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  Exhibit 4.11    
    


 
    CLOUD PEAK ENERGY INC.,    
    
    as Issuer,    
    
    THE SUBSIDIARY GUARANTORS PARTY HERETO,    
    
    as Subsidiary Guarantors,    
    
    and    

 
    [                    ],    
    
    as Trustee    
    
    INDENTURE    
    
    Dated as
of                           
    
    Subordinated Debt Securities    










 








































 
 

  CROSS-REFERENCE TABLE    
    

 






 



							
	TIA Section



 
	 	Indenture Section 	 
	 310
	 	(a)	 	 	7.10	 
	 
	 	(b)	 	 	7.10	 
	 
	 	(c)	 	 	N.A.	 
	 311
	 	(a)	 	 	7.11	 
	 
	 	(b)	 	 	7.11	 
	 
	 	(c)	 	 	N.A.	 
	 312
	 	(a)	 	 	5.01	 
	 
	 	(b)	 	 	5.02	 
	 
	 	(c)	 	 	5.02	 
	 313
	 	(a)	 	 	5.03	 
	 
	 	(b)	 	 	5.03	 
	 
	 	(c)	 	 	13.03	 
	 
	 	(d)	 	 	5.03	 
	 314
	 	(a)	 	 	4.05	 
	 
	 	(b)	 	 	N.A.	 
	 
	 	(c)(1)	 	 	13.05	 
	 
	 	(c)(2)	 	 	13.05	 
	 
	 	(c)(3)	 	 	N.A.	 
	 
	 	(d)	 	 	N.A.	 
	 
	 	(e)	 	 	13.05	 
	 
	 	(f)	 	 	N.A.	 
	 315
	 	(a)	 	 	7.01	 
	 
	 	(b)	 	 	6.07 & 13.03	 
	 
	 	(c)	 	 	7.01	 
	 
	 	(d)	 	 	7.01	 
	 
	 	(e)	 	 	6.08	 
	 316
	 	(a) (last sentence)	 	 	1.01	 
	 
	 	(a)(1)(A)	 	 	6.06	 
	 
	 	(a)(1)(B)	 	 	6.06	 
	 
	 	(a)(2)	 	 	 9.01(d	)
	 
	 	(b)	 	 	6.04	 
	 
	 	(c)	 	 	5.04	 
	 317
	 	(a)(1)	 	 	6.02	 
	 
	 	(a)(2)	 	 	6.02	 
	 
	 	(b)	 	 	4.04	 
	 318
	 	(a)	 	 	13.07	 




 


 




N.A.
means Not Applicable 


NOTE:    This
Cross-Reference table shall not, for any purpose, be deemed part of this Indenture. 

 

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  TABLE OF CONTENTS    
    

 






 



					
	 
	 	 
	 	Page 
	  ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

	 Section 1.01.
	 	 Definitions
	 	

1
	 Section 1.02.
	 	 Other Definitions
	 	6
	 Section 1.03.
	 	 Incorporation by Reference of Trust Indenture Act
	 	6
	 Section 1.04.
	 	 Rules of Construction
	 	6
	  ARTICLE II

DEBT SECURITIES

	 Section 2.01.
	 	 Forms Generally
	 	

6
	 Section 2.02.
	 	 Form of Trustee's Certificate of Authentication
	 	7
	 Section 2.03.
	 	 Principal Amount; Issuable in Series
	 	7
	 Section 2.04.
	 	 Execution of Debt Securities
	 	9
	 Section 2.05.
	 	 Authentication and Delivery of Debt Securities
	 	9
	 Section 2.06.
	 	 Denomination of Debt Securities
	 	10
	 Section 2.07.
	 	 Registration of Transfer and Exchange
	 	10
	 Section 2.08.
	 	 Temporary Debt Securities
	 	11
	 Section 2.09.
	 	 Mutilated, Destroyed, Lost or Stolen Debt Securities
	 	12
	 Section 2.10.
	 	 Cancellation of Surrendered Debt Securities
	 	12
	 Section 2.11.
	 	 Provisions of this Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
	 	13
	 Section 2.12.
	 	 Payment of Interest; Interest Rights Preserved
	 	13
	 Section 2.13.
	 	 Securities Denominated in Dollars
	 	13
	 Section 2.14.
	 	 Wire Transfers
	 	13
	 Section 2.15.
	 	 Securities Issuable in the Form of a Global Security
	 	13
	 Section 2.16.
	 	 Medium Term Securities
	 	15
	 Section 2.17.
	 	 Defaulted Interest
	 	16
	 Section 2.18.
	 	 CUSIP Numbers
	 	17
	  ARTICLE III

