EXHIBIT 4.8


 


FORM OF SUBORDINATED INDENTURE


 


CANO PETROLEUM, INC.


 


as Issuer


 


and


 






 


as Trustee


 






 


Indenture

Dated as of                                                                                        ,


 






 


Subordinated
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)

  	
   

  	
  11.03

  
	
   

  	
   

  	
  (c)

  	
   

  	
  11.03

  
	
  § 313

  	
   

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.06

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.06

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  § 314

  	
   

  	
  (a)

  	
   

  	
  4.03,
  4.04

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  11.04

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  11.04

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
  (e)

  	
   

  	
  11.05

  
	
  § 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)

  	
   

  	
  11.01

  



 






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


 


i

















 


TABLE OF CONTENTS


 


	
  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

  	
   

  



 


ii

















 


	
  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

  	
   

  
	
  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

  	
   

  



 


iii

















 


	
  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

  	
  SUBORDINATION
  OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
  Securities
  Subordinated to Senior Debt

  	
   

  
	
  SECTION 10.02

  	
  No
  Payment on Securities in Certain Circumstances

  	
   

  
	
  SECTION 10.03

  	
  Securities
  Subordinated to Prior Payment of All Senior Debt on Dissolution, Liquidation
  or Reorganization

  	
   

  
	
  SECTION 10.04

  	
  Subrogation
  to Rights of Holders of Senior Debt

  	
   

  
	
  SECTION 10.05

  	
  Obligations
  of the Company Unconditional

  	
   

  
	
  SECTION 10.06

  	
  Trustee
  Entitled to Assume Payments Not Prohibited in Absence of Notice

  	
   

  
	
  SECTION 10.07

  	
  Application
  by Trustee of Amounts Deposited with It

  	
   

  
	
  SECTION 10.08

  	
  Subordination
  Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior
  Debt

  	
   

  
	
  SECTION 10.09

  	
  Trustee
  to Effectuate Subordination of Securities

  	
   

  
	
  SECTION 10.10

  	
  Right
  of Trustee to Hold Senior Debt

  	
   

  
	
  SECTION 10.11

  	
  Article X
  Not to Prevent Events of Default

  	
   

  
	
  SECTION 10.12

  	
  No
  Fiduciary Duty of Trustee to Holders of Senior Debt

  	
   

  
	
  SECTION 10.13

  	
  Article Applicable
  to Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
  Trust
  Indenture Act Controls

  	
   

  
	
  SECTION 11.02

  	
  Notices

  	
   

  
	
  SECTION 11.03

  	
  Communication
  by Holders with Other Holders

  	
   

  
	
  SECTION 11.04

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  
	
  SECTION 11.05

  	
  Statements
  Required in Certificate or Opinion

  	
   

  
	
  SECTION 11.06

  	
  Rules by
  Trustee and Agents

  	
   

  
	
  SECTION 11.07

  	
  Legal
  Holidays

  	
   

  
	
  SECTION 11.08

  	
  No
  Recourse Against Others

  	
   

  
	
  SECTION 11.09

  	
  Governing
  Law

  	
   

  
	
  SECTION 11.10

  	
  No
  Adverse Interpretation of Other Agreements

  	
   

  
	
  SECTION 11.11

  	
  Successors

  	
   

  
	
  SECTION 11.12

  	
  Severability

  	
   

  
	
  SECTION 11.13

  	
  Counterpart
  Originals

  	
   

  
	
  SECTION 11.14

  	
  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 subordinated 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.


 


“Senior Debt”
of the Company, unless otherwise provided with respect to the Securities of a
series as contemplated by Section 2.01, means (i) all Debt of the
Company, whether currently outstanding or hereafter created, incurred or
assumed, unless, by the terms of the instrument creating or evidencing such
Debt or pursuant to which such Debt is outstanding, it is provided that
such Debt is not superior in right of payment to the Securities or to other
Debt which is pari passu with or
subordinated to the Securities, and (ii) any modifications, refunding,
deferrals, renewals or extensions of any such Debt or any securities, notes or
other evidences of Debt issued in exchange for such Debt; provided that, unless otherwise provided
with respect to the Securities of a series as contemplated by Section 2.01,
in no event shall “Senior Debt” include (a) Debt of the Company owed or
owing to any Subsidiary or any officer, director or employee of the Company or
any Subsidiary, (b) Debt to trade creditors or (c) any liability for
taxes owed or owing by the Company.


