EXHIBIT
4.7


 


 


FORM OF
SENIOR INDENTURE


 




 





CANO
PETROLEUM, INC.


 


as
Issuer


 


and


 






 


as
Trustee


 






 


Indenture

Dated as of
                ,      


 






 


Debt Securities




 





 

















 


CANO
PETROLEUM, INC.


 


Reconciliation
and tie between Trust Indenture Act of 1939 and Indenture, dated as of
                ,       


 


	
  Section of 

  Trust

  Indenture

  Act of 1939

  	
   

  	
   

  	
   

  	
  Section(s) of

  Indenture

  	
   

  
	
  § 310

  	
   

  	
  (a)(1)

  	
   

  	
  7.10

  	
   

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  7.10

  	
   

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  Not
  Applicable

  	
   

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  Not
  Applicable

  	
   

  
	
   

  	
   

  	
  (a)(5)

  	
   

  	
  7.10

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.08,
  7.10

  	
   

  
	
  § 311

  	
   

  	
  (a)

  	
   

  	
  7.11

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.11

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Not
  Applicable

  	
   

  
	
  § 312

  	
   

  	
  (a)

  	
   

  	
  2.07

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  10.03

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  10.03

  	
   

  
	
  § 313

  	
   

  	
  (a)

  	
   

  	
  7.06

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.06

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.06

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.06

  	
   

  
	
  § 314

  	
   

  	
  (a)

  	
   

  	
  4.03,
  4.04

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Not
  Applicable

  	
   

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  10.04

  	
   

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  10.04

  	
   

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  Not
  Applicable

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Not
  Applicable

  	
   

  
	
   

  	
   

  	
  (e)

  	
   

  	
  10.05

  	
   

  
	
  § 315

  	
   

  	
  (a)

  	
   

  	
  7.01(b)

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.05

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.01(a)

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.01(c)

  	
   

  
	
   

  	
   

  	
  (d)(1)

  	
   

  	
  7.01(c)(1)

  	
   

  
	
   

  	
   

  	
  (d)(2)

  	
   

  	
  7.01(c)(2)

  	
   

  
	
   

  	
   

  	
  (d)(3)

  	
   

  	
  7.01(c)(3)

  	
   

  
	
   

  	
   

  	
  (e)

  	
   

  	
  6.11

  	
   

  
	
  § 316

  	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  	
   

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  	
   

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  Not
  Applicable

  	
   

  
	
   

  	
   

  	
  (a)(last
  sentence)

  	
   

  	
  2.11

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.07

  	
   

  
	
  § 317

  	
   

  	
  (a)(1)

  	
   

  	
  6.08

  	
   

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  6.09

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  2.06

  	
   

  
	
  § 318

  	
   

  	
  (a)

  	
   

  	
  10.01

  	
   

  



 


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


 


i

















 


TABLE
OF CONTENTS


 


	
  ARTICLE
  I

  	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
  SECTION 1.01

  	
  Definitions.

  	
   

  
	
   

  	
  SECTION 1.02

  	
  Other
  Definitions.

  	
   

  
	
   

  	
  SECTION 1.03

  	
  Incorporation
  by Reference of Trust Indenture Act.

  	
   

  
	
   

  	
  SECTION 1.04

  	
  Rules of
  Construction.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.01

  	
  Amount
  Unlimited; Issuable in Series.

  	
   

  
	
   

  	
  SECTION 2.02

  	
  Denominations.

  	
   

  
	
   

  	
  SECTION 2.03

  	
  Forms
  Generally.

  	
   

  
	
   

  	
  SECTION 2.04

  	
  Execution,
  Authentication, Delivery and Dating.

  	
   

  
	
   

  	
  SECTION 2.05

  	
  Registrar
  and Paying Agent.

  	
   

  
	
   

  	
  SECTION 2.06

  	
  Paying
  Agent to Hold Money in Trust.

  	
   

  
	
   

  	
  SECTION 2.07

  	
  Holder
  Lists.

  	
   

  
	
   

  	
  SECTION 2.08

  	
  Transfer
  and Exchange.

  	
   

  
	
   

  	
  SECTION 2.09

  	
  Replacement
  Securities.

  	
   

  
	
   

  	
  SECTION 2.10

  	
  Outstanding
  Securities.

  	
   

  
	
   

  	
  SECTION 2.11

  	
  Original
  Issue Discount, Foreign-Currency Denominated and Treasury Securities.

  	
   

  
	
   

  	
  SECTION 2.12

  	
  Temporary
  Securities.

  	
   

  
	
   

  	
  SECTION 2.13

  	
  Cancellation.

  	
   

  
	
   

  	
  SECTION 2.14

  	
  Payments;
  Defaulted Interest.

  	
   

  
	
   

  	
  SECTION 2.15

  	
  Persons
  Deemed Owners.

  	
   

  
	
   

  	
  SECTION 2.16

  	
  Computation
  of Interest.

  	
   

  
	
   

  	
  SECTION 2.17

  	
  Global
  Securities; Book-Entry Provisions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.01

  	
  Applicability
  of Article.

  	
   

  
	
   

  	
  SECTION 3.02

  	
  Notice
  to the Trustee.