REDEMPTION OF DEBT SECURITIES

	 Section 3.01.
	 	 Applicability of Article
	 	

17
	 Section 3.02.
	 	 Notice of Redemption; Selection of Debt Securities
	 	17
	 Section 3.03.
	 	 Payment of Debt Securities Called for Redemption
	 	18
	 Section 3.04.
	 	 Mandatory and Optional Sinking Funds
	 	19
	 Section 3.05.
	 	 Redemption of Debt Securities for Sinking Fund
	 	19
	  ARTICLE IV

PARTICULAR COVENANTS OF THE COMPANY

	 Section 4.01.
	 	 Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities
	 	

20
	 Section 4.02.
	 	 Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
	 	21
	 Section 4.03.
	 	 Appointment to Fill a Vacancy in the Office of Trustee
	 	21
	 Section 4.04.
	 	 Duties of Paying Agents, etc. 
	 	21
	 Section 4.05.
	 	 SEC Reports; Financial Statements
	 	22
	 Section 4.06.
	 	 Compliance Certificate
	 	22
	 Section 4.07.
	 	 Further Instruments and Acts
	 	23




 

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	 	Page 
	 Section 4.08.
	 	 Existence
	 	23
	 Section 4.09.
	 	 Maintenance of Properties
	 	23
	 Section 4.10.
	 	 Payment of Taxes and Other Claims
	 	23
	 Section 4.11.
	 	 Waiver of Certain Covenants
	 	23
	

   ARTICLE V

HOLDERS' LISTS AND REPORTS BY THE TRUSTEE

	 Section 5.01.
	 	 Company to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
	 	

24
	 Section 5.02.
	 	 Communications to Holders
	 	24
	 Section 5.03.
	 	 Reports by Trustee
	 	24
	

   ARTICLE VI

REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT

	 Section 6.01.
	 	 Events of Default
	 	

25
	 Section 6.02.
	 	 Collection of Debt by Trustee, etc. 
	 	26
	 Section 6.03.
	 	 Application of Moneys Collected by Trustee
	 	27
	 Section 6.04.
	 	 Limitation on Suits by Holders
	 	28
	 Section 6.05.
	 	 Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
	 	29
	 Section 6.06.
	 	 Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
	 	29
	 Section 6.07.
	 	 Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
	 	29
	 Section 6.08.
	 	 Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
	 	29
	

   ARTICLE VII

CONCERNING THE TRUSTEE

	 Section 7.01.
	 	 Certain Duties and Responsibilities
	 	

30
	 Section 7.02.
	 	 Certain Rights of Trustee
	 	31
	 Section 7.03.
	 	 Trustee Not Liable for Recitals in Indenture or in Debt Securities
	 	32
	 Section 7.04.
	 	 Trustee, Paying Agent or Registrar May Own Debt Securities
	 	32
	 Section 7.05.
	 	 Moneys Received by Trustee to Be Held in Trust
	 	32
	 Section 7.06.
	 	 Compensation and Reimbursement
	 	32
	 Section 7.07.
	 	 Right of Trustee to Rely on an Officers' Certificate Where No Other Evidence Specifically Prescribed
	 	33
	 Section 7.08.
	 	 Separate Trustee; Replacement of Trustee
	 	33
	 Section 7.09.
	 	 Successor Trustee by Merger
	 	34
	 Section 7.10.
	 	 Eligibility; Disqualification
	 	34
	 Section 7.11.
	 	 Preferential Collection of Claims Against Company
	 	34
	 Section 7.12.
	 	 Compliance with Tax Laws
	 	35
	