 


 “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.


 


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

  	
   

  
	
  “Payment
  Default”

  	
   

  	
  10.02

  	
   

  
	
  “Registrar”

  	
   

  	
  2.05

  	
   

  
	
  “Required
  Currency”

  	
   

  	
  6.10

  	
   

  
	
  “Successor”

  	
   

  	
  5.01

  	
   

  



 


4

















 


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)                                  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.


 


5

















 


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;


 


(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;


 


6

















 


(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;


 


(20)                            any
modifications to the definition of “Senior Debt,” to Article X or to the
other provisions regarding subordination with respect to the Securities of the
series; and


 


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


 


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


 


If any of the terms of the series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action, together with such Board Resolution, shall
be set forth in an Officers’ Certificate


 


7

















 


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.


 


The Securities shall be subordinated in
right of payment to Senior Debt as provided in Article X and/or as
specified as contemplated pursuant to this Section 2.01.


 


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 11.05 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.


 


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


 


8

















 


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 11.04), and (subject to Section 7.01) shall be
fully protected in relying upon:


 


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


 


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


 


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


 


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


 


(iii)                               that
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 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


 


10

















 


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.


 


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,


 


11

















 


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.


 


                                                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


 


12

















 


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 11.05 and need not be
accompanied by an Opinion of Counsel.


 


                                                Members
of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf
by the Depositary, or the Trustee or the Security Custodian as its custodian,
or under such Global Security, and the Depositary may be treated by the
Company, 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.


 


                                                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.


 


13

















 


                                                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 11.05
and need not be accompanied by an Opinion of Counsel) with regard to the
cancellation or reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of the third paragraph of Section 2.04.


 


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


 


                                                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.


 


14

















 


                                                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 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.


 


15

















 


                                                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 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


 


16

















 


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 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.


 


17

















 


                                                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.


 


                                                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


 


18

















 


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;


 


(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;


 


19

















 


(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.


 


                                                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


 


20

















 


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.


 


                                                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


 


21

















 


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.


 


                                                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


 


22

















 


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,
subject to Article X, 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.


 


23














 


                                                SECTION 6.11                    Undertaking for Costs.


 


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


 


24

















 


                                                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 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.


 


25

















 


                                                SECTION 7.07                    Compensation and Indemnity.


 


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


 


                                                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.


 


26

















 


                                                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.


 


                                                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.


 


27

















 


                                                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.


 


                                                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


 


28

















 


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


 


(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


 


29

















 


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.


 


                                                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.


 


30

















 


                                                SECTION 8.02                    Application of Trust Money.


 


                                                The
Trustee or a trustee satisfactory to the Trustee and the Company shall hold in
trust money or Government Obligations deposited with it pursuant to Section 8.01
hereof. It shall apply the deposited money and the money from Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of, premium (if any) and interest on and any
Additional Amounts with respect to the Securities of the series with respect to
which the deposit was made. Money and securities held in trust are not subject
to Article X.


 


                                                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


 


31

















 


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;


 


(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;


 


(9)                                  modify
the provisions of this Indenture with respect to the subordination of any
Security in a manner adverse to the Holder thereof; or


 


(10)                            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.


 


                                                An
amendment under this Section 9.02 may not make any change that adversely
affects the rights under Article X of any holder of an issue of Senior
Debt unless the holders of the issue pursuant to its terms consent to the
change.


 


                                                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.


 


33

















 


                                                SECTION 9.03                    Compliance with Trust Indenture Act.


 


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


 


                                                SECTION 9.04                    Revocation and Effect of Consents.


 


                                                Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his or her Security or portion of a Security if the Trustee
receives written notice of revocation before a date and time therefor
identified by the Company 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.


 


34

















 


ARTICLE
X

SUBORDINATION OF SECURITIES


 


                                                SECTION 10.01              Securities Subordinated to Senior Debt.


 


                                                The
Company and each Holder of a Security of a series, by his acceptance thereof,
agree that (a) the payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to each and all the
Securities of such series and (b) any other payment in respect of the
Securities of such series, including on account of the acquisition or
redemption of Securities of such series by the Company, is subordinated, to the
extent and in the manner provided in this Article X, to the prior payment
in full of all Senior Debt of the Company, whether outstanding at the date of
this Indenture or thereafter created, incurred, assumed or guaranteed, and that
these subordination provisions are for the benefit of the holders of Senior
Debt.