  	
   

  
	
   

  	
  SECTION 3.03

  	
  Selection
  of Securities To Be Redeemed.

  	
   

  
	
   

  	
  SECTION 3.04

  	
  Notice
  of Redemption.

  	
   

  
	
   

  	
  SECTION 3.05

  	
  Effect
  of Notice of Redemption.

  	
   

  
	
   

  	
  SECTION 3.06

  	
  Deposit
  of Redemption Price.

  	
   

  
	
   

  	
  SECTION 3.07

  	
  Securities
  Redeemed or Purchased in Part.

  	
   

  
	
   

  	
  SECTION 3.08

  	
  Purchase
  of Securities.

  	
   

  
	
   

  	
  SECTION 3.09

  	
  Mandatory
  and Optional Sinking Funds.

  	
   

  
	
   

  	
  SECTION 3.10

  	
  Satisfaction
  of Sinking Fund Payments with Securities.

  	
   

  
	
   

  	
  SECTION 3.11

  	
  Redemption
  of Securities for Sinking Fund.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.01

  	
  Payment
  of Securities.

  	
   

  
	
   

  	
  SECTION 4.02

  	
  Maintenance
  of Office or Agency.

  	
   

  
	
   

  	
  SECTION 4.03

  	
  SEC
  Reports; Financial Statements.

  	
   

  
	
   

  	
  SECTION 4.04

  	
  Compliance
  Certificate.

  	
   

  
	
   

  	
  SECTION 4.05

  	
  Corporate
  Existence.

  	
   

  
	
   

  	
  SECTION 4.06

  	
  Waiver
  of Stay, Extension or Usury Laws.

  	
   

  
	
   

  	
  SECTION 4.07

  	
  Additional
  Amounts.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.01

  	
  Limitations
  on Mergers and Consolidations.

  	
   

  



 


ii

















 


	
   

  	
  SECTION 5.02

  	
  Successor
  Person Substituted.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
  DEFAULTS
  AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 6.01

  	
  Events
  of Default.

  	
   

  
	
   

  	
  SECTION 6.02

  	
  Acceleration.

  	
   

  
	
   

  	
  SECTION 6.03

  	
  Other
  Remedies.

  	
   

  
	
   

  	
  SECTION 6.04

  	
  Waiver
  of Defaults.

  	
   

  
	
   

  	
  SECTION 6.05

  	
  Control
  by Majority.

  	
   

  
	
   

  	
  SECTION 6.06

  	
  Limitations
  on Suits.

  	
   

  
	
   

  	
  SECTION 6.07

  	
  Rights
  of Holders to Receive Payment.

  	
   

  
	
   

  	
  SECTION 6.08

  	
  Collection
  Suit by Trustee.

  	
   

  
	
   

  	
  SECTION 6.09

  	
  Trustee
  May File Proofs of Claim.

  	
   

  
	
   

  	
  SECTION 6.10

  	
  Priorities.

  	
   

  
	
   

  	
  SECTION 6.11

  	
  Undertaking
  for Costs.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.01

  	
  Duties
  of Trustee.

  	
   

  
	
   

  	
  SECTION 7.02

  	
  Rights
  of Trustee.

  	
   

  
	
   

  	
  SECTION 7.03

  	
  May Hold
  Securities.

  	
   

  
	
   

  	
  SECTION 7.04

  	
  Trustee’s
  Disclaimer.

  	
   

  
	
   

  	
  SECTION 7.05

  	
  Notice
  of Defaults.

  	
   

  
	
   

  	
  SECTION 7.06

  	
  Reports
  by Trustee to Holders.

  	
   

  
	
   

  	
  SECTION 7.07

  	
  Compensation
  and Indemnity.

  	
   

  
	
   

  	
  SECTION 7.08

  	
  Replacement
  of Trustee.

  	
   

  
	
   

  	
  SECTION 7.09

  	
  Successor
  Trustee by Merger, etc.

  	
   

  
	
   

  	
  SECTION 7.10

  	
  Eligibility;
  Disqualification.

  	
   

  
	
   

  	
  SECTION 7.11

  	
  Preferential
  Collection of Claims Against the Company.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  DISCHARGE
  OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.01

  	
  Termination
  of the Company’s Obligations.

  	
   

  
	
   

  	
  SECTION 8.02

  	
  Application
  of Trust Money.

  	
   

  
	
   

  	
  SECTION 8.03

  	
  Repayment
  to Company.

  	
   

  
	
   

  	
  SECTION 8.04

  	
  Reinstatement.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL
  INDENTURES AND AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.01

  	
  Without
  Consent of Holders.

  	
   

  
	
   

  	
  SECTION 9.02

  	
  With
  Consent of Holders.

  	
   

  
	
   

  	
  SECTION 9.03

  	
  Compliance
  with Trust Indenture Act.

  	
   

  
	
   

  	
  SECTION 9.04

  	
  Revocation
  and Effect of Consents.

  	
   

  
	
   

  	
  SECTION 9.05

  	
  Notation
  on or Exchange of Securities.

