made on conversion for interest accrued on
the Securities surrendered for conversion or for dividends on the Common Stock delivered on such
conversion.



     Section 10.04 Payment in Lieu of Fractional Shares . No fractional shares of Common
Stock shall be issued upon conversion of the Securities. Instead of any fractional interest in a
share of Common Stock which would otherwise be deliverable upon the conversion of any Security or
Securities, the Company and/or the Guarantor shall make an adjustment therefor to the nearest
1/100th of a share in cash at the Current Market Price thereof at the close of business on the
Business Day next preceding the day of conversion. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of full shares issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the Securities, or
specified portions thereof to be converted, so surrendered.



     Section 10.05 Adjustment of Conversion Price. The Conversion Price shall be adjusted
from time to time as follows:



          (a) In case the Guarantor shall hereafter (i) pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares of Common Stock into
a greater number of shares, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares, or (iv) issue by reclassification of its Common Stock any shares of Capital Stock
of the Guarantor, the Conversion Price in effect immediately prior to such action shall be adjusted
so that the Holder of any Security thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock or other Capital Stock of the Guarantor which he would
have owned immediately following such action had such Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become effective immediately
after the record date in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination or reclassification.
If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive shares of two or more
classes of Capital Stock or shares of Common Stock and other Capital Stock of the Guarantor, the
Board of Directors (whose determination shall be conclusive and shall be described in a statement
filed with the Trustee and with the Registrar) shall determine in an equitable manner the
allocation of the adjusted Conversion Price between or among shares of such classes of Capital
Stock or shares of Common Stock and other Capital Stock.




          (b) In case the Guarantor shall hereafter issue rights or warrants to holders of its
outstanding shares of Common Stock generally entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the Common Stock on the record date
mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price in



- 34 -









 






effect immediately prior to the date of issuance of such rights or warrants by a fraction of
which the numerator shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the aggregate offering price of
the total number of shares so offered would purchase at such Current Market Price, and of which the
denominator shall be the number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive such rights or warrants.




          (c) In case the Guarantor shall hereafter distribute to holders of its outstanding Common
Stock generally evidences of its indebtedness or assets (excluding any cash dividend paid from
retained earnings of the Guarantor and dividends or distributions payable in stock for which
adjustment is made pursuant to subsection (a) of this Section 10.05) or rights or warrants to
subscribe to securities of the Guarantor (excluding those referred to in subsection (b) of this
Section 10.05), then in each such case the Conversion Price of the shares of Common Stock shall be
adjusted so that the same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the date of such distribution by a fraction of which the numerator
shall be the Current Market Price per share of the Common Stock on the record date mentioned below
less the then fair market value (as determined by the Board of Directors, whose determination shall
be conclusive and shall be described in a statement filed with the Trustee and with the Registrar)
of the portion of the evidences of indebtedness or assets so distributed to the holder of one share
of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock,
and of which the denominator shall be such Current Market Price per share of Common Stock. Such
adjustment shall become effective immediately after the record date for the determination of
shareholders entitled to receive such distribution.




          (d) In any case in which this Section 10.05 shall require that an adjustment be made
immediately following a record date, the Guarantor may elect to defer (but only until five Business
Days following the filing by the Company with the Trustee and the Registrar of the certificate of
independent public accountants described in subsection (f) of this Section 10.05) issuing to the
Holder of any Security converted after such record date the shares of Common Stock issuable upon
such conversion over and above the shares of Common Stock issuable upon such conversion on the
basis of the Conversion Price prior to adjustment.