   ARTICLE VIII

CONCERNING THE HOLDERS

	 Section 8.01.
	 	 Evidence of Action by Holders
	 	

35
	 Section 8.02.
	 	 Proof of Execution of Instruments and of Holding of Debt Securities
	 	35
	 Section 8.03.
	 	 Who May Be Deemed Owner of Debt Securities
	 	35
	 Section 8.04.
	 	 Instruments Executed by Holders Bind Future Holders; Record Date
	 	35




 

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	 	Page 
	  ARTICLE IX

SUPPLEMENTAL INDENTURES

	 Section 9.01.
	 	 Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders
	 	

36
	 Section 9.02.
	 	 Modification of Indenture with Consent of Holders of Debt Securities
	 	37
	 Section 9.03.
	 	 Effect of Supplemental Indentures
	 	38
	 Section 9.04.
	 	 Debt Securities May Bear Notation of Changes by Supplemental Indentures
	 	38
	

   ARTICLE X

CONSOLIDATION, MERGER, SALE OR CONVEYANCE

	 Section 10.01.
	 	 Consolidations and Mergers of the Company
	 	

39
	 Section 10.02.
	 	 Rights and Duties of Successor Issuer
	 	39
	  ARTICLE XI

SATISFACTION AND DISCHARGE OF

INDENTURE; DEFEASANCE; UNCLAIMED MONEYS

	 Section 11.01.
	 	 Applicability of Article
	 	

40
	 Section 11.02.
	 	 Satisfaction and Discharge of Indenture; Defeasance
	 	40
	 Section 11.03.
	 	 Conditions of Defeasance
	 	40
	 Section 11.04.
	 	 Application of Trust Money
	 	41
	 Section 11.05.
	 	 Repayment to Company
	 	41
	 Section 11.06.
	 	 Indemnity for U.S. Government Obligations
	 	42
	 Section 11.07.
	 	 Reinstatement
	 	42
	

   ARTICLE XII

SUBORDINATION OF DEBT SECURITIES AND GUARANTEES

	 Section 12.01.
	 	 Applicability of Article; Agreement to Subordinate
	 	

42
	 Section 12.02.
	 	 Liquidation, Dissolution, Bankruptcy
	 	42
	 Section 12.03.
	 	 Default on Senior Indebtedness
	 	42
	 Section 12.04.
	 	 Acceleration of Payment of Debt Securities
	 	43
	 Section 12.05.
	 	 When Distribution Must Be Paid Over
	 	43
	 Section 12.06.
	 	 Subrogation
	 	44
	 Section 12.07.
	 	 Relative Rights
	 	44
	 Section 12.08.
	 	 Subordination May Not Be Impaired by Obligors
	 	44
	 Section 12.09.
	 	 Rights of Trustee and Paying Agent
	 	44
	 Section 12.10.
	 	 Distribution or Notice to Representative
	 	44
	 Section 12.11.
	 	 Article XII Not to Prevent Defaults or Limit Right to Accelerate
	 	44
	 Section 12.12.
	 	 Trust Moneys Not Subordinated
	 	45
	 Section 12.13.
	 	 Trustee Entitled to Rely
	 	45
	 Section 12.14.
	 	 Trustee to Effectuate Subordination
	 	45
	 Section 12.15.
	 	 Trustee Not Fiduciary for Holders of Senior Indebtedness
	 	45
	 Section 12.16.
	 	 Reliance by Holders of Senior Indebtedness on Subordination Provisions
	 	45
	

   ARTICLE XIII

MISCELLANEOUS PROVISIONS

	 Section 13.01.
	 	 Successors and Assigns of the Company Bound by Indenture
	 	

46
	 Section 13.02.
	 	 Acts of Board, Committee or Officer of Successor Issuer Valid
	 	46
	 Section 13.03.
	 	 Required Notices or Demands
	 	46




 