  	
   

  
	
   

  	
  SECTION 9.06

  	
  Trustee
  to Sign Amendments, etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.01

  	
  Trust
  Indenture Act Controls.

  	
   

  
	
   

  	
  SECTION 10.02

  	
  Notices.

  	
   

  
	
   

  	
  SECTION 10.03

  	
  Communication
  by Holders with Other Holders.

  	
   

  
	
   

  	
  SECTION 10.04

  	
  Certificate
  and Opinion as to Conditions Precedent.

  	
   

  
	
   

  	
  SECTION 10.05

  	
  Statements
  Required in Certificate or Opinion.

  	
   

  
	
   

  	
  SECTION 10.06

  	
  Rules by
  Trustee and Agents.

  	
   

  
	
   

  	
  SECTION 10.07

  	
  Legal
  Holidays.

  	
   

  
	
   

  	
  SECTION 10.08

  	
  No
  Recourse Against Others.

  	
   

  



 


iii

















 


	
   

  	
  SECTION 10.09

  	
  Governing
  Law.

  	
   

  
	
   

  	
  SECTION 10.10

  	
  No
  Adverse Interpretation of Other Agreements.

  	
   

  
	
   

  	
  SECTION 10.11

  	
  Successors.

  	
   

  
	
   

  	
  SECTION 10.12

  	
  Severability.

  	
   

  
	
   

  	
  SECTION 10.13

  	
  Counterpart
  Originals.

  	
   

  
	
   

  	
  SECTION 10.14

  	
  Table
  of Contents, Headings, etc.

  	
   

  



 


iv

















 


INDENTURE dated as of                              ,
               between
Cano Petroleum, Inc., a Delaware corporation (the “Company”), and                           ,
as trustee (the “Trustee”).


 


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


 


ARTICLE
I


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


SECTION 1.01    Definitions.


 


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


 


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


 


“Agent” means any Registrar or Paying
Agent.


 


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


 


“Board of Directors” means the Board of
Directors of the Company or any committee thereof duly authorized, with respect
to any particular matter, to act by or on behalf of the Board of Directors of
the Company.


 


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


 


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


 


“Capitalized Lease Obligation” of any
Person means any obligation of such Person to pay rent or other amounts under a
lease of property, real or personal, that is required to be capitalized for
financial reporting purposes in accordance with GAAP; and the amount of such
obligation shall be the capitalized amount thereof determined in accordance
with GAAP.


 


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


 


“Company Order” and “Company Request”
mean, respectively, a written order or request signed in the name of the
Company by two Officers of the Company, and delivered to the Trustee.


 


“Corporate Trust Office of the Trustee”
means the office of the Trustee located at
                            ,
Attention:             ,
and as may be located at such other address as the Trustee may give notice to
the Company.


 


1

















 


“Debt” of any Person means, without
duplication: (i) all indebtedness or obligations of such Person for
borrowed money (whether or not the recourse of the lender is to the whole of
the assets of such Person or only to a portion thereof); (ii) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments; (iii) all obligations of such Person in respect of
letters of credit or other similar instruments (or reimbursement obligations
with respect thereto), other than standby letters of credit, bid or performance
bonds and other obligations issued by or for the account of such Person in the
ordinary course of business; (iv) all obligations of such Person to pay
the deferred and unpaid purchase price of property or services, except trade
payables and accrued expenses incurred in the ordinary course of business; (v) all
Capitalized Lease Obligations of such Person; (vi) all Debt of others
secured by a lien on any asset of such Person, whether or not such Debt is
assumed by such Person (provided that if the obligations so secured have not
been assumed in full by such Person or are not otherwise such Person’s legal
liability in full, then such obligations shall be deemed to be in an amount
equal to the greater of (a) the lesser of (1) the full amount of such
obligations and (2) the fair market value of such assets, as determined in
good faith by the Board of Directors of such Person, which determination shall
be evidenced by a Board Resolution, and (b) the amount of obligations as
have been assumed by such Person or which are otherwise such Person’s legal
liability); and (vii) all Debt of others (other than endorsements in the
ordinary course of business) guaranteed by such Person to the extent of such
guarantee.


 


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


 


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


 


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


 


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


 


“GAAP” means generally accepted
accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the United
States, as in effect from time to time.


 


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


 


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


 


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


 


“Indenture” means this Indenture as
amended or supplemented from time to time pursuant to the provisions hereof,
and includes the terms of a particular series of Securities established as
contemplated by Section 2.01.


 


“interest” means, with respect to an
Original Issue Discount Security that by its terms bears interest only after
Maturity, interest payable after Maturity and when used with respect to any
Security, means all amounts of interest accruing on such Security, including
any default interest.


 


2

















 


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


 


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


 


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


 


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


 


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


 


“Officers’ Certificate” means a
certificate signed by two Officers of a Person.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3

















 


“SEC” means the Securities and Exchange
Commission.


 


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


 


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


 


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


 


“Subsidiary” of a Person means an
Affiliate controlled by such Person directly, or indirectly through one or more
intermediaries.