          (e) No adjustment in the Conversion Price shall be required unless such adjustment would
require an increase or decrease of at least 1% of such price; provided, however, that any
adjustments which by reason of this subsection (e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment, and provided further that adjustment
shall be required and made in accordance with the provisions of this Article 10 (other than this
subsection (e)), not later than such time as may be required in order to preserve the tax-free
nature of a distribution to the holders of Securities or Common Stock. All calculations under this
Section 10.05 shall be made to the nearest cent or to the nearest 1/100th of a share, as the case
may be. Anything in this Section 10.05 to the contrary notwithstanding, the Guarantor shall be
entitled to make such reductions in the Conversion Price, in addition to those required by this
Section 10.05, as it in its discretion shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights to purchase stock or


- 35 -









 







securities, or distribution of securities convertible into or exchangeable for stock hereafter
made by the Guarantor to its shareholders shall not be taxable.




          (f) Whenever the Conversion Price is adjusted as herein provided, (i) the Company and the
Guarantor shall promptly file with the Trustee and the Registrar a certificate of a firm of
independent public accountants setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the manner of computing the
same, which certificate shall be conclusive evidence of the correctness of such adjustment and (ii)
a notice stating that the Conversion Price has been adjusted and setting forth the adjusted
Conversion Price shall forthwith be given by the Company and the Guarantor to the Holders in the
manner provided in Section 13.02. Subject to TIA Section 315(a), (c) and (d), the Trustee and any
conversion agent shall be under no duty or responsibility with respect to any such certificate or
the certificate provided for in Section 10.10 except to exhibit the same from time to time to any
Holder of a Security desiring an inspection of such certificate.




          (g) In the event that at any time as a result of an adjustment made pursuant to subsection (a)
of this Section 10.05, the Holder of any Security thereafter surrendered for conversion shall
become entitled to receive any shares of the Guarantor other than shares of Common Stock,
thereafter the Conversion Price of such other shares so receivable upon conversion of any Security
shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock contained in this Article 10.




     Section 10.06 Notice of Certain Corporate Action. In the event:



          (a) the Guarantor shall take any action which would require an adjustment in the Conversion
Price pursuant to Section 10.05(c); or




          (b) the Guarantor shall authorize the granting to the holders of its Common Stock (as a class)
of rights or warrants to subscribe for or purchase any shares of stock of any class or of any other
rights; or




          (c) there shall be any capital reorganization or reclassification of the Common Stock (other
than a subdivision or combination of the outstanding Common Stock and other than a change in the
par value of the Common Stock), or any consolidation or merger to which the Guarantor is a party or
any statutory exchange of securities with another corporation and for which approval of any
shareholders of the Guarantor is required, or any sale or transfer of all or substantially all of
the assets of the Guarantor; or




          (d) there shall be a voluntary or involuntary dissolution, liquidation or winding-up of the
Guarantor; then the Company and the Guarantor shall cause to be filed with the Trustee and the
Registrar, and shall cause to be given to the Holders, in the manner provided in Section 13.02, at
least 14 days prior to the applicable date hereinafter specified, a notice stating (i) the date on
which a record is to be taken for the purpose of such distribution or rights, or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to be entitled to such
distribution or rights are to be determined, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or



- 36 -









 






winding-up is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice or any
defect therein shall not affect the legality or validity of the proceedings described in subsection
(a), (b), (c) or (d) of this Section 10.06.




     Section 10.07 Guarantor to Provide Stock. The Guarantor covenants that it will at all
times reserve and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock or its issued shares of Common Stock held in its
treasury, or both, for the purpose of effecting conversions of Securities, the full number of
shares of Common Stock deliverable upon the conversion of all outstanding Securities not
theretofore converted. For purposes of this Section 10.07, the number of shares of Common Stock
which shall be deliverable upon the conversion of all outstanding Securities shall be computed as
if at the time of computation all outstanding Securities were held by a single Holder.



     Before taking any action which would cause an adjustment reducing the Conversion Price below
the then par value (if any) of the shares of Common Stock deliverable upon conversions of the
Securities, the Guarantor will take any corporate action which may, in the opinion of its counsel,
be necessary in order that the Guarantor may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.



     The Guarantor will endeavor to list the shares of Common Stock required to be delivered upon
conversion of Securities prior to such delivery upon each national securities exchange, if any,
upon which the outstanding Common Stock is listed at the time of such delivery.