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	 	Page 
	 Section 13.04.
	 	 Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
	 	47
	 Section 13.05.
	 	 Officers' Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Company
	 	47
	 Section 13.06.
	 	 Payments Due on Legal Holidays
	 	47
	 Section 13.07.
	 	 Provisions Required by TIA to Control
	 	47
	 Section 13.08.
	 	 Computation of Interest on Debt Securities
	 	48
	 Section 13.09.
	 	 Rules by Trustee, Paying Agent and Registrar
	 	48
	 Section 13.10.
	 	 No Recourse Against Others
	 	48
	 Section 13.11.
	 	 Severability
	 	48
	 Section 13.12.
	 	 Effect of Headings
	 	48
	 Section 13.13.
	 	 Indenture May Be Executed in Counterparts
	 	48
	

   ARTICLE XIV

GUARANTEE

	 Section 14.01.
	 	 Unconditional Guarantee
	 	

48
	 Section 14.02.
	 	 Execution and Delivery of Notation of Guarantee
	 	50
	 Section 14.03.
	 	 Limitation on Liability of the Subsidiary Guarantors
	 	50
	 Section 14.04.
	 	 Release of Subsidiary Guarantors from Guarantee
	 	50
	 Section 14.05.
	 	 Contribution
	 	51




 

 Notation
of Guarantee                Annex A 


v













































 





        THIS INDENTURE dated as of                    is among Cloud Peak Energy Inc., a Delaware
corporation (the "Company"), the Subsidiary Guarantors party hereto and
[                    ], a [national banking association], as trustee (the "Trustee"). 


 
 

RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS    



        The
Company and the Subsidiary Guarantors have duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of
the Company's debentures, notes, bonds or other evidences of indebtedness to be issued in one or more series unlimited as to principal amount (herein called the "Debt Securities"), and the guarantee
by each of the Subsidiary Guarantors of the Debt Securities, any of which series of Debt Securities and related Guarantees may be subordinated, all as in this Indenture provided. 



        The
Company and the Subsidiary Guarantors are members of the same consolidated group of companies. The Subsidiary Guarantors will derive direct and indirect economic benefit from the
issuance of the Debt Securities. Accordingly, each Subsidiary Guarantor has duly authorized the execution and delivery of this Indenture to provide for its full, unconditional and joint and several
guarantee of the Debt Securities to the extent provided in or pursuant to this Indenture. 


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



NOW,
THEREFORE, THIS INDENTURE WITNESSETH 




        That
in order to declare the terms and conditions upon which the Debt Securities are authenticated, issued and delivered, and in consideration of the premises, and of the purchase and
acceptance of the Debt Securities by the holders thereof, the Company, the Subsidiary Guarantors and the Trustee covenant and agree with each other, for the benefit of the respective Holders from time
to time of the Debt Securities or any series thereof, as follows: 


 
 

  ARTICLE I
  DEFINITIONS AND INCORPORATION BY REFERENCE    
    


        Section 1.01.    Definitions.    


        "Affiliate"
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For
the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. The Trustee may request and may conclusively rely
upon an Officers' Certificate to determine whether any Person is an Affiliate of any specified Person. 


        "Bankruptcy
Law" means Title 11, U.S. Code or any similar federal or state law for the relief of debtors. 


        "Board
of Directors" means the Board of Directors of the Company or any authorized committee of the Board of Directors of the Company or any directors and/or officers of the Company to
whom such Board of Directors or such committee shall have duly delegated its authority to act hereunder. 


        "Business
Day" means any day other than a Legal Holiday. 


        "capital
stock" of any Person means and includes any and all shares, rights to purchase, warrants or options (whether or not currently exercisable), participations or other equivalents
of or interests in (however designated) the equity (which includes, but is not limited to, common stock, preferred stock and partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity). 







 

        "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. 


        "Corporate
Trust Office of the Trustee" means the corporate trust office of the Trustee at which at any particular time its corporate trust business in
[                        ] shall be administered, which office at the date of execution of this Indenture is located at
[                        ].
 


        "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. 


        "Debt"
of any Person at any date means any obligation created or assumed by such Person for the repayment of borrowed money and any guarantee thereof. 