 


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


 


“Trustee” means the Person named as such
above until a successor replaces it in accordance with the applicable
provisions of this Indenture, and thereafter “Trustee” means each Person who is
then a Trustee hereunder, and if at any time there is more than one such
Person, “Trustee” as used with respect to the Securities of any series means
the Trustee with respect to Securities of that series.


 


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


 


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


 


4

















 


SECTION 1.02    Other Definitions.


 


	
  Term

  	
   

  	
  Defined in 

  Section

  	
   

  
	
  “Agent
  Members”

  	
   

  	
  2.17

  	
   

  
	
  “Bankruptcy
  Custodian”

  	
   

  	
  6.01

  	
   

  
	
  “Conversion
  Event”

  	
   

  	
  6.01

  	
   

  
	
  “covenant
  defeasance”

  	
   

  	
  8.01

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Exchange
  Rate”

  	
   

  	
  2.11

  	
   

  
	
  “Judgment
  Currency”

  	
   

  	
  6.10

  	
   

  
	
  “legal
  defeasance”

  	
   

  	
  8.01

  	
   

  
	
  “mandatory
  sinking fund payment”

  	
   

  	
  3.09

  	
   

  
	
  “optional
  sinking fund payment”

  	
   

  	
  3.09

  	
   

  
	
  “Paying
  Agent”

  	
   

  	
  2.05

  	
   

  
	
  “Registrar”

  	
   

  	
  2.05

  	
   

  
	
  “Required
  Currency”

  	
   

  	
  6.10

  	
   

  
	
  “Successor”

  	
   

  	
  5.01

  	
   

  



 


SECTION 1.03    Incorporation by Reference
of Trust Indenture Act.


 


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


 


“Commission” means the SEC.


 


“indenture securities” means the
Securities.


 


“indenture security holder” means a
Holder.


 


“indenture to be qualified” means this
Indenture.


 


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


 


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


 


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


 


SECTION 1.04    Rules of Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(3) “or”
is not exclusive;


 


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


 


5

















 


(5) provisions
apply to successive events and transactions; and


 


(6) all
references in this instrument to Articles and Sections are references to the
corresponding Articles and Sections in and of this instrument.


 


ARTICLE
II


THE
SECURITIES


 


SECTION 2.01    Amount Unlimited; Issuable
in Series.


 


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


 


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


 


(1)  the title of the Securities of
the series (which shall distinguish the Securities of the series from the
Securities of all other series);


 


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


 


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


 


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


 


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


 


(6)  the rate or rates, or the method
of determination thereof, at which the Securities of the series shall bear
interest, if any, whether and under what circumstances Additional Amounts with
respect to such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest shall
be payable and the record date for the interest payable on any Securities on
any Interest Payment Date, or if other than provided herein, the Person to whom
any interest on Securities of the series shall be payable;


 


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


 


6

















 


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


 


(9)  the obligation, if any, of the
Company to redeem, purchase or repay Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid in whole or in
part pursuant to such obligation;


 


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


 


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


 


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


 


(13)  if the amount of payments of
principal of, premium (if any) and interest on and any Additional Amounts with
respect to the Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any other index
or formula, the manner in which such amounts shall be determined;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


SECTION 2.02    Denominations.


 


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


 


SECTION 2.03    Forms Generally.


 


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


 


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


 


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


 


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


 


 


	
   

  	
   

  	
   

  	
  ,
  as Trustee

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Signatory”.

  
					



 


SECTION 2.04    Execution, Authentication,
Delivery and Dating.


 


Two Officers of the Company shall sign
the Securities on behalf of the Company by manual or facsimile signature. If an
Officer of the Company whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall be valid
nevertheless.


 


A Security shall not be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of an authorized signatory of the
Trustee, which signature shall be conclusive evidence that the Security has
been authenticated under this Indenture. Notwithstanding the foregoing, if any
Security has been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company delivers such Security to the Trustee for
cancellation as provided in Section 2.13, together with a written
statement (which need not comply with Section 10.05 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such


 


8

















 


Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


 


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


 


If the form or terms of the Securities of
the series have been established in or pursuant to one or more Board
Resolutions as permitted by Section 2.01, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive (in
addition to the Company Order referred to above and the other documents
required by Section 10.04), and (subject to Section 7.01) shall be
fully protected in relying upon:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Each Security shall be dated the date of
its authentication.


 


9

















 


SECTION 2.05    Registrar and Paying
Agent.


 


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


 


The Company shall enter into an
appropriate agency agreement with any Registrar or Paying Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. The Company may change any
Paying Agent or Registrar without notice to any Holder. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any Subsidiary may act as Paying Agent or
Registrar.


 


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


 


SECTION 2.06    Paying Agent to Hold Money
in Trust.


 


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


 


SECTION 2.07    Holder Lists.


 


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


 


SECTION 2.08    Transfer and Exchange.


