exv4w3







EXHIBIT 4.3




[THE BON-TON STORES, INC.]




Company




 

INDENTURE




Dated as of                                         




 

Trustee





 









 








CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	12.03
	(c)
	 	12.03
	313(a)
	 	7.06
	(b)
	 	7.06
	(c)
	 	7.06; 12.02
	(d)
	 	7.06
	314(a)
	 	4.03; 12.02; 12.05
	(c)(1)
	 	12.04
	(c)(2)
	 	12.04
	(c)(3)
	 	N.A.
	(e)
	 	12.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05; 12.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	2.12
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	12.01
	(b)
	 	N.A.
	(c)
	 	12.01








 




			
	 	 	N.A. means not applicable.
	 
	*	 	This Cross Reference Table is not part of the Indenture.




 









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	Definitions
	 	 	1	 
	Other Definitions
	 	 	8	 
	Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	Rules of Construction
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 2 THE NOTES
	 	 	9	 
	Amount Unlimited; Issuable in Series
	 	 	9	 
	Form and Dating; Execution and Authentication
	 	 	12	 
	Registrar and Paying Agent
	 	 	13	 
	Paying Agent to Hold Money in Trust
	 	 	14	 
	Holder Lists
	 	 	14	 
	Transfer and Exchange
	 	 	14	 
	Replacement Notes
	 	 	19	 
	Outstanding Notes
	 	 	19	 
	Treasury Notes
	 	 	20	 
	Temporary Notes
	 	 	20	 
	Cancellation
	 	 	20	 
	Defaulted Interest
	 	 	20	 
	CUSIP Numbers
	 	 	21	 
	 
	 	 	 	 
	ARTICLE 3 REDEMPTION AND PREPAYMENT
	 	 	21	 
	Optional Redemption
	 	 	21	 
	Notices to Trustee
	 	 	21	 
	Selection of Notes to Be Redeemed or Purchased
	 	 	21	 
	Notice of Redemption
	 	 	22	 
	Effect of Notice of Redemption
	 	 	23	 
	Deposit of Redemption or Purchase Price
	 	 	23	 
	Notes Redeemed or Purchased in Part
	 	 	23	 
	Mandatory Redemption
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	24	 
	Payment of Notes
	 	 	24	 
	Maintenance of Office or Agency
	 	 	24	 
	Reports
	 	 	25	 
	Compliance Certificate
	 	 	26	 
	Stay, Extension and Usury Laws
	 	 	26	 
	Legal Existence
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 5 SUCCESSORS
	 	 	27	 
	Merger, Consolidation, or Sale of Assets
	 	 	27	 






 









 






	 	 	 	 	 
	 	 	Page	 
	Successor Person Substituted
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 6 DEFAULTS AND REMEDIES
	 	 	28	 
	Events of Default
	 	 	28	 
	Acceleration
	 	 	29	 
	Other Remedies
	 	 	30	 
	Waiver of Past Defaults
	 	 	31	 
	Control by Majority
	 	 	31	 
	Limitation on Suits
	 	 	31	 
	Rights of Holders of Notes to Receive Payment
	 	 	32	 
	Collection Suit by Trustee
	 	 	32	 
	Trustee May File Proofs of Claim
	 	 	32	 
	Priorities
	 	 	33	 
	Undertaking for Costs
	 	 	33	 
	Remedies Subject to Applicable Law
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 7 TRUSTEE
	 	 	34	 
	Duties of Trustee
	 	 	34	 
	Rights of Trustee
	 	 	35	 
	Individual Rights of Trustee
	 	 	36	 
	Trustee’s Disclaimer
	 	 	36	 
	Notice of Defaults
	 	 	36	 
	Reports by Trustee to Holders of the Notes
	 	 	36	 
	Compensation and Indemnity
	 	 	37	 
	Replacement of Trustee
	 	 	37	 
	Section 7.09 Successor Trustee by Merger, etc.
	 	 	38	 
	Eligibility; Disqualification
	 	 	39	 
	Preferential Collection of Claims Against Company
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	39	 
	Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	39	 
	Legal Defeasance and Discharge
	 	 	39	 
	Covenant Defeasance
	 	 	40	 
	Conditions to Legal or Covenant Defeasance
	 	 	40	 
	Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous
Provisions
	 	 	42	 
	Repayment to Company
	 	 	42	 
	Reinstatement
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	43	 
	Without Consent of Holders of Notes
	 	 	43	 
	With Consent of Holders of Notes
	 	 	45	 
	Compliance with Trust Indenture Act
	 	 	46	 
	Revocation and Effect of Consents
	 	 	47	 
	Notation on or Exchange of Notes
	 	 	47	 
	Section 9.06 Trustee to Sign Amendments, etc.
	 	 	47	 
	Reference in Notes to Supplemental Indentures
	 	 	47	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 10 [RESERVED]
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 11 SATISFACTION AND DISCHARGE
	 	 	48	 
	Satisfaction and Discharge
	 	 	48	 
	Application of Trust Money
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 12 MISCELLANEOUS
	 	 	49	 
	Trust Indenture Act Controls
	 	 	49	 
	Notices
	 	 	49	 
	Communication by Holders of Notes with Other Holders of Notes
	 	 	51	 
	Certificate and Opinion as to Conditions Precedent
	 	 	51	 
	Statements Required in Certificate or Opinion
	 	 	51	 
	Rules by Trustee and Agents
	 	 	52	 
	No Personal Liability of Directors, Officers, Employees and
Stockholders
	 	 	52	 
	Governing Law
	 	 	52	 
	No Adverse Interpretation of Other Agreements
	 	 	52	 
	Successors
	 	 	52	 
	Severability
	 	 	52	 
	Counterpart Originals
	 	 	52	 
	Section 12.13 Table of Contents, Headings, etc.
	 	 	53	 
	Waiver of Jury Trial
	 	 	53	 
	Force Majeure
	 	 	53	 







iii











 





     INDENTURE dated as of [                                        ] among [The Bon-Ton Stores, Inc.] a Pennsylvania
corporation, and [                                                            ,] as trustee.



     The Company (as defined) and the Trustee (as defined) agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders (as defined) of the Notes (as defined):



RECITALS




     A. The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its senior indebtedness, notes, bonds, debentures or other
evidences of indebtedness (collectively, the “Notes”) unlimited as to principal amount to bear such
rates of interest, to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as in this Indenture provided.



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



AGREEMENT




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



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE



Section 1.01 Definitions.




     “Additional Interest” means all amounts, if any, payable pursuant to the provisions relating
to additional interest described under Section 6.02 as the sole remedy for an Event of Default
relating to the failure to comply with the reporting obligations described under Section 4.03, and
for any failure to comply with the requirements of Section 314(a) of the TIA.



     “Additional Notes” means additional Notes of a series (other than the initially issued Notes
of such series) issued under this Indenture in accordance with Section 2.02 hereof, as part of the
same series as such initially issued Notes.



     “Affiliate” means, when used with reference to any Person:




     (1) any other Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with, the referent Person or such other Person, as the case may
be, or




     (2) any director, officer or partner of such Person or any Person specified in clause
(1) above.



 









 




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




     “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.



     “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer or exchange.



     “Bankruptcy Law” means United States Bankruptcy Code and any other bankruptcy, insolvency,
receivership, reorganization, moratorium or similar law providing relief to debtors, in each case,
as from time to time amended and applicable to the relevant case.



     “Board” means (1) with respect to a corporation, the board of directors of the corporation or
any committee thereof duly authorized to act on behalf of such board; (2) with respect to a
partnership, the board of directors (or any committee thereof duly authorized to act on behalf of
such board) or other similar governing body of the controlling general partner of the partnership;
(3) with respect to a limited liability company, the Person or Persons who are the managing member,
members or managers or any controlling committee or managing member, members or managers thereof;
and (4) with respect to any other Person, the board or committee or other body of such Person
serving a similar function.



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



     “Business Day” means any day other than a Legal Holiday.



     “Capitalized Lease Obligation” means, as to any Person, the discounted rental stream payable
by such Person that is required to be classified and accounted for as a capital lease obligation
under GAAP and, for purposes of this definition, the amount of such obligation at any date shall be
the capitalized amount of such obligation at such date, determined in accordance with GAAP. The
final maturity of any such obligation shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be terminated by the
lessee without penalty.



     “Capital Stock” means:




     (1) with respect to any Person that is a corporation, any and all shares, rights,
interests, participations or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of common stock and preferred stock of such
Person, and




     (2) with respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.



2









 





     “Clearstream” means Clearstream Banking, S.A.



     “Company” means [The Bon-Ton Stores, Inc.] a Pennsylvania corporation, and any and all
successors thereto.



     “Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.



     “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.



     “Default” means any event that is or with the passage of time or the giving of notice or both
would be an Event of Default.



     “Definitive Note” means a certificated Note, other than a Global Note, registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form
of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have
the “Schedule of Exchanges of Interests in the Global Note” attached thereto.



     “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.



     “Disqualified Capital Stock” means any Capital Stock that by its terms (or by the terms of any
security into which it is, by its terms, convertible or for which it is, by its terms, exchangeable
at the option of the holder thereof), or upon the happening of any specified event, is required to
be redeemed or is redeemable (at the option of the holder thereof) at any time prior to the earlier
of the repayment of all Notes or the stated maturity of the Notes or is exchangeable at the option
of the holder thereof for Indebtedness at any time prior to the earlier of the repayment of all
Notes or the stated maturity of the Notes.



     “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).



     “Equity Offering” means any public or private sale of Qualified Capital Stock.



     “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.



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



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



     “Global Note Legend” means the legend set forth in Section 2.06(f) hereof, which is required
to be placed on all Global Notes issued under this Indenture.