 


                                                This
Article X shall constitute a continuing offer to all Persons who, in
reliance upon such provisions, become holders of, or continue to hold, Senior
Debt, and such provisions are made for the benefit of the holders of Senior
Debt, and such holders are made obligees hereunder and any one or more of them
may enforce such provisions.


 


                                                SECTION 10.02              No Payment on Securities in Certain Circumstances.


 


(a)                                  Unless
otherwise provided with respect to the Securities of a series as contemplated
by Section 2.01, no payment shall be made by or on behalf of the Company
on account of the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Securities of any series or to acquire
any Securities of such series (including any repurchases of Securities of such
series pursuant to the provisions thereof at the option of the Holder thereof)
for cash or property, or on account of any redemption provisions of Securities
of such series, in the event of default in payment of any principal of, premium
(if any) or interest on any Senior Debt of the Company when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
acceleration of maturity or otherwise (a “Payment Default”), unless and until
such Payment Default has been cured or waived or otherwise has ceased to exist
or such Senior Debt shall have been discharged or paid in full.


 


(b)                                 In
furtherance of the provisions of Section 10.01, in the event that, notwithstanding
the foregoing provisions of this Section 10.02, any payment or
distribution of assets of the Company shall be received by the Trustee, the
Paying Agent or the Holders of Securities of any series at a time when such
payment or distribution was prohibited by the provisions of this Section 10.02,
then, unless such payment or distribution is no longer prohibited by this Section 10.02,
such payment or distribution (subject to the provisions of Section 10.07)
shall be received and held in trust by the Trustee, the Paying Agent or such
Holder for the benefit of the holders of Senior Debt of the Company, and shall
be paid or delivered by the Trustee, the Paying Agent or such Holders, as the
case may be, to the holders of Senior Debt of the Company remaining unpaid or
unprovided for or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Debt of the Company may have been issued, ratably, according to the aggregate
amounts remaining unpaid on account of such Senior Debt of the Company held or
represented by each, for application to the payment of all Senior Debt in full
after giving effect to all concurrent payments and distributions to or for the
holders of such Senior Debt.


 


                                                SECTION 10.03              Securities Subordinated to Prior Payment of All Senior Debt
on Dissolution, Liquidation or Reorganization.


 


                                                Upon
any distribution of assets of the Company or upon any dissolution, winding up,
total or partial liquidation or reorganization of the Company, whether
voluntary or involuntary, in bankruptcy, insolvency, receivership or similar
proceeding or upon assignment for the benefit of creditors:


 


(1)                                  the
holders of all Senior Debt of the Company shall first be entitled to receive
payments in full before the Holders of Securities of any series are entitled to
receive any payment on account of the principal of, premium (if any) or
interest on or any Additional Amounts with respect to Securities of such
series;


 


(2)                                  any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of Securities of
any series or the Trustee on behalf of such


 


35

















 


Holders
would be entitled, except for the provisions of this Article X, shall be
paid by the liquidating trustee or agent or other Person making such a payment
or distribution directly to the holders of such Senior Debt or their
representative, ratably according to the respective amounts of Senior Debt held
or represented by each, to the extent necessary to make payment in full of all
such Senior Debt remaining unpaid after giving effect to all concurrent
payments and distributions to the holders of such Senior Debt; and


 


(3)                                  in
the event that, notwithstanding the foregoing, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or the Holders of Securities of
any series or any Paying Agent (or, if the Company or any Subsidiary is acting
as the Paying Agent, money for any such payment or distribution shall be
segregated or held in trust) on account of the principal of, premium (if any)
or interest on or any Additional Amounts with respect to the Securities of such
series before all Senior Debt of the Company is paid in full, such payment or
distribution (subject to the provisions of Section 10.07) shall be
received and held in trust by the Trustee or such Holder or Paying Agent for
the benefit of the holders of such Senior Debt, or their respective
representatives, ratably according to the respective amounts of such Senior
Debt held or represented by each, to the extent necessary to make payment as
provided herein of all such Senior Debt remaining unpaid after giving effect to
all concurrent payments and distributions and all provisions therefor to or for
the holders of such Senior Debt, but only to the extent that as to any holder
of such Senior Debt, as promptly as practical following notice from the Trustee
to the holders of such Senior Debt that such prohibited payment has been
received by the Trustee, Holder(s) or Paying Agent (or has been segregated
as provided above), such holder (or a representative therefor) notifies the
Trustee of the amounts then due and owing on such Senior Debt, if any, held by
such holder and only the amounts specified in such notices to the Trustee shall
be paid to the holders of such Senior Debt.