 


Except as set forth in Section 2.17
or as may be provided pursuant to Section 2.01:


 


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


 


To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar’s written request and submission of the Securities
or Global Securities. No service charge shall be made to a Holder for any
registration of transfer or exchange (except as otherwise expressly


 


10

















 


permitted herein), but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than such transfer tax or similar
governmental charge payable upon exchanges pursuant to Section 2.12, 3.07
or 9.05). The Trustee shall authenticate Securities in accordance with the
provisions of Section 2.04. Notwithstanding any other provisions of this
Indenture to the contrary, the Company shall not be required to register the
transfer or exchange of (a) any Security selected for redemption in whole
or in part pursuant to Article III, except the unredeemed portion of any
Security being redeemed in part, or (b) any Security during the period
beginning 15 Business Days prior to the mailing of notice of any offer to
repurchase Securities of the series required pursuant to the terms thereof or
of redemption of Securities of a series to be redeemed and ending at the close
of business on the day of mailing.


 


SECTION 2.09    Replacement Securities.


 


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


 


Every replacement Security is an
additional obligation of the Company.


 


SECTION 2.10    Outstanding Securities.


 


The Securities outstanding at any time
are all the Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, those defeased pursuant to
Sections 8.01(c), those reductions in the interest in a Global Security
effected by the Trustee hereunder and those described in this Section 2.10
as not outstanding.


 


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


 


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


 


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


 


SECTION 2.11    Original Issue Discount,
Foreign-Currency Denominated and Treasury Securities.


 


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


 


11

















 


SECTION 2.12    Temporary Securities.


 


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


 


SECTION 2.13    Cancellation.


 


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


 


SECTION 2.14    Payments; Defaulted
Interest.


 


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


 


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


 


SECTION 2.15    Persons Deemed Owners.


 


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


 


SECTION 2.16    Computation of Interest.


 


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


 


12

















 


SECTION 2.17    Global Securities;
Book-Entry Provisions.


 


If Securities of a series are issuable in
global form as a Global Security, as contemplated by Section 2.01, then,
notwithstanding clause (10) of Section 2.01 and the provisions of Section 2.02,
any such Global Security shall represent such of the outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, transfers or redemptions. Any endorsement of
a Global Security to reflect the amount, or any increase or decrease in the
amount, of outstanding Securities represented thereby shall be made by the
Trustee (i) in such manner and upon instructions given by such Person or
Persons as shall be specified in such Security or in a Company Order to be
delivered to the Trustee pursuant to Section 2.04 or (ii) otherwise
in accordance with written instructions or such other written form of
instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest
in such Global Security. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.12, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified in such Security or in the applicable Company
Order. With respect to the Securities of any series that are represented by a
Global Security, the Company authorizes the execution and delivery by the
Trustee of a letter of representations or other similar agreement or instrument
in the form customarily provided for by the Depositary appointed with respect
to such Global Security. Any Global Security may be deposited with the
Depositary or its nominee, or may remain in the custody of the Trustee or the
Security Custodian therefor pursuant to a FAST Balance Certificate Agreement or
similar agreement between the Trustee and the Depositary. If a Company Order
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 10.05 and need not be
accompanied by an Opinion of Counsel.


 


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


 


Notwithstanding Section 2.08, and
except as otherwise provided pursuant to Section 2.01: Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be
transferred in accordance with the rules and procedures of the Depositary.
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in a Global Security if, and only if, either (1) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Security and a successor Depositary is not appointed
by the Company within 90 days of such notice, (2) an Event of Default has
occurred with respect to such series and is continuing and the Registrar has
received a request from the Depositary to issue Securities in lieu of all or a
portion of the Global Security (in which case the Company shall deliver
Securities within 30 days of such request) or (3) the Company determines
not to have the Securities represented by a Global Security.


 


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


 


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


 


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


 


The provisions of the last sentence of
the third paragraph of Section 2.04 shall apply to any Global Security if
such Global Security was never issued and sold by the Company and the Company
delivers to the Trustee the Global Security together with written instructions
(which need not comply with Section 10.05 and need not be accompanied by
an Opinion of Counsel) with regard to the cancellation or reduction in the principal
amount of Securities represented thereby, together with the written statement
contemplated by the last sentence of the third paragraph of Section 2.04.


 


Notwithstanding the provisions of
Sections 2.03 and 2.14, unless otherwise specified as contemplated by Section 2.01,
payment of principal of, premium (if any) and interest on and any Additional
Amounts with respect to any Global Security shall be made to the Person or
Persons specified therein.


 


ARTICLE
III

REDEMPTION


 


SECTION 3.01    Applicability of Article.


 


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


 


SECTION 3.02    Notice to the Trustee.


 


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


 


SECTION 3.03    Selection of Securities To
Be Redeemed.


 


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


 


14

















 


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


 


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


 


SECTION 3.04    Notice of Redemption.


 


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


 


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


 


(1)   the Redemption Date;


 


(2)   the Redemption Price;


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 3.05    Effect of Notice of
Redemption.


 


Once notice of redemption is mailed,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price. Upon surrender to the Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price, but
interest installments whose maturity is on or prior to such Redemption Date
will be payable on the relevant Interest Payment Dates to the Holders of record
at the close of business on the relevant record dates specified pursuant to Section 2.01.


 


SECTION 3.06    Deposit of Redemption
Price.