3









 





     “Global Notes” means a permanent global note in registered form deposited with the Trustee, as
a custodian for The Depositary Trust Company or any other designated depositary, substantially in
the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01
or 2.06(d) hereof.



     “Government Securities” means marketable direct obligations issued by, or unconditionally
guaranteed by, the United States government or issued by any agency or instrumentality thereof and
backed by the full faith and credit of the United States, in each case maturing within 12 months
from the date of acquisition thereof by the Company.



     “Hedging Obligations” means all obligations of the Company arising under or in connection with
any rate or basis swap, forward contract, commodity swap or option, equity or equity index swap or
option, bond, note or bill option, interest rate option, foreign currency exchange transaction,
cross currency rate swap, currency option, cap, collar or floor transaction, swap option, synthetic
trust product, synthetic lease or any similar transaction or agreement.



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



     “Incur” means, with respect to any Indebtedness of any Person or any Lien, to create, issue,
incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in
respect of such Indebtedness or Lien or the recording, as required pursuant to GAAP or otherwise,
of any such Indebtedness on the balance sheet of such Person (and “Incurrence,” “Incurred,”
“Incurrable” and “Incurring” shall have meanings correlative to the foregoing).



     “Indebtedness” means with respect to any Person, without duplication, whether contingent or
otherwise,




     (1) any obligations for money borrowed,




     (2) any obligation evidenced by bonds, debentures, notes, or other similar instruments,




     (3) Letter of Credit Obligations and obligations in respect of other similar
instruments,




     (4) any obligations to pay the deferred purchase price of property or services,
including Capitalized Lease Obligations,




     (5) the maximum fixed redemption or repurchase price of Disqualified Capital Stock,




     (6) Indebtedness of other Persons of the types described in clauses (1) through (5)
above, secured by a Lien on the assets of such Person valued, in such cases where the
recourse thereof is limited to such assets, at the lesser of the principal amount of such
Indebtedness or the fair market value of the subject assets,



4









 






     (7) Indebtedness of other Persons of the types described in clauses (1) through (5)
above, guaranteed by such Person, and




     (8) the net obligations of such Person under Hedging Obligations,




     provided that the amount of any Indebtedness at any date shall be calculated as the
outstanding balance of all unconditional obligations and the maximum liability supported by
any contingent obligations at such date.



     Notwithstanding the foregoing, “Indebtedness” shall not be construed to include trade
payables, credit on open account, accrued liabilities, provisional credit, daylight overdrafts or
similar items. For purposes of this definition, the “maximum fixed redemption or repurchase price”
of any Disqualified Capital Stock that does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital
Stock were repurchased on the date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value
of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in
good faith by the Board of the issuing Person. Unless otherwise specified in this Indenture, the
amount outstanding at any time of any Indebtedness issued with original issue discount is the full
amount of such Indebtedness less the remaining unamortized portion of the original issue discount
of such Indebtedness at such time as determined in conformity with GAAP.



     “Indenture” means this Indenture, as amended or supplemented from time to time, and shall
include the form and terms of particular series of Notes established from time to time as
contemplated by Section 2.01.



     “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.



     “Interest Payment Date” means the Stated Maturity of an installment of interest on a
particular series of Notes.



     “Interest Swap Obligations” means the net obligations of any Person under any interest rate
protection agreement, interest rate future, interest rate option, interest rate swap, interest rate
cap, collar or floor transaction or other interest rate Hedging Obligation.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are authorized by law, regulation or executive order to remain
closed. 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 on such
payment for the intervening period.



     “Letter of Credit Obligations” means Obligations of the Company arising under or in connection
with letters of credit.



     “Lien” means, with respect to any assets, any mortgage, lien, pledge, charge, security
interest or other similar encumbrance (including, without limitation, any conditional sale or other



5









 




title retention agreement or lease in the nature thereof, any option or other agreement to
sell, and any filing of or agreement to give, any security interest).




     “Notes” has the meaning assigned to it in the recitals to this Indenture. The initially issued
Notes of any series of Notes and any Additional Notes of such series shall be treated as a single
class for all purposes under this Indenture, and unless the context otherwise requires, all
references to Notes shall include the initially issued Notes of such series and any Additional
Notes of such series.



     “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities, whether absolute or contingent, payable under the
documentation governing any Indebtedness.



     “Officer” means, (i) with respect to any Person that is a corporation, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, the Assistant
Secretary or any Vice-President of such Person and (ii) with respect to any other Person, the
individuals selected by the Board or corresponding governing or managing body of such Person to
perform functions similar to those of the officers listed in clause (i).



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the Chairman of the Board; the Chief Executive Officer; the
President; the Chief Operating Officer or a Vice President of the Company and the other of whom
must be the Chief Financial Officer; the Treasurer; the Secretary or an Assistant Treasurer or
Assistant Secretary of the Company, that meets the requirements of Section 12.05 hereof.



     “Opinion of Counsel” means a written opinion from legal counsel that meets the requirements of
Section 12.05 hereof. The counsel may be an employee of or counsel to the Company or any Subsidiary
of the Company.



     “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).



     “Person” means any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization, or government agency or
political subdivision thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).



     “Plan of Liquidation” means, with respect to any Person, a plan (including by operation of
law) that provides for, contemplates or the effectuation of which is preceded or accomplished by
(whether or not substantially contemporaneously):




     (1) the sale, lease or conveyance of all or substantially all of the assets of such
Person otherwise than as an entirety or substantially as an entirety, and



6









 






     (2) the distribution of all or substantially all of the proceeds of such sale, lease,
conveyance, or other disposition and all or substantially all of the remaining assets of
such Person to holders of Capital Stock of such Person.



     “Property” means any right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.



     “Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.



     “Responsible Officer” means any officer within the corporate trust administration of the
Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.



     “Subsidiary,” with respect to any Person, means:




     (1) any corporation or comparably organized entity, a majority of whose voting stock
(defined as any class of capital stock having voting power under ordinary circumstances to
elect a majority of the Board of such Person) is owned, directly or indirectly, by such
Person, and




     (2) any other Person (other than a corporation) in which such Person, directly or
indirectly, has at least a majority ownership interest entitled to vote in the election of
directors, managers or trustees thereof or of which such Person is the managing general
partner.



     “TIA” means the Trust Indenture Act of 1939, as amended.



     “Trustee” means [                                        ] until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
Company’s calculations of the number of years obtained by dividing:




     (1) the then outstanding aggregate principal amount of such Indebtedness into,



7









 






     (2) the total of the products obtained by multiplying:




     (A) the amount of each then remaining installment, sinking fund, serial
maturity or other required payment of principal, including payment at final
maturity, in respect thereof, by




     (B) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment.


Section 1.02 Other Definitions.




	 	 	 	 	 
	Term	 	Defined in Section
	“Authentication Order”
	 	 	2.02	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Legal Defeasance”
	 	 	8.02	 
	“Paying Agent”
	 	 	2.03	 
	“Registrar”
	 	 	2.03	 





Section 1.03 Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.



     The following TIA terms used in this Indenture have the following meanings:



     “indenture securities” means the Notes;



     “indenture security Holder” means a Holder of a Note;



     “indenture to be qualified” means this Indenture;



     “indenture trustee” or “institutional trustee” means the Trustee; and



     “obligor” on the Notes means the Company and any successor obligor upon the Notes.



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


Section 1.04 Rules of Construction.




     Unless the context otherwise requires:




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




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;



8









 






     (3) “or” is not exclusive;




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




     (5) “will” shall be interpreted to express a command;




     (6) provisions apply to successive events and transactions;




     (7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement or successor sections or rules adopted by the SEC from time
to time; and




     (8) references to any contract, instrument or agreement shall be deemed to include any
amendments, modifications or supplements thereto or restatements thereof not prohibited
hereby, through the date of reference thereto.



ARTICLE 2

THE NOTES



Section 2.01 Amount Unlimited; Issuable in Series.




     The aggregate principal amount of Notes that may be authenticated and delivered under this
Indenture is unlimited.



     The Notes may be issued in one or more series. There shall be established in or pursuant to a
Board Resolution and, subject to Section 2.02, set forth, or determined in the manner provided, in
an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Notes of any series:



     (a) the title of the Notes of the series, including CUSIP number(s) (which shall distinguish
the Notes of the series from Notes of any other series);



     (b) any limit upon the aggregate principal amount of the Notes of the series that may be
authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes of the series pursuant
to Section 2.06, 2.07, 2.10, 3.07 or 9.05);



     (c) the Person to whom any interest on a Note of the series shall be payable, if other than
the Person in whose name that Note (or one or more predecessor Notes) is registered at the close of
business on the record date for such interest;



     (d) the date or dates on which the principal of any Notes of the series is payable or the
method of determination thereof;



     (e) the rate or rates (which may be fixed or variable) at which any Notes of the series shall
bear interest, if any, the date or dates from which any such interest shall accrue, the interest



9









 




payment dates on which any such interest shall be payable and the record date for any such interest
payable on any interest payment date;




     (f) any terms applicable to original issue discount, if any (as that term is defined in the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), including the rate or
rates at which such original issue discount, if any, shall accrue;



     (g) the place or places where the principal of and any premium and interest on any Notes of
the series shall be payable;



     (h) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Notes of the series may be redeemed, in whole or in part, at the option
of the Company and, if other than by a Board Resolution, the manner in which any election by the
Company to redeem the Notes shall be evidenced;



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



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



     (k) if the amount of principal of or any premium or interest on any Notes of the series may be
determined with reference to a financial or economic measure or pursuant to a formula, the manner
in which such amounts shall be determined;



     (l) if other than the currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any Notes of the series
shall be payable and the manner of determining the equivalent thereof in the currency of the United
States of America for any purpose;



     (m) if the principal of or any premium or interest on any Notes of the series is to be
payable, at the election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Notes are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or interest on such Notes as
to which such election is made shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so payable (or the manner in which
such amount shall be determined);