 


                                                SECTION 10.04              Subrogation to Rights of Holders of Senior Debt.


 


                                                Subject
to the payment in full of all Senior Debt of the Company as provided herein,
the Holders of the Securities of any series shall be subrogated (to the extent
of the payments or distributions made to the holders of such Senior Debt pursuant
to the provisions of this Article X) to the rights of the holders of such
Senior Debt to receive payments or distributions of assets of the Company
applicable to the Senior Debt until all amounts owing on the Securities of such
series shall be paid in full. For the purpose of such subrogation, no such
payments or distributions to the holders of such Senior Debt by the Company, or
by or on behalf of the Holders of the Securities of such series by virtue of
this Article X, which otherwise would have been made to such Holders
shall, as between the Company and such Holders, be deemed to be payment by the
Company or on account of such Senior Debt, it being understood that the
provisions of this Article X are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities of a series,
on the one hand, and the holders of such Senior Debt, on the other hand.


 


                                                If
any payment or distribution to which the Holders of the Securities would
otherwise have been entitled but for the provisions of this Article X
shall have been applied, pursuant to the provisions of this Article X, to
the payment of amounts payable under Senior Debt of the Company, then such
Holders shall be entitled to receive from the holders of such Senior Debt any
payments or distributions received by such holders of Senior Debt in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Debt in full.


 


                                                SECTION 10.05              Obligations of the Company Unconditional.


 


                                                Nothing
contained in this Article X or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company and the
Holders of the Securities of any series, the obligation of the Company, which
is absolute and unconditional, to pay to such Holders the principal of, premium
(if any) and interest on and any Additional Amounts with respect to the
Securities of such series as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of such Holders and creditors of the Company other than the holders of
the Senior Debt, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this Article X,
of the holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Notwithstanding anything
to the contrary in this Article X or elsewhere in this Indenture or in the
Securities, upon any distribution of assets of the


 


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Company referred to in this Article X, the
Trustee, subject to the provisions of Sections 7.01 and 7.02, and the Holders
of the Securities shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
such Holders for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt and other Debt
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article X
so long as such court has been apprised of the provisions of, or the order,
decree or certificate makes reference to, the provisions of this Article X.


 


                                                SECTION 10.06              Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.


 


                                                The
Trustee shall not at any time be charged with knowledge of the existence of any
facts that would prohibit the making of any payment to or by the Trustee unless
and until a Responsible Officer of the Trustee or any Paying Agent shall have
received, no later than two Business Days prior to such payment, written notice
thereof from the Company or from one or more holders of Senior Debt or from any
representative thereof and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be
entitled in all respects conclusively to assume that no such fact exists.


 


                                                SECTION 10.07              Application by Trustee of Amounts Deposited with It.


 


                                                Amounts
deposited in trust with the Trustee pursuant to and in accordance with Article VIII
shall be for the sole benefit of Holders of Securities of the series for the
benefit of which such amounts were deposited, and, to the extent allocated for
the payment of Securities of such series, shall not be subject to the
subordination provisions of this Article X. Otherwise, any deposit of
assets with the Trustee or the Paying Agent (whether or not in trust) for the
payment of principal of, premium (if any) or interest on or any Additional
Amounts with respect to any Securities of any series shall be subject to the
provisions of Sections 10.01, 10.02, 10.03 and 10.04; provided that if prior to two Business
Days preceding the date on which by the terms of this Indenture any such assets
may become distributable for any purpose (including, without limitation, the
payment of either principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Security), a Responsible Officer of the
Trustee or such Paying Agent shall not have received with respect to such
assets the written notice provided for in Section 10.06, then the Trustee
or such Paying Agent shall have full power and authority to receive such assets
and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary that may be received by it on or
after such date; and provided further
that nothing contained in this Article X shall prevent the Company from
making, or the Trustee from receiving or applying, any payment in connection
with the redemption of Securities of a series if the first publication of
notice of such redemption (whether by mail or otherwise in accordance with this
Indenture) has been made, and the Trustee has received such payment from the
Company, prior to the occurrence of any of the contingencies specified in Section 10.02
or 10.03.