 


On or prior to 11:00 a.m., New York
City time, on any Redemption Date, the Company shall deposit with the Trustee
or the Paying Agent (or, if the Company is acting as the Paying Agent,
segregate and hold in trust as provided in Section 2.06) an amount of
money in same day funds sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on
and any Additional Amounts with respect to, the Securities or portions thereof
which are to be redeemed on that date, other than Securities or


 


15

















 


portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee for cancellation.


 


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


 


SECTION 3.07    Securities Redeemed or
Purchased in Part.


 


Upon surrender to the Paying Agent of a
Security to be redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge a new Security or Securities, of the same series and of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the unredeemed portion of the principal of the
Security so surrendered that is not redeemed.


 


SECTION 3.08    Purchase of Securities.


 


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


 


SECTION 3.09    Mandatory and Optional
Sinking Funds.


 


The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein
referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment.” Unless otherwise
provided by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 3.10.
Each sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series and by
this Article III.


 


SECTION 3.10    Satisfaction of Sinking
Fund Payments with Securities.


 


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


 


SECTION 3.11    Redemption of Securities
for Sinking Fund.


 


Not less than 45 days prior (unless a
shorter period shall be satisfactory to the Trustee) to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee an Officers’ Certificate of the Company specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivery of
or by crediting Securities of that series pursuant to Section 3.10 and
will also


 


16

















 


deliver or cause to be delivered to the Trustee
any Securities to be so delivered. Failure of the Company to timely deliver or
cause to be delivered such Officers’ Certificate and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute the
election of the Company (i) that the mandatory sinking fund payment for
such series due on the next succeeding sinking fund payment date shall be paid
entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section.


 


If the sinking fund payment or payments
(mandatory or optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $100,000 (or the Dollar equivalent thereof
based on the applicable Exchange Rate on the date of original issue of the
applicable Securities) or a lesser sum if the Company shall so request with
respect to the Securities of any particular series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of Securities
of such series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $100,000 (or
the Dollar equivalent thereof as aforesaid) or less and the Company makes no
such request then it shall be carried over until a sum in excess of $100,000
(or the Dollar equivalent thereof as aforesaid) is available. Not less than 30
days before each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 3.04. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 3.05, 3.06 and 3.07.


 


ARTICLE
IV

COVENANTS


 


SECTION 4.01    Payment of Securities.


 


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


 


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


 


SECTION 4.02    Maintenance of Office or
Agency.


 


The Company will maintain in each Place
of Payment for any series of Securities an office or agency (which may be an
office of the Trustee, the Registrar or the Paying Agent) where Securities of
that series may be presented for registration of transfer or exchange, where
Securities of that series may be presented for payment and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. Unless otherwise designated by the Company by
written notice to the Trustee, such office or agency shall be the office of the
Trustee in The City of                           ,
which on the date hereof is located at
                        .
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.


 


The Company may also from time to time
designate one or more other offices or agencies where the Securities of one or
more series may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for


 


17

















 


such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.


 


SECTION 4.03    SEC Reports; Financial
Statements.


 


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


 


(b)   If the Company is
not subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall furnish to all Holders of Rule 144A
Securities and prospective purchasers of Rule 144A Securities designated
by the Holders of Rule 144A Securities, promptly upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) promulgated
under the Securities Act of 1933, as amended.


 


SECTION 4.04    Compliance Certificate.


 


(a)   The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company, a statement signed by an Officer of the Company, which need not
constitute an Officers’ Certificate, complying with TIA § 314(a)(4) and
stating that in the course of performance by the signing Officer of his duties
as such Officer of the Company he would normally obtain knowledge of the keeping,
observing, performing and fulfilling by the Company of its obligations under
this Indenture, and further stating that to the best of his 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 hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults
or Events of Default of which such Officer may have knowledge and what action
the Company is taking or proposes to take with respect thereto).


 


(b)   The Company shall,
so long as Securities of any series are outstanding, deliver to the Trustee,
forthwith upon any Officer of the Company becoming aware of any Default or
Event of Default under this Indenture, an Officers’ Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.


 


SECTION 4.05    Corporate Existence.


 


Subject to Article V, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its existence.


 


SECTION 4.06    Waiver of Stay, Extension
or Usury Laws.


 


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


 


18

















 


SECTION 4.07    Additional Amounts.


 


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


 


ARTICLE
V

SUCCESSORS


 


SECTION 5.01    Limitations on Mergers and
Consolidations.


 


The Company shall not, in any transaction
or series of transactions, consolidate with or merge into any Person, or sell,
lease, convey, transfer or otherwise dispose of all or substantially all of its
assets to any Person, unless:


 


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


 


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


 


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


 


SECTION 5.02    Successor Person
Substituted.


 


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


 


ARTICLE
VI

DEFAULTS AND REMEDIES


 


SECTION 6.01    Events of Default.


 


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


 


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


 


19

















 


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


 


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


 


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


 


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


 


(A)  commences a voluntary case,


 


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


 


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


 


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


 


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


 


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


 


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


 


(C)  orders the liquidation of the
Company; or


 


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


 


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


 


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


 


When a Default is cured, it ceases.