     (n) if other than the entire principal amount thereof, the portion of the principal amount of
any Notes of the series which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02;



     (o) if the principal amount payable at the Stated Maturity of any Notes of the series will not
be determinable as of any one or more dates prior to the Stated Maturity, the amount that shall be
deemed to be the principal amount of such Notes as of any such date for any purpose



10









 




thereunder or hereunder, including the principal amount thereof that shall be due and payable upon any maturity
other than the Stated Maturity or that shall be deemed to be outstanding as of any date prior to
the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);




     (p) if other than by a Board Resolution, the manner in which any election by the Company to
defease any Notes of the series pursuant to Section 8.02 or Section 8.03 shall be evidenced; or,
that the Notes of the series, in whole or any specified part, shall not be defeasible pursuant to
Section 8.02 or Section 8.03 or both such Sections;



     (q) if applicable, that any Notes of the series shall be issuable in whole or in part in the
form of one or more Global Notes and, in such case, the respective Depositaries for such Global
Notes, the form of any Global Note Legend or Legends that shall be borne by any such Global Note in
addition to or in lieu of that set forth in Section 2.06(f) and any circumstances in addition to or
in lieu of those set forth in Section 2.06 in which any such Global Note may be exchanged in whole
or in part for Notes registered, and any transfer of such Global Note in whole or in part may be
registered, in the name or names of Persons other than the Depositary for such Global Note or a
nominee thereof;



     (r) if applicable, any provisions relating to the seniority or subordination of all or any
portion of the Indebtedness evidenced by the Notes of the series to other Indebtedness of the
Company, including, as applicable, all indebtedness evidenced by the Notes;



     (s) the provisions, if any, relating to any security provided for the Notes of the series;



     (t) the provisions, if any, relating to any conversion or exchange right of the Notes of the
series;



     (u) any addition to, deletion from or change in the Events of Default that apply to any Notes
of the series and any addition to, deletion from or change in the right of the Trustee or the
requisite Holders of such Notes to declare the principal amount thereof due and payable pursuant to
Section 6.02;



     (v) any addition to, deletion from or change in the covenants set forth in Articles 4 or 5
which apply to Notes of the series;



     (w) any addition to, deletion from or change in the definitions set forth in Article 1 which
apply to Notes of the series; and



     (x) any other terms of the Notes of the series (which terms may modify or delete any provision
of this Indenture, insofar as it applies to such series of Notes; provided, that no such term may
modify or delete any provision hereof if imposed by the TIA, and provided further that any
modification or deletion of the rights, duties and immunities of the Trustee hereunder shall have
been consented to in writing by the Trustee).



     All Notes of any one series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to the Board Resolution referred to above and
(subject to Section 2.02) set forth, or determined in the manner provided, in the Officers’



11









 




Certificate referred to above or in any such indenture supplemental hereto. All Notes of any one
series need not be issued at one time and, unless otherwise provided in or pursuant to the Board
Resolution referred to above and (subject to Section 2.02) set forth, or determined in the manner
provided, in the Officers’ Certificate referred to above or in any such indenture supplemental
hereto with respect to a series of Notes, Additional Notes may be issued, at the option of the
Company, without the consent of any Holder, at any time and from time to time.




     If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series. If all of the Notes of any series
established by action taken pursuant to a Board Resolution are not to be issued at one time, it
shall not be necessary to deliver a record of such action at the time of issuance of each Note of
such series, but an appropriate record of such action shall be delivered at or before the time of
issuance of the first Note of such series.


Section 2.02 Form and Dating; Execution and Authentication.




     (a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A hereto, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have 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, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution thereof. If the form of Notes of any
series is established by action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Authentication Order contemplated
by Section 2.02(d) for the authentication and delivery of such Notes. If all of the Notes of any
series established by action taken pursuant to a Board Resolution are not to be issued at one time,
it shall not be necessary to deliver a record of such action at the time of issuance of each Note
of such series, but an appropriate record of such action shall be delivered at or before the time
of issuance of the first Note of such series.



     The Notes may have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note will be dated the date of its authentication. Except as otherwise established in
accordance with Section 2.01(j), the Notes shall be in denominations of $1,000 and integral
multiples thereof.



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.



12









 





     (b) Global Notes. Subject to Section 2.02(a), Global Notes will be substantially in the form
of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Subject to Section 2.02(a), Definitive Notes will
be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and
without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global
Note will represent such of the outstanding Notes as will be specified therein and each shall
provide that it represents the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee
or the Custodian, at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.



     (c) Execution. At least one Officer must sign the Notes for the Company by manual or facsimile
signature.



     If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note will nevertheless be valid.



     A Note will not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Note has been authenticated under this Indenture.



     (d) Authentication. The Trustee will, upon receipt of a written order of the Company signed by
two Officers (an “Authentication Order”), authenticate Notes for original issuance in an aggregate
principal amount specified in the written order of the Company pursuant to this Section 2.02. Such
Authentication Order shall specify the amount of Notes to be authenticated and the date on which
the original issue of Notes is to be authenticated. The aggregate principal amount of Notes,
including any Additional Notes, of a series outstanding at any time may not exceed the aggregate
principal amount of Notes of such series authorized for issuance by the Company, pursuant to one or
more Authentication Orders, except as provided in Section 2.07 hereof.



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the
Company.


Section 2.03 Registrar and Paying Agent.




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



13









 




Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.




     The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.



     The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes.


Section 2.04 Paying Agent to Hold Money in Trust.




     The Company will require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium or interest or Additional Interest, if any, on
the Notes, and will notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay all money held by
it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary of the Company) will have no further liability for the money. If the Company or a
Subsidiary of the Company acts as Paying Agent, it will segregate and hold in a separate trust fund
for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for the
Notes.


Section 2.05 Holder Lists.




     The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders of each series of Notes and shall
otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish
to the Trustee at least seven Business Days 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 the Holders of each series of Notes and the
Company shall otherwise comply with TIA § 312(a).


Section 2.06 Transfer and Exchange.




     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes of a series will
be exchanged by the Company for Definitive Notes of such series if:




     (1) the Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is



14









 






not appointed by the Company within 120 days after the date of such notice from the Depositary;




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) of such series should be exchanged for Definitive Notes of such series and
delivers a written notice to such effect to the Trustee; or




     (3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes of such series.



     Upon the occurrence of either of the events in (1) or (2) above, Definitive Notes of such
series shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof. Other than as provided in this Section 2.06(a), every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note; provided, that beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b) or (c) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Transfers of
beneficial interests in the Global Notes also will require compliance with either subparagraph (1)
or (2) below, as applicable, as well as one or more of the other following subparagraphs, as
applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in this Section
2.06(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:




     (A) both:




     (i) a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note of such
series in an amount equal to the beneficial interest to be transferred or exchanged;
and




     (ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with such
increase; or



15









 






     (B) both:




     (i) a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note of such series in an amount equal to the
beneficial interest to be transferred or exchanged; and




     (ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note of such series
shall be registered to effect the transfer or exchange referred to in Section
2.06(b)(2)(B)(i) above.


Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(g) hereof.




     (c) Transfer or Exchange of Beneficial Interests in Global Notes for Definitive Notes. If any
holder of a beneficial interest in an Global Note of a series proposes to exchange such beneficial
interest for a Definitive Note of such series or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note of such series, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note of such series to be reduced accordingly pursuant to
Section 2.06(g) hereof, and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note of such series in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered.



     (d) Transfer and Exchange of Definitive Notes for Beneficial Interests in Global Notes. A
Holder of a Definitive Note of a series may exchange such Note for a beneficial interest in a
Global Note of such series or transfer such Definitive Notes to a Person who takes delivery thereof
in the form of a beneficial interest in a Global Note of such series at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee will cancel the applicable Definitive Note
and increase or cause to be increased the aggregate principal amount of one of the Global Notes of
such series pursuant to Section 2.06(g) hereof.



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes of such series duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. A Holder of Definitive Notes of a series may transfer such




16











 




Notes to a Person who takes delivery thereof in the form of a Definitive Note of such series.
Upon receipt of a request to register such a transfer, the Registrar shall register the Definitive
Notes of such series pursuant to the instructions from the Holder thereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person designated in the instructions
a Definitive Note of such series in the appropriate principal amount.




     (f) Global Note Legend. Each Global Note issued under this Indenture, unless specifically
stated otherwise in the applicable provisions of this Indenture, will bear a legend in
substantially the following form:



     “THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE)
OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



     UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”



     (g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note of a series have been exchanged for Definitive Notes of such series or
a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each
such Global Note will be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global
Note of a series is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note of such series or
for



17









 




Definitive Notes of such series, the principal amount of Notes represented by such Global Note
will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or
by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note of such series, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.




     (h) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.




     (2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.07 and 9.05 hereof or other provisions relating to any offer to purchase Notes required to
be made by the Company contained in any Board Resolution, supplemental indenture hereto or
an Officers’ Certificate establishing or amending a series of Notes).




     (3) The Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.




     (4) All Global Notes and Definitive Notes of a series issued upon any registration of
transfer or exchange of Global Notes or Definitive Notes of such series will be the valid
obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Global Notes or Definitive Notes of such series surrendered
upon such registration of transfer or exchange.




     (5) Neither the Registrar nor the Company will be required:




     (A) to issue, to register the transfer of or to exchange any Notes of a series
during a period beginning at the opening of business 15 days before the day of any
selection of Notes of such series for redemption under Section 3.03 hereof and
ending at the close of business on the day of selection;




     (B) to register the transfer of or to exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or




     (C) to register the transfer of or to exchange a Note of a series between a
record date and the next succeeding interest payment date of such series.



18









 






     (6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.




     (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.




     (8) All certifications and certificates required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.