     Prior to the delivery of any securities which the Guarantor shall be obligated to deliver upon
conversion of the Securities, the Guarantor will endeavor to comply with all federal and state laws
and regulations thereunder requiring the registration of such securities with, or any approval of
or consent to the delivery thereof by, any governmental authority.



     Section 10.08 Taxes on Conversions. The Company and/or the Guarantor will pay any and
all documentary stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of shares of Common Stock on conversions of Securities pursuant hereto; provided, however,
that neither the Company nor the Guarantor shall be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Common Stock in a name other
than that of the Holder of the Securities to be converted and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to the Company and/or
the Guarantor the amount of any such tax or has established, to the satisfaction of the Company and
the Guarantor, that such tax has been paid.



     Section 10.09 Covenant as to Stock. The Guarantor covenants that all shares of Common
Stock which may be delivered upon conversions of Securities will upon delivery be duly and validly
issued and fully paid and non-assessable, free of all liens and charges and not subject to any
preemptive rights.



- 37 -









 





     Section 10.10 Consolidation or Merger. Notwithstanding any other provision herein to
the contrary, in case of any consolidation or merger to which the Guarantor is a party other than a
merger or consolidation in which the Guarantor is the continuing corporation, or in case of any
sale or conveyance to another corporation of the property of the Guarantor as an entirety or
substantially as an entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a third corporation
into the Guarantor), there shall be no adjustments under Section 10.05 but the Holder of each
Security then outstanding shall have the right thereafter to convert such Security into the kind
and amount of securities, cash or other property which he would have owned or have been entitled to
receive immediately after such consolidation, merger, statutory exchange, sale or conveyance had
such Security been converted immediately prior to the effective date of such consolidation, merger,
statutory exchange, sale or conveyance and in any such case, if necessary, appropriate adjustment
shall be made in the application of the provisions set forth in this Article 10 with respect to the
rights and interests thereafter of the Holders of the Securities, to the end that the provisions
set forth in this Article 10 shall thereafter correspondingly be made applicable, as nearly as may
reasonably be, in relation to any shares of stock or other securities or property thereafter
deliverable on the conversion of the Securities. Any such adjustment shall be made by and set
forth in a supplemental indenture executed by the Company, the Guarantor and the Trustee and
approved by a firm of independent public accountants, evidenced by a certificate to that effect;
and any adjustment so approved shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment.



     The above provisions of this Section 10.10 shall similarly apply to successive consolidations,
mergers, statutory exchanges, sales or conveyances.



     The Company shall give notice of the execution of such a supplemental indenture to the Holders
of Securities in the manner provided in Section 13.02 within 30 days after the execution thereof.



     The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in such supplemental indenture relating either to the kind or amount of shares
of stock or securities or property receivable by Holders upon the conversion of their Securities
after any such consolidation, merger, statutory exchange, sale or conveyance, or to any adjustment
to be made with respect thereto.



     Section 10.11 Disclaimer of Responsibility for Certain Matters. Neither the Trustee
nor the Registrar shall at any time be under any duty or responsibility to any Holder of Securities
to determine whether any facts exist which may require any adjustment of the Conversion Price, or
with respect to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor the Registrar shall be accountable with respect to the listing or
registration referred to in Section 10.07 or the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time be issued or
delivered upon the conversion of any Security; and neither the Trustee nor the Registrar makes any
representation with respect thereto. Neither the Trustee nor the Registrar shall be responsible
for any failure of the Guarantor to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or to make any cash payment upon the



- 38 -









 







surrender of any Security for the purpose of conversion or, subject to TIA Section 315(a), (c)
and (d), to comply with any of the covenants contained in this Article 10.



ARTICLE 11

DISCHARGE OF INDENTURE




     Section 11.01 Termination of the Company’s and the Guarantor’s Obligations.
Securities of a Series may be defeased in accordance with their terms and, unless the Authorizing
Resolution provides otherwise, in accordance with this Article.