 


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


 


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A
Default under clause (4) or (7) of this Section 6.01 is not an
Event of Default until the Trustee notifies the Company, or the Holders of at
least 25% in principal amount of the then outstanding Securities of the series
affected by such Default (or, in the case of a Default under clause (4) of
this Section 6.01, if outstanding Securities of other series are affected
by such Default, then at least 25% in principal amount of the then outstanding
Securities so affected) notify the Company and the Trustee, of the Default, and
the Company fails to cure the Default within 90 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a “Notice of Default.”


 


SECTION 6.02    Acceleration.


 


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


 


SECTION 6.03    Other Remedies.


 


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


 


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


 


SECTION 6.04    Waiver of Defaults.


 


Subject
to Sections 6.07 and 9.02, the Holders of a majority in principal amount of the
then outstanding Securities of any series or of all series (acting as one
class) by notice to the Trustee may waive an existing or past Default or Event
of Default with respect to such series or all series, as the case may be, and
its consequences (including waivers obtained in connection with a tender offer
or exchange offer for Securities of such series or all series or a solicitation
of consents in respect of Securities of such series or all series, provided that in each case such offer
or solicitation is made to all Holders of then outstanding Securities of such
series or all series (but the terms of such offer or solicitation may vary from
series to series)), except (1) a continuing Default or Event of Default in
the payment of the principal of, or premium, if any, or interest on or any
Additional Amounts with respect to any Security or (2) a continued Default
in respect of a provision that under Section 9.02 cannot be amended or
supplemented without the consent of each Holder affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


 


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SECTION 6.05    Control by Majority.


 


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


 


SECTION 6.06    Limitations on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.07    Rights of Holders to Receive Payment.


 


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


 


SECTION 6.08    Collection Suit by Trustee.


 


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


 


22

















 


SECTION 6.09    Trustee May File Proofs of Claim.


 


The
Trustee is authorized to file such proofs of claim and other papers or
documents and to take such actions, including participating as a member, voting
or otherwise, of any committee of creditors, as may be necessary or advisable
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to
the Company or its creditors or properties and shall be entitled and empowered
to collect, receive and distribute any money or other property payable or
deliverable on any such claims and any Bankruptcy Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 out
of the estate in any such proceeding, shall be denied for any reason, payment
of the same shall be secured by a lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other properties which the
Holders of the Securities may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.


 


SECTION 6.10    Priorities.


 


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


 


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


 


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


 


Third: to the Company.


 


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


 


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


 


SECTION 6.11    Undertaking for Costs.


 


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


 


23

















 


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


 


ARTICLE VII

TRUSTEE


 


SECTION 7.01    Duties of Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 7.02    Rights of Trustee.


 


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


 


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


 


24

















 


good faith in reliance
on such instruction, Officers’ Certificate or Opinion of Counsel. The Trustee
may consult at the Company’s expense with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.


 


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


 


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


 


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


 


SECTION 7.03    May Hold Securities.


 


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


 


SECTION 7.04    Trustee’s Disclaimer.


 


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


 


SECTION 7.05    Notice of Defaults.


 


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


 


SECTION 7.06    Reports by Trustee to Holders.


 


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


 


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


 


SECTION 7.07    Compensation and Indemnity.


 


The
Company agrees to pay to the Trustee for its acceptance of this Indenture and
services hereunder such compensation as the Company and the Trustee shall from
time to time agree in writing. The Trustee’s compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company agrees
to reimburse


 


25

















 


the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee’s agents and counsel.


 


The
Company hereby indemnifies the Trustee and any predecessor Trustee against any
and all loss, liability, damage, claim or expense, including taxes (other than
taxes based upon, measured by or determined by the income of the Trustee),
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, except as set forth in the
next following paragraph. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.


 


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


 


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


 


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


 


SECTION 7.08    Replacement of Trustee.


 


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


 


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


 


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


 


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


 


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


 


(4)  the Trustee otherwise
becomes incapable of acting.


 


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


 


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


 


26

















 


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


 


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


 


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


 


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


 


SECTION 7.09    Successor Trustee by Merger, etc.


 


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


 


In
case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the certificate of the Trustee shall have.


 


SECTION 7.10    Eligibility; Disqualification.


 


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


 


27

















 


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


 


SECTION 7.11    Preferential Collection of Claims Against the Company.


 


The
Trustee is subject to and shall comply with the provisions of 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 VIII

DISCHARGE OF INDENTURE


 


SECTION 8.01    Termination of the Company’s Obligations.


 


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


 


(1)  either:


 


(A)  all outstanding Securities
of such series theretofore authenticated and issued (other than destroyed, lost
or stolen Securities that have been replaced or paid) have been delivered to
the Trustee for cancellation; or


 


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


 


(i)  have become due and
payable, or


 


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


 


(iii)  are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company,


 


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


 


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


 


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


 


28

















 


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


 


(b)   Unless
this Section 8.01(b) is specified as not being applicable to
Securities of a series as contemplated by Section 2.01, the Company may,
at its option, terminate certain of its obligations under this Indenture (“covenant
defeasance”) with respect to the Securities of a series if:


 


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


 


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


 


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


 


(4)  the Company shall have
delivered to the Trustee an Opinion of Counsel from a nationally recognized
counsel acceptable to the Trustee or a tax ruling to the effect that the
Holders will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of the Company’s exercise of its option under this Section 8.01(b) and
will be subject to U.S. Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such option had not
been exercised;


 


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


 


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


 


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


 


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


 


29

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(e)   If
Securities of any series subject to subsections (a), (b), (c) or (d) of
this Section 8.01 are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with
any mandatory or optional sinking fund provisions, the terms of the applicable
trust arrangement shall provide for such redemption, and the Company shall make
such arrangements as are reasonably satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the
Company.