        "Debt
Security" or "Debt Securities" has the meaning stated in the first recital of this Indenture and more particularly means any debt security or debt securities, as the case may be,
of any series authenticated and delivered under this Indenture. 


        "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, unless otherwise specified by the Company pursuant to either Section 2.03 or 2.15, with respect to Debt Securities of any series issuable or issued in whole or
in part in the form of one or more Global Securities, The Depository Trust Company, New York, New York, or any successor thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations. 


        "Designated
Senior Indebtedness" means (i) any Senior Indebtedness which, at the date of determination, has an aggregate principal amount outstanding of, or under which, at the
date of determination, the holders thereof are committed to lend up to, at least $10 million and (ii) any other Senior Indebtedness designated, as provided in Section 2.03, in
respect of any series of Debt Securities. 


        "Dollar"
or "$" means such currency of the United States as at the time of payment is legal tender for the payment of public and private debts. 


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



        "Floating
Rate Security" means a Debt Security that provides for the payment of interest at a variable rate determined periodically by reference to an interest rate index specified
pursuant to Section 2.03. 


        "GAAP"
means generally accepted accounting principles in the United States, as in effect from time to time. 


        "Global
Security" means, with respect to any series of Debt Securities issued hereunder, a Debt Security which is executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in accordance with this Indenture, or resolution of the Board of Directors and set forth in an Officers' Certificate, which shall be
registered in the name of the Depositary or its nominee and which shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all the Outstanding Debt Securities
of such series or any portion thereof, in either case having the same terms, including, without limitation, the same original issue date, date or dates on which principal is due and interest rate or
method of determining interest. 


        "guarantee"
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and any obligation, direct
or indirect, 


2







 



contingent
or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided, however, that the term "guarantee" shall not include endorsements for collection or deposit in the ordinary course of business.
The term "guarantee" used as a verb has a corresponding meaning. 


        "Holder,"
"Holder of Debt Securities" or other similar terms means, a Person in whose name a Debt Security is registered in the Debt Security Register (as defined in
Section 2.07(a)). 


        "Indenture"
means this instrument as originally executed, or, if amended or supplemented as herein provided, as so amended or supplemented and shall include the form and terms of
particular series of Debt Securities as contemplated hereunder, whether or not a supplemental Indenture is entered into with respect thereto. 


        "Issuer
Request," when used with respect to any series of Debt Securities, means a written request or order signed in the name of the Company by the Chairman of the Board, the President
or a Vice President of the Company, and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. 


        "Legal
Holiday" means a Saturday, a Sunday or a day on which banking institutions in the City of New York, New York or at a Place of Payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period. 



        "Lien"
means, with respect to any asset, any mortgage, lien, security interest, pledge, charge or other encumbrance of any kind in respect of such asset, whether or not filed, recorded
or otherwise perfected under applicable law. 


        "Officer"
means, with respect to a Person, the Chief Executive Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer, Controller, Secretary, Assistant
Secretary or any Assistant Vice President of such Person. 


        "Officers'
Certificate," when used with respect to any series of Debt Securities, means a certificate signed by two Officers of the Company, one of whom must be the chief executive
officer, chief financial officer or chief accounting officer of the Company. 


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


        "Original
Issue Discount Debt Security" means any Debt Security which 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 6.01. 



        "Outstanding,"
when used with respect to any series of Debt Securities, means, as of the date of determination, all Debt Securities of that series theretofore authenticated and delivered
under this Indenture, except: 



	(a)
	Debt
Securities of that series theretofore canceled by the Trustee or delivered to the Trustee for cancellation;



	(b)
	Debt
Securities of that series for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any paying
agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall 



3







 


act
as its own paying agent) for the Holders of such Debt Securities; provided, that, if such Debt Securities are to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and  



	(c)
	Debt
Securities of that series which have been paid pursuant to Section 2.09 or in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such Debt Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a protected purchaser in whose hands such Debt Securities are valid obligations of the Company; 




provided,
however, that in determining whether the Holders of the requisite principal amount of the Outstanding Debt Securities of any series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debt Securities owned by the Company or any other obligor upon the Debt Securities or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Debt Securities which a Trust Officer actually knows to be so owned shall be so disregarded. Debt Securities so owned which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Debt
Securities and that the pledgee is not the Company or any other obligor upon the Debt Securities or an Affiliate of the Company or of such other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Debt Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.01. 