Section 2.07 Replacement Notes.




     If any mutilated Note is surrendered to the Trustee, or each of the Company and the Trustee
receives evidence to its respective satisfaction of the destruction, loss or theft of any Note, the
Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Note of the same series if the Trustee’s requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company
may charge a Holder for the Company’s expenses in replacing a Note.



     Every replacement Note of a series is an additional obligation of the Company and will be
entitled to all of the benefits of this Indenture equally and proportionately with all other Notes
of such series duly issued hereunder.


Section 2.08 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof or in any
provision of the form of Note that so expressly states, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.



     If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.



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



     If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of
any thereof) holds, on a redemption date or maturity date, money sufficient to pay



19









 




Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and
will cease to accrue interest.



Section 2.09 Treasury Notes.




     In determining whether the Holders of the required principal amount of Notes of a series have
concurred in any direction, waiver or consent, Notes owned by the Company, or by any Affiliate of
the Company, will be considered as though not outstanding, except that for the purposes of
determining whether the Trustee will be protected in relying on any such direction, waiver or
consent, only Notes of such series that a Responsible Officer of the Trustee actually knows are so
owned will be so disregarded.


Section 2.10 Temporary Notes.




     Until certificated Notes are ready for delivery, the Company may prepare and the Trustee, upon
receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be
substantially in the form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without
unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in
exchange for temporary Notes.



     Holders of temporary Notes will be entitled to all of the benefits of this Indenture.


Section 2.11 Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will dispose of such
canceled Notes (subject to the record retention requirement of the Exchange Act) in its customary
manner. The Company may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.


Section 2.12 Defaulted Interest.




     If the Company defaults in a payment of interest on a series of Notes, it will pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special record date, in each
case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on each Note of such
series and the date of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date may be less than 10
days prior to the related payment date for such defaulted interest. At least 15 days before the
special record date, the Company (or, upon the written request of the Company, the Trustee in the
name and at the expense of the Company) will mail or cause to be mailed to Holders of
such series of Notes a notice that states the special record date, the related payment date
and the amount of such interest to be paid.



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Section 2.13 CUSIP Numbers.




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



ARTICLE 3

REDEMPTION AND PREPAYMENT



Section 3.01 Optional Redemption.




     Notes of any series that are redeemable before their maturity shall be redeemable in
accordance with their terms set forth in any Board Resolution, Officers’ Certificate or
supplemental indenture that establishes or amends the terms of the Notes of any series and in
accordance with this Article.


Section 3.02 Notices to Trustee.




     If the Company elects to redeem Notes of any series pursuant to the optional redemption
provisions of such Note, it must furnish to the Trustee, at least 40 days but not more than 60 days
before a redemption date, an Officers’ Certificate setting forth:



          (1) the clause of this Indenture pursuant to which the redemption shall occur;




          (2) the series of Notes to be redeemed;




          (3) the redemption date;




          (4) the principal amount of Notes to be redeemed;




          (5) the redemption price; and




          (6) the applicable CUSIP numbers.



Section 3.03 Selection of Notes to Be Redeemed or Purchased.




     If less than all of the Notes of any series are to be redeemed or purchased pursuant to this
Indenture at any time, the Trustee will select the Notes of such series to be redeemed or purchased
among the holders of Notes of such series as follows:




     (1) if such Notes are listed, in compliance with the requirements of the principal
national securities exchange on which such Notes are listed, or




     (2) if such Notes are not so listed, on a pro rata basis, by lot or in accordance with
any other method the Trustee considers fair and appropriate.



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     In the event of partial redemption or purchase by lot, the particular Notes of any series to
be redeemed or purchased will be selected, unless otherwise provided herein, not less than 35 nor
more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding
Notes of such series not previously called for redemption or purchase.



     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes of a series and portions of such Notes selected
will be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Notes of a
series of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes of such
series held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased.
Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes of a
series called for redemption or purchase also apply to portions of Notes of a series called for
redemption or purchase.


Section 3.04 Notice of Redemption.




     Unless otherwise indicated for a particular series by Board Resolution establishing the terms
of any series of Notes as set forth, or determined in the manner provided, in an Officers’
Certificate, or established in a supplemental indenture hereto, at least 30 days but not more than
60 days before a redemption date, the Company will mail or cause to be mailed, by first class mail,
a notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes pursuant to Article 8 hereof or a
satisfaction and discharge of this Indenture pursuant to Article 11 hereof.



     The notice will identify the Notes of the series to be redeemed and will state:




     (1) the redemption date;




     (2) the redemption price;




     (3) if any Note of such series is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon surrender of
such Note, a new Note or Notes of such series in principal amount equal to the unredeemed
portion will be issued upon cancellation of the original Note;




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




     (5) that Notes of such series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;




     (6) that, unless the Company defaults in making such redemption payment, interest and
Additional Interest, if any, on Notes of such series called for redemption ceases to accrue
on and after the redemption date, subject to the satisfaction of any condition to such
redemption;



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     (7) the paragraph of the Notes of such series and/or Section of this Indenture pursuant
to which the Notes of such series called for redemption are being redeemed; and




     (8) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes of such series.



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45
days prior to the redemption date (unless a shorter period is acceptable to the Trustee), an
Officers’ Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.


Section 3.05 Effect of Notice of Redemption.




     Once notice of redemption is mailed in accordance with Section 3.04 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price,
subject to the satisfaction of any conditions to such redemption. A notice of redemption may be
conditional in that the Company may, notwithstanding the giving of the notice of redemption,
condition the redemption of the Notes specified in the notice of redemption upon the completion of
other transactions, such as refinancings or acquisitions (whether of the Company or by the
Company).


Section 3.06 Deposit of Redemption or Purchase Price.




     On or before 10:00 a.m. New York City time on the redemption or purchase date, the Company
will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued interest and Additional Interest, if any, on all Notes to be redeemed
or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest and Additional Interest,
if any, on, all Notes to be redeemed or purchased.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, subject to the satisfaction of any conditions to such redemption,
interest will cease to accrue on the Notes or the portions of Notes called for redemption or
purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record date. If any Note
called for redemption or purchase is not so paid upon surrender for redemption or purchase because
of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption or purchase date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid principal, in each case at
the rate provided in the Notes and in Section 4.01 hereof.


Section 3.07 Notes Redeemed or Purchased in Part.




     Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and,
upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the



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expense of the Company a new Note of the same series equal in principal amount to the unredeemed or
unpurchased portion of the Note surrendered.



Section 3.08 Mandatory Redemption.




     The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.



ARTICLE 4

COVENANTS



Section 4.01 Payment of Notes.




     The Company will pay or cause to be paid the principal of, premium, if any, and interest and
Additional Interest, if any, on, the Notes of a series on the dates and in the manner provided in
accordance with the terms of such Notes and this Indenture. Principal, premium, if any, and
interest and Additional Interest, if any, will be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on
the due date money deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.



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


Section 4.02 Maintenance of Office or Agency.




     The Company will maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company fails to maintain any such
required office or agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee (or at the office of its affiliate, if so designated by the Trustee).



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission will in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



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     The Company hereby designates the Corporate Trust Office of the Trustee, as one such office or
agency of the Company in accordance with Section 2.03 hereof.


Section 4.03 Reports.




     (a) Whether or not required by the rules and regulations of the SEC, so long as any series of
Notes are outstanding, the Company will furnish to the Trustee for mailing to the Holders of such
series of Notes:




     (1) all quarterly and annual financial information that would be required to be
contained in a filing or filings by the Company with the SEC on Forms 10-Q and 10-K if the
Company were required to file such forms, including a “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” and, with respect to the annual
information only, a report thereon by the Company’s certified independent accountants, and




     (2) all current reports that would be required to be filed by the Company with the SEC
on Form 8-K if the Company were required to file such reports, in each case within 15 days
of the applicable time periods specified in the SEC’s rules and regulations.


In addition, whether or not required by the rules and regulations of the SEC, the Company will file
a copy of all such information and reports with the SEC for public availability (unless the SEC
will not accept such a filing) and make such information available to securities analysts and
prospective investors upon request. The Company may deliver the consolidated reports or financial
information of the Company to comply with the foregoing requirements. The Company will at all times
comply with TIA § 314(a).




     If, at any time, the Company is no longer subject to the periodic reporting requirements of
the Exchange Act for any reason, the Company will nevertheless continue filing the reports
specified in the preceding paragraph with the SEC within the time periods specified above unless
the SEC will not accept such a filing. The Company will not take any action for the purpose of
causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not
accept the Company’s filings for any reason, the Company will post the reports referred to in the
preceding paragraph on its website within the time periods that would apply if the Company were
required to file those reports with the SEC.



     Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers’ Certificates).



     (b) For so long as any series of Notes remain outstanding, if at any time the Company is not
required to file with the SEC the reports required by paragraph (a) of this Section 4.03, the
Company will furnish to the Holders of such series of Notes and to securities analysts and
prospective investors, upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.



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Section 4.04 Compliance Certificate.




     (a) So long as any Notes are outstanding, the Company shall deliver to the Trustee, within 120
days after the end of each fiscal year for each outstanding series of Notes an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has
occurred, describing all such Defaults or Events of Default of which he or she may have knowledge
and what action or actions the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and is continuing by reason of which
payments on account of the principal of or interest, if any, on the Notes is prohibited or if such
event has occurred, a description of the event and what action or actions the Company is taking or
proposes to take with respect thereto. The first certificate to be delivered pursuant to this
Section 4.04(a) shall be for the first fiscal year ending on December 31 of the calendar year in
which Notes of such series are first issued under this Indenture.



     (b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action or actions the Company is
taking or proposes to take with respect thereto.


Section 4.05 Stay, Extension and Usury Laws.




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


Section 4.06 Legal Existence.




     Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such Subsidiary; and




     (2) the rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries;



26









 




provided, however, that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its Subsidiaries, if the
Company shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.




ARTICLE 5

SUCCESSORS



Section 5.01 Merger, Consolidation, or Sale of Assets.




     The Company may not, in a single transaction or a series of related transactions, consolidate
or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as
a whole, to any Person or adopt a Plan of Liquidation unless:



          (1) either





     (A) in the case of a consolidation or merger, the Company, or any successor
thereto, is the surviving or continuing corporation, or




     (B) the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition of the properties and assets of the
Company and its Subsidiaries, taken as a whole, or in the case of a Plan of
Liquidation, the Person to which assets of the Company and its Subsidiaries have
been transferred (i) shall be a corporation or other entity organized and validly
existing under the laws of the United States or any State thereof or the District of
Columbia; provided, that if the successor is an entity other than a corporation, the
Notes shall be co-issued or assumed on a co-issuer basis by a corporation organized
and validly existing under the laws of the United States or any State thereof or the
District of Columbia and (ii) shall expressly assume, by supplemental indenture (in
form and substance satisfactory to the Trustee), executed and delivered to the
Trustee, the due and punctual payment of the principal of, and premium, if any, and
interest and Additional Interest, if any, on all of the Notes and the performance of every covenant of the Notes and this
Indenture on the part of the Company to be performed or observed;




     (2) immediately before and immediately after giving effect to such transaction and the
assumption contemplated by clause (1)(B)(ii) above no Default and no Event of Default shall
have occurred or be continuing; and




     (3) the Company or such other Person shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance, other disposition or Plan of Liquidation and, if a
supplemental indenture is required in connection with such transaction, such supplemental
indenture, comply with the applicable provisions of this



27









 






Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.



     Notwithstanding the provisions in this Section 5.01 above:




     (1) any Subsidiary of the Company may consolidate with, or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all of its
assets to the Company or to another Subsidiary of the Company, and




     (2) the Company or any Subsidiary of the Company may consolidate with or merge with or
into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially
all of its assets to any Person if such transaction is solely for the purpose of effecting a
change in the state of incorporation or form of organization of the Company or such
Subsidiary.



     For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a
single transaction or series of transactions) of all or substantially all of the properties and
assets of one or more Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.


Section 5.02 Successor Person Substituted.




     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of the Company in a
transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the
successor Person formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed
to, and be substituted for (so that from and after the date of such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture
referring to the Company shall refer instead to the successor Person and not to the Company), and
may exercise every right and power of the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein; and thereafter the predecessor Company
shall be relieved from the obligation to pay the principal of and interest on the Notes and from
any further obligation under this Indenture.



ARTICLE 6

DEFAULTS AND REMEDIES



Section 6.01 Events of Default.




     Each of the following is an “Event of Default” with respect to Notes of any series:




     (1) the Company’s default for 30 days in the payment when due of interest (including
any Additional Interest) on the Notes of such series;





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     (2) the Company’s default in payment of the principal of or premium, if any, on the
Notes of such series when due and payable, at maturity, upon acceleration, redemption or
otherwise;



     (3) failure by the Company to comply with any of its other agreements in this Indenture
(other than an agreement that has been included in this Indenture solely for the benefit of
a series of Notes other than such series) or the Notes of such series for 60 days after
written notice to the Company by the Trustee or by Holders of not less than 25% in aggregate
principal amount of the Notes of such series then outstanding voting as a single class;




     (4) the Company pursuant to or within the meaning of 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




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




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




     (A) is for relief against the Company in an involuntary case;




     (B) appoints a custodian of the Company or for all or substantially all of its
property; or




     (C) orders the liquidation of the Company;



          and the order or decree remains unstayed and in effect for 60 consecutive days.


Section 6.02 Acceleration.




     If an Event of Default with respect to the Notes of any series (other than an Event of Default
with respect to clauses (6) and (7) of Section 6.01 hereof occurs and is continuing, then
and in every such case, the Trustee or the Holders of not less than 25% in aggregate principal
amount of the then outstanding Notes of such series may declare the principal amount, together with
any accrued and unpaid interest and premium and Additional Interest, if any, on all the Notes of
such series then outstanding to be due and payable, by a notice in writing to the Company (and to
the Trustee, if given by Holders) specifying the Event of Default and that it is a “notice of
acceleration” and upon delivery of such notice the principal amount, in either case, together with
any accrued and unpaid interest and premium and Additional Interest, if any, on all the Notes of
such series then outstanding will become immediately due and payable, notwithstanding anything
contained in this Indenture or the Notes to the contrary. Upon the



29









 




occurrence of any Event of Default specified in clause (6) or (7) of Section 6.01 hereof, the principal amount, together with
any accrued and unpaid interest and premium and Additional Interest, if any, will immediately and
automatically become due and payable, without the necessity of notice or any other action by any
Person. Holders of the Notes of such series may not enforce this Indenture or the Notes except as
provided in this Indenture.




     Notwithstanding any other provision of this Indenture, the sole remedy for an Event of Default
relating to the failure to comply with the reporting obligations described under Section 4.03, and
for any failure to comply with the requirements of Section 314(a) of the TIA, will for the 365 days
after the occurrence of such an Event of Default consist exclusively of the right to receive
Additional Interest on the principal amount of the Notes of such series at a rate equal to 0.25%
per annum. This Additional Interest will be payable in the same manner and subject to the same
terms as other interest payable under this Indenture. The Additional Interest will accrue on all
outstanding Notes of such series from and including the date on which an Event of Default relating
to a failure to comply with the reporting obligations described under Section 4.03 or Section
314(a) of the TIA first occurs to but not excluding the 365th day thereafter (or such earlier date
on which the Event of Default relating to the reporting obligations described under Section 4.03 or
Section 314(a) of the TIA shall have been cured or waived). On such 365th day (or earlier, if the
Event of Default relating to such reporting obligations is cured or waived prior to such 365th
day), such Additional Interest will cease to accrue and the Notes of such series will be subject to
the other remedies as provided under this Section 6.02 if the Event of Default is continuing. For
the avoidance of doubt, the provisions of this paragraph will not affect the rights of Holders of
Notes of such series in the event of the occurrence of any other Event of Default.



     The Holders of a majority in aggregate principal amount of the then outstanding Notes of such
series by written notice to the Trustee may, on behalf of all of the Holders of the Notes of such
series, rescind an acceleration and its consequences, if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of principal, interest
or premium or Additional Interest, if any, that has become due solely because of the acceleration)
have been cured or waived.


Section 6.03 Other Remedies.




     If an Event of Default with respect to the Notes of a series occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal, premium and Additional
Interest, if any, and interest on the Notes of such series or to enforce the performance of any
provision of the Notes of such series or this Indenture.



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



30









 




Section 6.04 Waiver of Past Defaults.




     The Holders of a majority in aggregate principal amount of the Notes of any series then
outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes of such
series waive any existing Default or Event of Default with respect to the Notes of such series and
its consequences under this Indenture except a continuing Default or Event of Default in the
payment of principal of, premium or Additional Interest, if any, or interest, on the Notes of such
series (including in connection with an offer to purchase) (provided, however, that the Holders of
a majority in aggregate principal amount of the then outstanding Notes of such series may rescind
an acceleration and its consequences, including any related payment default that resulted solely
from such acceleration). The waiver by the holders of any Indebtedness described in clause (4) of
Section 6.01 of the predicating default under such Indebtedness shall be deemed a waiver of such
Default or Event of Default arising under, and a rescission of any acceleration resulting from the
application of clause (4), from the effective date, during the effective period and to the extent
of, the waiver by the holders of such other Indebtedness. Upon any waiver granted or deemed granted
in accordance with the terms hereof, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured and waived for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


Section 6.05 Control by Majority.




     Holders of a majority in aggregate principal amount of the then outstanding Notes of any
series may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it with respect to the Notes
of such series. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that the Trustee determines may be unduly prejudicial to the rights of other
Holders of such series of Notes, or that may involve the Trustee in personal liability.


Section 6.06 Limitation on Suits.




     A Holder of any series of Notes may pursue a remedy with respect to this Indenture or the
Notes only if:




     (1) such Holder gives to the Trustee written notice that an Event of Default is
continuing;




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




     (3) such Holder or Holders offer and, if requested, provide to the Trustee security or
indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;




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



31









 






     (5) during such 60-day period, Holders of a majority in aggregate principal amount of
the then outstanding Notes of such series do not give the Trustee a direction inconsistent
with such request.



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


Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium and Additional Interest, if any, and interest on such Note,
on or after the respective due dates expressed in such Note (including in connection with an offer
to purchase), 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 such Holder.


Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium and Additional Interest, if any,
and interest remaining unpaid on, the Notes of all series as to which such Event of Default has
occurred and is continuing and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.


Section 6.09 Trustee May File Proofs of Claim.




     The Trustee for each series of Notes is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company, its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or



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consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.



Section 6.10 Priorities.




     If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:



     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expenses and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;



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



     Third: to the Company or to such party as a court of competent jurisdiction shall direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.


Section 6.11 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in aggregate principal amount of the then outstanding Notes of any series.


Section 6.12 Remedies Subject to Applicable Law.




     All rights, remedies and powers provided by this Article 6 may be exercised only to the extent
that the exercise thereof does not violate any applicable provision of law, and all the provisions
of this Indenture are intended to be subject to all applicable laws and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or not entitled to be
recorded, registered or filed under the provisions of any applicable law.



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ARTICLE 7

TRUSTEE



Section 7.01 Duties of Trustee.




     (a) If an Event of Default with respect to Notes of any series has occurred and is continuing,
the Trustee will, with respect to such Notes, 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 person
would exercise or use under the circumstances in the conduct of such person’s own affairs.