 


SECTION 8.02    Application of Trust Money.


 


The
Trustee or a trustee satisfactory to the Trustee and the Company shall hold in
trust money or Government Obligations deposited with it pursuant to Section 8.01
hereof. It shall apply the deposited money and the money from Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of


 


30

















 


principal of, premium
(if any) and interest on and any Additional Amounts with respect to the
Securities of the series with respect to which the deposit was made.


 


SECTION 8.03    Repayment to Company.


 


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


 


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


 


SECTION 8.04    Reinstatement.


 


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


 


ARTICLE IX

SUPPLEMENTAL INDENTURES AND AMENDMENTS


 


SECTION 9.01    Without Consent of Holders.


 


The
Company and the Trustee may amend or supplement this Indenture or the
Securities or waive any provision hereof or thereof without the consent of any
Holder:


 


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


 


(2)  to comply with Section 5.01;


 


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


 


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


 


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


 


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


 


31

















 


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


 


(8)  to change or eliminate any
of the provisions of this Indenture; provided
that any such change or elimination shall become effective only when there is
no outstanding Security of any series created prior to the execution of such
amendment or supplemental indenture that is adversely affected in any material
respect by such change in or elimination of such provision;


 


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


 


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


 


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


 


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


 


SECTION 9.02    With Consent of Holders.


 


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


 


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


 


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


 


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


 


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


 


32

















 


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


 


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


 


(3)  reduce the principal of,
any premium on or any mandatory sinking fund payment with respect to, or change
the Stated Maturity of, any Security or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 9.03    Compliance with Trust Indenture Act.


 


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


 


SECTION 9.04    Revocation and Effect of Consents.


 


Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on
any Security. However, any


 


33

















 


such Holder or
subsequent Holder may revoke the consent as to his or her Security or portion
of a Security if the Trustee receives written notice of revocation before a
date and time therefor identified by the Company in a notice furnished to such
Holder in accordance with the terms of this Indenture or, if no such date and
time shall be identified, the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.


 


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


 


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


 


SECTION 9.05    Notation on or Exchange of Securities.


 


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


 


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


 


SECTION 9.06    Trustee to Sign Amendments, etc.


 


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


 


ARTICLE X

MISCELLANEOUS


 


SECTION 10.01    Trust Indenture Act Controls.


 


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


 


34

















 


SECTION 10.02    Notices.


 


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


 


If to the Company:


 


Cano Petroleum, Inc.

801 Cherry Street, Suite 3200


Fort Worth, Texas 76102

Attn:  Chief Financial Officer

Telephone: (817) 698-0900

Facsimile: (817) 334-0222


 


With a copy to:


 


Haynes and Boone, LLP


901 Main Street, Suite 3100


Dallas, TX 
75202


Attn:  Bruce
Newsome


Facsimile: 
(214) 200-0636


 


If to the Trustee:


 


 


 


 


Attn:


 


Telephone:


 


Facsimile:


 


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


 


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


 


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


 


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


 


35

















 


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


 


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


 


SECTION 10.03    Communication by Holders with Other Holders.


 


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


 


SECTION 10.04    Certificate and Opinion as to Conditions Precedent.


 


Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall, if requested by the Trustee, furnish
to the Trustee at the expense of the Company:


 


(1)  an Officers’ Certificate
(which shall include the statements set forth in Section 10.05) stating
that, in the opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action have been
complied with; and


 


(2)  an Opinion of Counsel
(which shall include the statements set forth in Section 10.05 hereof)
stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.


 


SECTION 10.05    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)) shall comply with the provisions of TIA § 314(e) and
shall include:


 


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


 


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


 


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


 


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


 


SECTION 10.06    Rules by Trustee and Agents.


 


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


 


SECTION 10.07    Legal Holidays.


 


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


 


36

















 


SECTION 10.08    No Recourse Against Others.


 


A
director, officer, employee, stockholder, partner or other owner of the Company
or the Trustee, as such, shall not have any liability for any obligations of
the Company under the Securities or for any obligations of the Company or the
Trustee under this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release shall
be part of the consideration for the issue of Securities.


 


SECTION 10.09    Governing Law.


 


THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


SECTION 10.10    No Adverse Interpretation of Other Agreements.


 


This
Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.


 


SECTION 10.11    Successors.


 


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


 


SECTION 10.12    Severability.


 


In
case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall, to the fullest extent permitted by applicable law,
not in any way be affected or impaired thereby.


 


SECTION 10.13    Counterpart Originals.


 


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


 


SECTION 10.14    Table of Contents, Headings, etc.


 


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


 


37

















 


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


 


	
   

  	
  CANO PETROLEUM, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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