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


        "Redemption
Date," when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. 


        "Representative"
means the trustee, agent or representative (if any) for an issue of Senior Indebtedness. 


        "SEC"
means the Securities and Exchange Commission. 


        "Senior
Indebtedness," unless otherwise provided with respect to the Debt Securities of a series as contemplated by Section 2.03, means (1) all Debt of the Company or any
of the Subsidiary Guarantors, whether currently outstanding or hereafter issued, unless, by the terms of the instrument creating or evidencing such Debt, it is provided that such Debt is subordinate
or not superior in right of payment to the Debt Securities, in the case of the Company, or a Guarantee, in the case of any of the Subsidiary Guarantors, or to other Debt which ranks equally in right
of payment with or is expressly subordinated to the Debt Securities, in the case of the Company, or a Guarantee, in the case of any of the Subsidiary Guarantors, and (2) any modifications,
refunding, deferrals, renewals, or extensions of any such Debt or securities, notes or any other evidence of Debt issued in exchange for such Debt; provided that in no event shall "Senior
Indebtedness" include (a) Debt of any of the Subsidiary Guarantors or the Company owed or owing to any of the others, (b) obligations to trade creditors, (c) any liability for
taxes owed or (d) Debt of any Subsidiary Guarantor in the event there is no series of Debt Securities Outstanding that is entitled to the benefits of a Guarantee by any Subsidiary Guarantor. 


4







 

        "Stated
Maturity" means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred). 


        "Subsidiary"
of any Person means: 



	(1)
	any
corporation, association or other business entity of which more than 50% of the total voting power of equity interests entitled, without regard to the
occurrence of any contingency, to vote in the election of directors, managers, trustees or equivalent Persons thereof is at the time of determination owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person or combination thereof; or



	(2)
	in
the case of a partnership, more than 50% of the partners' equity interests, considering all partners' equity interests as a single class, is at such time
of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or combination thereof. 




        "Subsidiary
Guarantors" means any Subsidiary of the Company that executes this Indenture, or a supplement thereto, for the purpose of providing a Guarantee of Debt Securities pursuant to
this Indenture. 


        "TIA"
means the Trust Indenture Act of 1939, as amended (15 U.S.C. §77aaa-77bbbb), as in effect on the date of this Indenture as originally executed and, to the
extent required by law, as amended. 


        "Trustee"
initially means [                    ] and any other Person or Persons appointed as such from time to time pursuant to Section 7.08, and, subject
to
the provisions of Article VII, includes its or their successors and assigns. If at any time there is more than one such Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to the Debt Securities of that series. 



        "Trust
Officer" means any officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters and every other person who customarily performs
functions similar to those performed by the persons who at the time shall be such officers or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with
the
particular subject and, in each case, who shall have direct responsibility for the administration of this Indenture. 


        "U.S.
Government Obligations" means direct obligations of the United States, obligations on which the payment of principal and interest is fully guaranteed by the United States or
obligations or guarantees for the payment of which the full faith and credit of the United States is pledged. 



        "Yield
to Maturity" means the yield to maturity, calculated at the time of issuance of a series of Debt Securities, or, if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice. 


5







 

        Section 1.02.    Other Definitions.    

 






 



					
	Term



 
	 	Defined in Section 	 
	 "Debt Security Register"
	 	 	2.07	 
	 "Defaulted Interest"
	 	 	2.17	 
	 "Event of Default"
	 	 	6.01	 
	 "Funding Guarantor"
	 	 	14.05	 
	 "Guarantees"
	 	 	14.01	 
	 "pay the Subordinated Debt Securities"
	 	 	12.03	 
	 "Place of Payment"
	 	 	2.03	 
	 "Registrar"
	 	 	2.07	 
	 "Subordinated Debt Securities"
	 	 	12.01	 
	 "Successor Issuer"
	 	 	10.01	 




 

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


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



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


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


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


        (c)   "or"
is not exclusive; 



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


        (e)   "including"
means including without limitation; 


        (f)    if
the applicable series of Debt Securities is subordinated pursuant to Article XII, unsecured Debt shall not be deemed to be subordinate or junior to secured
Debt merely by virtue of its nature as unsecured Debt; and 


        (g)   the
principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of
the issuer dated such date prepared in accordance with GAAP. 