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




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




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of certificates or opinions specifically required by any
provision hereof to be furnished to it, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).



     (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 7.01;




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




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



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



     (e) No provision of this Indenture will require the Trustee to expend or risk its own funds or
incur any liability. The Trustee will be under no obligation to exercise any of its rights



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and powers under this Indenture at the request of any Holder, unless such Holder has offered
to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.




     (f) The Trustee will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.


Section 7.02 Rights of Trustee.




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



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



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



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



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



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



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



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



     (i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be



35









 




enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.




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


Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.


Section 7.04 Trustee’s Disclaimer.




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


Section 7.05 Notice of Defaults.




     If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee will mail to Holders of Notes of all applicable series a notice of the Default or Event
of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium or Additional Interest, if any, or interest on, any Note, the
Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders of the Notes of
such series.


Section 7.06 Reports by Trustee to Holders of the Notes.




     (a) Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also will comply with TIA § 313(b). The Trustee will
also transmit by mail all reports as required by TIA § 313(c).



36









 





     (b) A copy of each report at the time of its mailing to the Holders of Notes will be mailed by
the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The Company will promptly notify the Trustee
when the Notes of any series are listed on any stock exchange or delisted therefrom.


Section 7.07 Compensation and Indemnity.




     (a) The Company will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation will not be limited
by any law on compensation of a trustee of an express trust. The Company will reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses incurred or made by
it in addition to the compensation for its services. Such expenses will include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.



     (b) The Company will indemnify the Trustee against any and all losses, claims, damages,
liabilities or expenses incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company (including this Section 7.07) and defending itself against any
claim (whether asserted by the Company, any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be determined to have been caused by its negligence or bad
faith. The Trustee will notify the Company promptly of any claim for which the Trustee may seek
indemnity. Failure by the Trustee to so notify the Company will not relieve the Company of its
obligations hereunder. The Company will defend the claim and the Trustee will cooperate in the
defense. The Trustee may have separate counsel and the Company will pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made without its consent,
which consent will not be unreasonably withheld.



     (c) The obligations of the Company under this Section 7.07 will survive the satisfaction and
discharge of this Indenture.



     (d) To secure the Company’s payment obligations in this Section 7.07, the Trustee will have a
Lien prior to the Notes on all money or property held or collected by the Trustee, except that held
in trust to pay principal and interest on particular Notes or particular series of Notes. Such Lien
will survive the satisfaction and discharge of this Indenture.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(6) or (7) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.


Section 7.08 Replacement of Trustee.




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



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     (b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in aggregate principal amount of the
then outstanding Notes of any series may remove the Trustee as to such series of Notes by so
notifying the Trustee and the Company in writing. The Company may remove the Trustee if:




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




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




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




     (4) the Trustee becomes incapable of acting.



     (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then
outstanding Notes of any series may appoint a successor Trustee for such series of Notes to replace
the successor Trustee for such series of Notes appointed by the Company.



     (d) If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in
aggregate principal amount of the then outstanding Notes of any series may petition any court of
competent jurisdiction for the appointment of a successor Trustee for such series of Notes at the
expense of the Company.



     (e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     (f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to the
Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee, provided that all sums owing to the Trustee hereunder have been paid, and
subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue
for the benefit of the retiring Trustee.


Section 7.09 Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act will be the successor Trustee.




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Section 7.10 Eligibility; Disqualification.




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least [$100.0
million] as set forth in its most recent published annual report of condition.



     This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).


Section 7.11 Preferential Collection of Claims Against Company.




     The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE



Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may at any time, at the option of its Board evidenced by a resolution set forth in
an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes or any series of Notes upon compliance with the conditions set forth below in
this Article 8.


Section 8.02 Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company will, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes of such series on the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will
be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes
of such series which will thereafter be deemed to be “outstanding” only for the purposes of Section
8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and
to have satisfied all their other obligations under such Notes of such series and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same) with respect to such series, except for the following provisions which will
survive until otherwise terminated or discharged hereunder:




     (1) the rights of Holders of outstanding Notes of such series to receive payments in
respect of the principal of, or interest or premium and Additional Interest, if any, on,
such Notes when such payments are due from the trust referred to in Section 8.04 hereof;



39









 






     (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




     (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith; and




     (4) this Article 8.



     Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.


Section 8.03 Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company will, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from each of its obligations under the covenants contained in Sections 4.03,
4.04, and 4.05 hereof and clause (3) of Section 5.01 hereof with respect to the outstanding Notes
of the applicable series (and with any additional specified terms, provisions or conditions set
forth in any Board Resolution, Officers’ Certificate or supplemental indenture that establishes or
amends the terms of the Notes of any series) on and after the date the conditions set forth in
Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes of such
series will thereafter be deemed not “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders of Notes of such series (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all
other purposes hereunder (it being understood that such Notes will not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes of such series, the Company may omit to comply with and will have no liability in
respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere in this Indenture to any such covenant or by
reason of any reference in any such covenant to any other provision in this Indenture or in any
other document and such omission to comply will not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such
Notes will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(5) hereof will not constitute
Events of Default with respect to such series of Notes.


Section 8.04 Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or 8.03 hereof with respect to any outstanding series of Notes:




     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of Notes of such series, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants, to pay the principal of,
premium, if any, and interest and Additional Interest, if any, on the
outstanding Notes of such series on the stated maturity or on the applicable redemption



40









 






date, as the case may be, and the Company must specify whether the Notes of such series are
being defeased to maturity or to a particular redemption date;




     (2) in the case of an election under Section 8.02 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that:




     (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or




     (B) since the date of this Indenture, there has been a change in the applicable
federal income tax law,


in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;





     (3) in the case of an election under Section 8.03 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not occurred;




     (4) if applicable, the Company shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee to the effect that the funds deposited pursuant
to Section 8.04 hereof will not be subject to the rights of the holders of any “Senior
Indebtedness” as defined in any indenture supplemental hereto applicable to the Notes of
such series;




     (5) no Default or Event of Default with respect to such series of Notes shall have
occurred and be continuing either:




     (A) on the date of such deposit (other than a Default or Event of Default
resulting from transactions occurring contemporaneously with the borrowing of funds,
or the borrowing of funds, to be applied to such deposit); or




     (B) insofar as the occurrence of Events of Default resulting from bankruptcy or
insolvency events are concerned, at any time in the period ending on the 91st day
after the date of deposit (in which case such defeasance shall have been effective
on the date of deposit until the time of such occurrence and, upon such occurrence,
shall immediately cease to be effective);



41









 






     (6) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or instrument (other than
this Indenture) to which the Company is a party or by which the Company is bound;




     (7) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes of
such series over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and




     (8) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.


Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.




     Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes of any series will be held in trust and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment, either directly or through
any Paying Agent as the Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Additional Interest, if any, and interest,
but such money need not be segregated from other funds except to the extent required by law.



     The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes of such
series.



     Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.


Section 8.06 Repayment to Company.




     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium or Additional Interest, if any, or interest on,
any Note and remaining unclaimed for two years after such principal, premium or Additional
Interest, if any, or interest has become due and payable shall be paid to the Company on its
request or (if then held by the Company) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to look only to the Company for payment



42









 




thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that, after a date
specified therein, which will not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid to the Company.



Section 8.07 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this Indenture and the
applicable Notes will be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium or Additional Interest, if
any, or interest on, any such Note following the reinstatement of its obligations, the Company will
be subrogated to the rights of the Holders of such Notes to receive such payment from the money
held by the Trustee or Paying Agent.



ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.01 Without Consent of Holders of Notes.




     Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes of one or more series without the consent of any Holder of
Notes:




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




     (2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;




     (3) to provide for the assumption of the Company’s obligations to the Holders of the
Notes of any series by a successor to the Company pursuant to Article 5 or Article 10
hereof;




     (4) to make any change that would provide any additional rights or benefits to the
Holders of all or any series of Notes (and if such additional rights or benefits are for the
benefit of less than all series of Notes, stating that such additional rights or benefits
are expressly being included solely for the benefit of such series) or that does not
adversely affect the legal rights hereunder of any Holder;



43









 






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




     (6) to conform the text of this Indenture or the Notes of any series to any provision
of the “Description of Notes” section of any prospectus or prospectus supplement or other
offering document or similarly named section thereof, relating to the initial offering of
such series of Notes, to the extent that such provision in that “Description of Notes”
section of any prospectus or prospectus supplement or other offering document or similarly
named section thereof was intended to be a verbatim recitation of a provision of this
Indenture or the Notes of such series;




     (7) to provide for the issuance of Additional Notes of any series of Notes (including
any additional or different restrictions on transfer or exchange of such Additional Notes,
including without limitation those that would be appropriate if the Additional Notes were
issued in a transaction exempt from registration under the Securities Act) in accordance
with the limitations set forth in this Indenture prior to such issuance of Additional Notes;




     (8) to secure the Notes of any series;




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




     (10) to establish the form or terms of Notes of any series as permitted by this
Indenture;




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




     (12) to add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Notes, provided that any such addition, change or elimination (i)
shall neither (A) apply to any Note of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Note with respect to such provision or (ii) shall become
effective only when there is no Note described in clause (i) outstanding.



     Upon the request of the Company accompanied by a resolution of its Board authorizing the
execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee will join with the Company in the execution
of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and
to make any further appropriate agreements and stipulations that may be therein contained, but the
Trustee will not be obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.



44









 




Section 9.02 With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture (including, without limitation, any provisions relating to any mandatory
offer by the Company to purchase or repurchase any Notes and the defined terms used therein) and
the Notes, with respect to a particular series of Notes affected by such amendment or supplement,
with the consent of the Holders of at least a majority in aggregate principal amount then
outstanding of such series of the Notes (including, without limitation, Additional Notes, if any)
voting as a separate class (including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, such series of Notes), and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium or Additional Interest, if any, or interest on,
a series of Notes, except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture or the Notes may be waived with respect to a
particular series of Notes with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes of such series (including, without limitation, Additional
Notes, if any) voting as a separate class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, such series of Notes).
Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of
this Section 9.02.