     The Company may terminate all of its obligations under the Securities of a Series and this
Indenture, to the extent its obligations under this Indenture relate to that Series, and the
obligations of the Guarantor shall terminate if all Securities of a Series previously authenticated
and delivered (other than destroyed, lost or stolen Securities which have been replaced or paid)
have been delivered to the Trustee for cancellation or if:



          (1) the Securities 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;
and




          (2) the Company irrevocably deposits in trust with the Trustee money sufficient to pay
principal of and interest on the outstanding Securities to maturity or redemption, as the case may
be. The Company may make the deposit only if Article 6 permits it. Immediately after making the
deposit, the Company shall give notice of such event and proposed date of payment to each
Securityholder.




     The Company’s obligations and, to the extent applicable, the Guarantor’s obligations, in
Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 9.07, 9.08 and 11.03 and Article 10, however, shall
survive until the Securities are no longer outstanding. Thereafter, the Company’s obligations and,
to the extent applicable, the Guarantor’s obligations, in Sections 9.07 and 11.03 shall survive.



     After a deposit, the Trustee upon request shall acknowledge in writing the discharge of the
Company’s obligations under the Securities, the Guarantor’s obligations under the Guarantee and
their obligations under the Indenture except for those surviving obligations specified above.



     Section 11.02 Application of Trust Money. The Trustee shall hold in trust money
deposited with it pursuant to Section 11.01. It shall apply the deposited money through the Paying
Agent and in accordance with this Indenture to the payment of principal and interest on the
Securities.



     Section 11.03 Repayment to Company. The Trustee and the Paying Agent shall promptly
pay to the Company upon request any excess money held by them at any time. The Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for the payment of
principal or interest (including interest, if any, earned on such money) that remains unclaimed for
two years; provided, however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each



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Holder notice that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. After payment to the Company,
Securityholders entitled to any of such money must look to the Company or, if applicable, the
Guarantor for payment as general creditors unless applicable abandoned property law designates
another person and all liability of the Trustee or Paying Agent with respect to such money shall
thereupon cease.



ARTICLE 12

AMENDMENTS, SUPPLEMENT AND WAIVERS




     Section 12.01 Without Consent of Holders. The Company may amend or supplement this
Indenture or the Securities without notice to or consent of any Securityholder:



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




          (2) to comply with Section 5.01;




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




          (4) to make any change that does not adversely affect the rights of any Securityholder.




     Section 12.02 With Consent of Holders. The Company may amend or supplement this
Indenture or the Securities without notice to any Securityholder but with the written consent of
the Holders of at least a majority in principal amount of the Securities of all Series affected by
the amendment voting as a class. The Holders of a majority in principal amount of the Securities
may waive compliance by the Company with any provision of this Indenture or the Securities without
notice to any Securityholder. However, without the consent of each Securityholder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 8.04, may not:



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




          (2) reduce the rate of or extend the time for payment of interest on any Security;




          (3) reduce the principal of or extend the fixed maturity of any Security or alter the
redemption provisions with respect thereto;




          (4) waive a default in the payment of the principal of or interest on any Security;




          (5) modify the provisions of Article 6 (subordination) or Article 7 (guarantee) in a manner
adverse to the Holders;




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          (6) make any security payable in money other than that stated in the Security;




          (7) if applicable, make any change that adversely affects the right to convert or the
Conversion Price for any Security; or




          (8) make any change in Section 8.04 or 8.07 or this Section 12.02.




     After an amendment under this Section 12.02 becomes effective, the Company shall mail to the
Holders a notice briefly describing the amendment.



     Section 12.03 Compliance with Trust Indenture Act. Every amendment to or supplement
of this Indenture or the Securities shall comply with the TIA as then in effect.



     Section 12.04 Revocation and Effect of Consents. A consent to an amendment,
supplement or waiver by a Holder of a Security shall bind the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to the Security or portion of a Security of such
Holder. The Trustee must receive the notice of revocation before the date the amendment,
supplement or waiver becomes effective.