 


                                                SECTION 10.08              Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.


 


                                                No
right of any present or future holders of any Senior Debt to enforce
subordination provisions contained in this Article X shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with. The holders of Senior Debt may extend, renew, modify or
amend the terms of the Senior Debt or any security therefor and release, sell
or exchange such security and otherwise deal freely with the Company, all
without affecting the liabilities and obligations of the parties to this
Indenture or the Holders of the Securities of any series.


 


                                                SECTION 10.09              Trustee to Effectuate Subordination of Securities.


 


                                                Each
Holder of a Security of any series by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained
in this Article X and to protect the rights of the Holders of the
Securities of such series pursuant to this Indenture, and appoints the Trustee
his attorney-in-fact for such purpose, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership


 


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proceedings or upon an assignment for the
benefit of creditors of the Company), the filing of a claim for the unpaid
balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Senior Debt or their representative is hereby authorized to have the right to
file and is hereby authorized to file an appropriate claim for and on behalf of
the Holders of Securities of such series. Nothing contained herein shall be
deemed to authorize the Trustee or the holders of Senior Debt or their
representative to authorize or consent to or accept or adopt on behalf of any
Holder of Securities of any series any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of such series or the rights
of any Holder thereof, or to authorize the Trustee or the holders of Senior
Debt or their representative to vote in respect of the claim of any Holder of
the Securities of such series in any such proceeding.


 


                                                SECTION 10.10              Right of Trustee to Hold Senior Debt.


 


                                                The
Trustee in its individual capacity shall be entitled to all of the rights set
forth in this Article X in respect of any Senior Debt at any time held by
it to the same extent as any other holder of Senior Debt, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.


 


                                                SECTION 10.11              Article X Not to Prevent Events of Default.


 


                                                The
failure to make a payment on account of principal of or premium (if any) or
interest on the Securities of any series by reason of any provision of this Article X
shall not be construed as preventing the occurrence of a Default or an Event of
Default under Section 6.01 with respect to Securities of such series or in
any way prevent the Holders of the Securities of such series from exercising
any right hereunder other than the right to receive payment on the Securities
of such series.


 


                                                SECTION 10.12              No Fiduciary Duty of Trustee to Holders of Senior Debt.


 


                                                The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt, and shall not be liable to any such holders (other than for its willful
misconduct or negligence) if it shall in good faith mistakenly pay over or
distribute to the Holders of the Securities of any series or the Company or any
other Person, cash, property or securities to which any holders of Senior Debt
shall be entitled by virtue of this Article X or otherwise. Nothing in
this Section 10.12 shall affect the obligation of any other such Person to
hold such payment for the benefit of, and to pay such payment over to, the holders
of Senior Debt or their representative.


 


                                                SECTION 10.13              Article Applicable to Paying Agent.


 


                                                In
case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term “Trustee” as
used in this Article X shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article X in addition to or in place of the
Trustee; provided, however, that this Section 10.13
shall not apply to the Company or any Subsidiary if the Company or such
Subsidiary acts as Paying Agent.


 


ARTICLE XI

MISCELLANEOUS


 


                                                SECTION 11.01              Trust Indenture Act Controls.


 


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


 


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                                                SECTION 11.02              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.


 


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                                                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 11.03              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 11.04              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 11.05)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and


 


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


 


                                                SECTION 11.05              Statements Required in Certificate or Opinion.


 


                                                Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA § 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 11.06    Rules by Trustee and
Agents.


 


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


 


                                                SECTION 11.07              Legal Holidays.


 


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


 


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                                                SECTION 11.08              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 11.09              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 11.10              No Adverse Interpretation of Other Agreements.


 


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


 


                                                SECTION 11.11              Successors.


 


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


 


                                                SECTION 11.12              Severability.


 


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


 


                                                SECTION 11.13              Counterpart Originals.


 


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


 


                                                SECTION 11.14              Table of Contents, Headings, etc.


 


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


 


* * * * *


 


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                                                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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