     Upon the request of the Company accompanied by a resolution of its Board authorizing the
execution of any such amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the appropriate Holders as aforesaid, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will
join with the Company in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental Indenture.



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



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company will mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.



     However, without the consent of each Holder affected, an amendment, supplement or waiver under
this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):




     (1) reduce the principal amount of Notes of any series whose Holders must consent to an
amendment, supplement or waiver,



45









 






     (2) reduce the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of any series of Notes; provided, however, that
any provision providing for the mandatory offer by the Company to purchase or repurchase
Notes (and any related provision) shall not be deemed a provision with respect to the
redemption of the Notes,




     (3) reduce the rate of or change the time for payment of interest on any Note,
including default interest,




     (4) waive a Default or Event of Default in the payment of principal of or premium, if
any, or interest or Additional Interest, if any, on any series of Notes (except a rescission
of acceleration of the Notes of such series by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes of such series and a waiver of the
payment default that resulted from such acceleration),




     (5) make any Note payable in currency other than that stated in the Notes,




     (6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of or premium,
if any, or interest or Additional Interest, if any, on the Notes,




     (7) waive a redemption payment with respect to any Note; provided, however, that any
purchase or repurchase of Notes by the Company pursuant to a mandatory offer to purchase or
repurchase by the Company shall not be deemed a redemption of a Note, or




     (8) make any change in the foregoing amendment and waiver provisions.



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


Section 9.03 Compliance with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Notes of one or more series will be set
forth in an amended or supplemental indenture that complies with the TIA as then in effect.



46









 




Section 9.04 Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date upon which the requisite consents for the applicable amendment, supplement or
waiver have been obtained. An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.


Section 9.05 Notation on or Exchange of Notes.




     The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company, in exchange for all Notes of a series, may issue and
the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes of such series
that reflect the amendment, supplement or waiver.



     Failure to make the appropriate notation or issue a new Note of an affected series will not
affect the validity and effect of such amendment, supplement or waiver.


Section 9.06 Trustee to Sign Amendments, etc.




     The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of the Company approves it. In executing any amended or supplemental indenture, the
Trustee will be provided with and (subject to Section 7.01 hereof) will be fully protected in
relying upon, in addition to the documents required by Section 12.04 hereof, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.


Section 9.07 Reference in Notes to Supplemental Indentures.




     Notes of any series authenticated and delivered after the execution of any supplemental
indenture pursuant this Article 9 and affected thereby may, if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
outstanding Notes of such series.



ARTICLE 10

[RESERVED]






47









 








ARTICLE 11

SATISFACTION AND DISCHARGE



Section 11.01 Satisfaction and Discharge.




     This Indenture will be discharged and will cease to be of further effect as to all Notes of a
particular series issued hereunder, when:




     (1) either:




     (A) all Notes of such series that have been authenticated, except lost, stolen
or destroyed Notes that have been replaced or paid and Notes of such series for
whose payment money has been deposited in trust and thereafter repaid to the
Company, have been delivered to the trustee for cancellation; or




     (B) all Notes of such series that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a notice of
redemption (and all conditions to such redemption having been satisfied or waived)
or otherwise or will become due and payable within one year and the Company has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in
trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and non-callable
Government Securities, in amounts as will be sufficient, without consideration of
any reinvestment of interest, to pay and discharge the entire Indebtedness on the
Notes of such series not delivered to the Trustee for cancellation for principal,
premium and Additional Interest, if any, and accrued interest to the date of
maturity or redemption;




     (2) if the Company has deposited with the Trustee trust funds pursuant to subclause (B)
of clause (1) of this Section 11.01, no Default or Event of Default with respect to such
series of Notes has occurred and is continuing on the date of the deposit (other than a
Default or Event of Default with respect to such series of Notes resulting from transactions
occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be
applied to such deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company is a party or by which
the Company is bound;




     (3) the Company has paid or caused to be paid all sums payable by it under this
Indenture as they relate to such series of Notes; and




     (4) if the Company has deposited with the Trustee trust funds pursuant to subclause (B)
of clause (1) of this Section 11.01, the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward the payment of the
Notes of such series in accordance with the terms thereof or on the redemption date, as the
case may be.


In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.







48









 








     Upon compliance with the foregoing, the Trustee shall execute proper instrument(s)
acknowledging the satisfaction and discharge of all the Company’s obligations under the Notes of
such series and this Indenture.



     Notwithstanding the satisfaction and discharge of this Indenture, if trust funds have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section 11.01, the
provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section
11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms,
survive the satisfaction and discharge of this Indenture.


Section 11.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all trust funds deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes of a particular series and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium and Additional
Interest, if any) and interest for whose payment such trust funds have has been deposited with the
Trustee; but such trust funds need not be segregated from other funds or securities except to the
extent required by law.



     If the Trustee or Paying Agent is unable to apply any trust funds in accordance with this
Section 11.02 by reason of any legal proceeding or by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Notes of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the
Company has made any payment of principal of, premium or Additional Interest, if any, or interest
on, any Notes of such series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes of such series to receive such payment from
the trust funds held by the Trustee or Paying Agent.



ARTICLE 12

MISCELLANEOUS



Section 12.01 Trust Indenture Act Controls.




     If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), the imposed duties will control.


Section 12.02 Notices.




     Any notice or communication by the Company or the Trustee to the others is duly given if in
writing and delivered in Person or by first class mail (registered or certified, return receipt
requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the
others’ address:



49









 




If to the Company:



[The Bon-Ton Stores, Inc.]

2801 East Market Street

York, Pennsylvania 17402

Facsimile No.: (717) 751-3008

Attention: General Counsel



With a copy to:



Duane Morris LLP

30 South 17th Street

Philadelphia, PA 19103

Facsimile No.: (215) 405-2906

Attention: Darrick M. Mix, Esq.



If to the Trustee:



[                                                            

                                                            ]

Facsimile No.: [                                        ]

Attention: [                                        ]




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



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.



     The Trustee agrees to accept and act upon facsimile transmission of written instructions
and/or directions pursuant to this Indenture given by the Company, provided, however that: (i) the
Company, subsequent to such facsimile transmission of written instructions and/or directions, shall
provide the originally executed instructions and/or directions to the Trustee in a timely manner
and (ii) such originally executed instructions and/or directions shall be signed by an authorized
Officer of the Company.



     Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.




50












 





     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



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


Section 12.03 Communication by Holders of Notes with Other Holders of Notes.




     Holders of any series of Notes may communicate pursuant to TIA § 312(b) with other Holders of
such series or any other series with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).


Section 12.04 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, except the initial authentication and delivery of a series of Notes, the Company shall
furnish to the Trustee:




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Such counsel may rely on representations, warranties and certificates of other Persons as to
matters of fact, and may qualify the Opinion of Counsel with customary assumptions and
exceptions.


Section 12.05 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply
with the provisions of TIA § 314(e) and must include:




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




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




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



51









 






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


Section 12.06 Rules by Trustee and Agents.




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


Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.




     No past, present or future director, officer, employee, agent, manager, partner, member,
incorporator or stockholder of the Company, in such capacity, will have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes.


Section 12.08 Governing Law.




     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


Section 12.09 No Adverse Interpretation of Other Agreements.




     This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.


Section 12.10 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors.


Section 12.11 Severability.




     In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.


Section 12.12 Counterpart Originals.




     This Indenture may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together will constitute one and the same Indenture.



52









 




Section 12.13 Table of Contents, Headings, etc.




     The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and will in no way modify or restrict any of the terms or provisions hereof.


Section 12.14 Waiver of Jury Trial.




     EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.


Section 12.15 Force Majeure.




     In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.



[Signatures on following page.]










53









 








SIGNATURES



Dated as of [_________, ___]




	 	 	 	 	 
	 	[THE BON-TON STORES, INC.]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Indenture]



 









 





THE TRUSTEE



Dated as of [_________, ___]




	 	 	 	 	 
	 	[                                                            ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Indenture]



 









 





EXHIBIT A




[Face of Note ]




 





CUSIP/CINS                     




[__]% [                    ] Notes due [___]




			
	No.                     
	 	$                     






[THE BON-TON STORES, INC.]




promises to pay to [                         ] or registered assigns,




the principal sum of                                          DOLLARS on [                    ].




Interest Payment Dates: [                    ] and [                         ]




Record Dates: [                    ] and [                         ]




Dated as of [                    , ___]




	 	 	 	 	 
	 	[THE BON-TON STORES, INC.]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



This is one of the Notes referred to

in the within-mentioned Indenture:




[                                                            ]

as Trustee




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



A-1









 






	 	 	 	 	 



[Back of Note]




[___]% [                    ] Notes due [                    ]



[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]





     Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.



     (1) INTEREST. [The Bon-Ton Stores, Inc.] a Pennsylvania corporation (the “Company”), promises
to pay interest on the principal amount of this Note at [                    ]% per annum from
                         , 20 ___until maturity. The Company will pay interest and Additional Interest, if any,
semi-annually in arrears on [                    ] and [                    ] of each year,
or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest
Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be                     , 20_. The Company will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from
time to time on demand at the rate then in effect to the extent lawful; it will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any, (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.



     (2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest)
and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of
business on the [                    ] and [                    ] next preceding the
Interest Payment Date, even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium and Additional Interest, if
any, and interest at the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company, payment of interest and
Additional Interest, if any, may be made by check mailed to the Holders at their addresses set
forth in the register of Holders; provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium and Additional Interest,
if any, on, all Global Notes and all other Notes the Holders of which will have provided wire
transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts.