     After an amendment, supplement or waiver becomes effective, it shall bind every Securityholder
unless it makes a change described in clauses (1) through (8) of Section 12.02. In that case the
amendment, supplement or waiver shall bind each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security.



     Section 12.05 Notation on or Exchange of Securities. If an amendment, supplement or
waiver changes the terms of a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the
changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so
determine, the Company in exchange for the Security shall issue and the Trustee shall authenticate,
a new Security that reflects the changed terms.



     Section 12.06 Trustee to Sign Amendments, etc. The Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article if the amendment, supplement or waiver
does not adversely affect the rights or duties of the Trustee. If it does, the Trustee may but
need not sign it. In signing any amendment, supplement or waiver, the Trustee may rely on an
Opinion of Counsel which shall state that such amendment, supplement or waiver is permitted under
this Article 12.



ARTICLE 13

MISCELLANEOUS




     Section 13.01 Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies, or conflicts with another provision which is required to be included in this
Indenture by the TIA or the TIA as amended after the date hereof, the required provision shall
control.



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     Section 13.02 Notices. Any notice or communication shall be sufficiently given if in
writing and delivered in person or mailed by first-class mail addressed as follows: if to the
Company or the Guarantor:


[Name]

[Address]

[Address]

Attention: Chief Financial Officer



with a copy to:



[Name]

[Address]

[Address]



if to the Trustee:



[                     ]

[Address]

[Address]

Attention: [                     ]




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



     Any notice or communication mailed to a Securityholder shall be mailed to him at his address
as it appears on the registration books of the Registrar and shall be sufficiently given to him if
so mailed within the time prescribed. In addition, a copy of each such notice or communication
shall be mailed to the Trustee at the address specified above.



     Failure to mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
If the Company or the Guarantor mails a notice or communication to Securityholders, it shall mail a
copy of such notice to the Trustee and each agent at the same time.



     Section 13.03 Communication by Holders with Other Holders. Securityholders may
communicate pursuant to TIA Section 312(b) with other Securityholders with respect to their rights
under this Indenture or the Securities. The Company, the Guarantor, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).



     Section 13.04 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:



          (1) an Officers’ Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with; and




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          (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.




     Section 13.05 Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
shall include:



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




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




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




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




     Section 13.06 When Treasury Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities of a Series have concurred in any direction,
waiver or consent, Securities of the Series owned by the Company or the Guarantor or by any person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or the guarantor shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only
Securities of the Series which the Trustee knows are so owned shall be so disregarded.



     Section 13.07 Rules by Trustee, Paying Agent, Registrar. The Trustee may make
reasonable rules for action by or a meeting of Securityholders. The Paying Agent or Registrar each
may make reasonable rules for its functions.



     Section 13.08 Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are not required to be open. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening period.



     Section 13.09 Governing Law. The laws of the State of New York shall govern this
Indenture, the Securities and the Guarantee without regard to principles of conflicts of law.



     Section 13.10 No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret another indenture, loan or debt agreement of the Company, the Guarantor or a
Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.



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     Section 13.11 No Recourse Against Others. All liability described in paragraph 20 of
the Securities of any director, officer, employee or shareholder, as such, of the Company or the
Guarantor is waived and released.



     Section 13.12 Successors. All agreements of the Company or the Guarantor in this
Indenture and the Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.



     Section 13.13 Duplicate Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     Section 13.14 Counterparts. This Indenture may be executed in any number of
counterparts, all of which shall together constitute one and the same instrument. This Indenture
shall become binding when one or more counterparts hereof, individually or taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.



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SIGNATURES




	 	 	 	 	 
	Dated:	 	[                             ], as Issuer
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	Attest:
	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	Dated:	 	[                             ], as Guarantor
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	Attest:
	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	Dated:	 	[                             ], as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	Attest:
	 	 	 	 
	 
	 	 	 	 
	 	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 







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