     (3) PAYING AGENT AND REGISTRAR. Initially, [                    ], the Trustee under the
Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.



A-2









 





     (4) INDENTURE. The Company issued the Notes under an Indenture dated as of [ ___, ___] (the
“Indenture”) between the Company and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject
to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such
terms. To the extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured
obligations of the Company. The Indenture does not limit the aggregate principal amount of the
Notes that may be issued thereunder.



     (5) OPTIONAL REDEMPTION.


[Insert, if applicable:]





     (a) Except as set forth in the subparagraphs of this Paragraph 5, the Company will not
have the option to redeem the Notes prior to [                    ]. On or after [                    ], the
Company will have the option to redeem the Notes, in whole or in part, upon not less than 15
nor more than 60 days’ notice, at the redemption prices (expressed as percentages of
principal amount thereof) set forth below plus accrued and unpaid interest and Additional
Interest, if any, on the Notes redeemed, to the applicable redemption date, if redeemed
during the twelve-month period beginning on [                                        ] of the years indicated
below:



	 	 	 
	Year	 	Percentage
	[                      ]

	 	[                    ]%
	[                      ]

	 	[                    ]%








	 	 	 
	Year	 	Percentage
	[                      ]

	 	[                    ]%
	[                      ] and thereafter


	 	100.000%





Unless the Company defaults in the payment of the redemption price, interest and the Additional
Interest, if any, will cease to accrue on the Notes or portions thereof called for redemption on
the applicable redemption date.



[Insert, if applicable:]





     (b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time
prior to [                    ], the Company may redeem up to 35% of the initially outstanding
aggregate principal amount of Notes issued under this Indenture at a redemption price in
cash of [                    ] % of the principal amount thereof, plus accrued and unpaid interest
and Additional Interest, if any, to the redemption date, with the net cash proceeds of one
or more Equity Offerings of the Company; provided that at least 65% of the initially
outstanding aggregate principal amount of Notes (excluding Notes held by the Company and its
Subsidiaries) remains outstanding immediately after the occurrence of such redemption,
notice of any such redemption shall be given by the Company to the Holders and the Trustee
within 15 days after the consummation of any



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such Equity Offering, and such redemption shall occur within 60 days of the date of
such notice.


[Insert, if applicable:]





     (c) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time
prior to [                    ], the Company may redeem all or a part of the Notes upon not less than
15 nor more than 60 days’ prior notice mailed by first-class mail to each Holder’s
registered address, at a redemption price equal to 100% of the principal amount of notes
redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional
Interest, if any, to the redemption date, subject to the rights of holders of Notes on the
relevant record dates occurring prior to the redemption date to receive interest due on the
relevant interest payment date.




     “Applicable Premium” means with respect to any Note on any redemption date, as
determined by the Company, the greater of:




(1) 1.0% of the principal amount of the Note; or




(2) the excess of:




          (a) the present value at such redemption date of (i) the redemption
price of the Note at [                                        ] (such redemption price being set forth
in the table appearing under Section 5 of this Note) plus (ii) all required
interest payments due on the Note through [                                        ] (excluding accrued
but unpaid interest to the redemption date), computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50 basis points;
over




          (b) the principal amount of the Note.



     (6) MANDATORY REDEMPTION. The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.



     (7) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 15 days but not more
than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its
registered address, except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of the Notes or a
satisfaction or discharge of the Indenture as to the Notes. Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held
by a Holder are to be redeemed. A notice of redemption may be conditional in that the Company may,
notwithstanding the giving of the notice of redemption, condition the redemption of the Notes
specified in the notice of redemption upon the completion of other transactions, such as
refinancings or acquisitions (whether of the Company or by the Company).



     (8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The



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Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during
the period between a record date and the corresponding Interest Payment Date.




     (9) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all
purposes.



     (10) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture and the
Notes may be amended or supplemented with respect to a series of Notes affected by such amendment
or supplement with the consent of the Holders of at least a majority in aggregate principal amount
then outstanding of such series of Notes (including Additional Notes, if any) voting as a separate
class, and, subject to certain exceptions, any existing Default or Event or Default or compliance
with any provision of the Indenture or the Notes may be waived with respect to a series of Notes
with the consent of the Holders of a majority in aggregate principal amount of the then outstanding
Notes of such series (including Additional Notes of such series, if any) voting as a separate
class. Without the consent of any Holder of Notes, the Indenture or the Notes of one or more series
may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company’s obligations to Holders of all or any series of Notes in case of a
merger or consolidation, to make any change that would provide any additional rights or benefits to
the Holders of any series of Notes (and if such additional rights or benefits are for the benefit
of less than all series of Notes, stating that such additional rights or benefits are expressly
being included solely for the benefit of such series) or that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the TIA, to conform the text of the
Indenture or the Notes to any provision of the “Description of Notes” section of any prospectus or
prospectus supplement or other offering document or similarly named section, relating to the
initial offering of the Notes, to the extent that such provision in that “Description of Notes” was
intended to be a verbatim recitation of a provision of the Indenture, or the Notes, to provide for
the issuance of Additional Notes of such series in accordance with the limitations set forth in the
Indenture prior to such issuance of Additional Notes, to secure the Notes of any series, to add to
the covenants of the Company for the benefit of the Holders of all or any series of Notes (and if
such covenants are to be for the benefit of less than all series of Notes, stating that such
covenants are expressly being included solely for the benefit of such series) or to surrender any
right or power conferred upon the Company to establish the form and terms of any series as
permitted by the Indenture, or to add to, change or eliminate any of the provisions of the
Indenture in respect of one or more series of Notes subject to certain limitations.



     (11) DEFAULTS AND REMEDIES. Events of Default include with respect to Notes of any series: (i)
default for 30 days in the payment when due of interest (including any Additional Interest) on the
Notes of such series; (ii) default in payment of the principal of or premium, if



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any, on the Notes of such series when due and payable, at maturity, upon acceleration,
redemption or otherwise; (iii) failure by the Company to comply with any of its other agreements in
the Indenture (other than an agreement that has been included in the Indenture solely for the
benefit of a series of Notes other than such series) or the Notes of such series for 60 days after
written notice to the Company by the Trustee or the Holders of at least 25% in principal amount of
the Notes of such series then outstanding voting as a single class; and (iv) certain events of
bankruptcy or insolvency with respect to the Company. If any Event of Default with respect to the
Notes of any series occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes of such series may declare all the Notes
of such series to be due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes of
such series will become due and payable immediately without further action or notice. Holders may
not enforce the Indenture or the Notes of such series except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding
Notes of such series may direct the Trustee in its exercise of any trust or power with respect to
the Notes of such series. The Trustee shall be under no obligation to exercise any of the rights or
powers at the request or direction of any of the Holders unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or direction. The Trustee
may withhold from Holders of the Notes of such series notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of principal or interest or
premium or Additional Interest, if any) if it determines that withholding notice is in their
interest. Notwithstanding any other provision of the Indenture, the sole remedy for an Event of
Default relating to the failure to comply with the SEC reporting obligations described under the
Indenture, and for any failure to comply with the requirements of section 314(a) of the TIA, will
for the 365 days after the occurrence of such an Event of Default consist exclusively of the right
to receive Additional Interest on the principal amount of the Notes of such series at a rate equal
to 0.25% per annum. The Holders of a majority in aggregate principal amount of the then outstanding
Notes of such series by notice to the Trustee may, on behalf of the Holders of all of the Notes of
such series, (i) rescind an acceleration and its consequences, if the rescission would not conflict
with any judgment or decree and if all existing Events of Default (except nonpayment of principal,
interest or premium or Additional Interest, if any, that has become due solely because of the
acceleration) have been cured or waived or (ii) waive any existing Default or Event of Default with
respect to the Notes of such series and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of interest or premium or Additional Interest, if any,
on, or the principal of, the Notes of such series. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the Company is required,
upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.



[Insert, if applicable:]




     ( ) SUBORDINATION. Payment of principal, interest and premium and Additional Interest, if
any, on the Notes is subordinated to the prior payment of Senior Indebtedness on the terms provided
in the Indenture.



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     (12) TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.



     (13) NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator or stockholder of
the Company, as such, will not have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.



     (14) AUTHENTICATION. This Note will not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.



     (15) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



     (16) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the
Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders.
No representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption, and reliance may be placed only on the other identification
numbers placed thereon.



     (17) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE AND THIS NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:


[The Bon-Ton Stores, Inc.]

2801 East Market Street

York, Pennsylvania 17402

Attention: General Counsel






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ASSIGNMENT FORM



To assign this Note, fill in the form below:



(I) or (we) assign and transfer this Note to:




	 	 	 
	   
	(Insert assignee’s legal name)
	 
	 	 
	 
	 	 
	   
	(Insert assignee’s soc. sec. or tax I.D. no.)
	 
	 	 
	   
	 
	 	 
	   
	 
	 	 
	   
	 
	 	 
	   
	(Print or type assignee’s name, address and zip code)





                                                            
 and irrevocably appoint      
                                                        to transfer this
Note on the books of the Company. The agent may substitute another to act for him.



Dated as of [                    , ___]




	 	 	 	 	 

	 

	 	Your Signature


	 	 
	 
	 	 	 	 
	 
	 	(Sign exactly as your name appears on the face of this Note)	 	





Signature Guarantee*:                                                             






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).




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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *




     The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount of	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	this Global Note	 	 
	 	 	 	 	Amount of decrease	 	Amount of increase in	 	following such	 	Signature of
	 	 	 	 	in Principal Amount	 	Principal Amount of	 	decrease (or	 	authorized officer of
	Date of Exchange	 	of this Global Note	 	this Global Note	 	increase)	 	Trustee or Custodian







 




			
	*	 	This schedule should be included only if the Note is issued in global form.






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