 
 

  ARTICLE II
  DEBT SECURITIES    
    


        Section 2.01.    Forms Generally.    The Debt Securities of each series shall be in substantially the form
established without the approval of any Holder by or pursuant to a resolution of the Board of Directors or in one or more Indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as the Company may deem appropriate (and, if not contained in a supplemental Indenture entered into in accordance with Article IX, as are not prohibited by the provisions of this
Indenture) or as may be required or appropriate to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange on which such series of Debt Securities may
be listed, or to conform to general usage, or as may, consistently herewith, be determined by the officers executing such Debt Securities as evidenced by their execution of the Debt Securities. 


6









 



































 





        The definitive Debt 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 Debt Securities, as evidenced by their execution of such Debt Securities. 


        Section 2.02.    Form of Trustee's Certificate of Authentication.    The Trustee's certificate of
authentication on all Debt Securities authenticated by the Trustee shall be in substantially the following form: 


 
 

TRUSTEE'S CERTIFICATE OF AUTHENTICATION    



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

 






 



					
	 	 	[                    ],
 As Trustee
	

 	
 	
By:	
 	
  






 Authorized Signatory




 

         Section 2.03.    Principal Amount; Issuable in Series.    The aggregate principal amount of Debt Securities
which may be issued, executed, authenticated, delivered and outstanding under this Indenture is unlimited. 


        The
Debt Securities may be issued in one or more series in fully registered form. There shall be established, without the approval of any Holders, in or pursuant to a resolution of the
Board of Directors and set forth in an Officers' Certificate, or established in one or more Indentures supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the
following: 


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


        (b)   any
limit upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this Indenture (except for Debt
Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of the series pursuant to this Article II); 



        (c)   the
date or dates on which the principal and premium, if any, of the Debt Securities of the series are payable; 


        (d)   the
rate or rates (which may be fixed or variable) at which the Debt Securities of the series shall bear interest, if any, or the method of determining such rate or
rates, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable, or the method by which such date will be determined, the record
dates for the determination of Holders thereof to whom such interest is payable; and the basis upon which interest will be calculated if other than that of a 360-day year of twelve
thirty-day months; 


        (e)   the
place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee, where the principal of, and premium, if any, and interest on, Debt
Securities of the series shall be payable ("Place of Payment"); 


        (f)    the
price or prices at which, the period or periods within which and the terms and conditions upon which Debt Securities of the series may be redeemed, in whole or in
part, at the option of the Company or otherwise; 


7







 

        (g)   whether
the Debt Securities are entitled to the benefits of any Guarantee of any Subsidiary Guarantors pursuant to this Indenture; 


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


        (i)    the
terms, if any, upon which the Debt Securities of the series may be convertible into or exchanged for capital stock (which may be represented by depositary shares),
other Debt Securities or warrants for capital stock or Debt or other securities of any kind of the Company or any other obligor and the terms and conditions upon which such conversion or exchange
shall be effected, including the initial conversion or exchange price or rate, the conversion or exchange period and any other provision in addition to or in lieu of those described herein; 



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


        (k)   if
the amount of principal of or any premium or interest on Debt Securities of the series may be determined with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined; 


        (l)    if
the principal amount payable at the Stated Maturity of Debt Securities of the series will not be determinable as of any one or more dates prior to such Stated
Maturity, the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other
than the Stated Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined); 


        (m)  any
additional covenants pertaining to the Debt Securities of the series and any changes or additions to Article XI, including the addition of additional
covenants that may be subject to the covenant defeasance option pursuant to Section 11.02(b); 



        (n)   if
other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02; 


        (o)   the
terms, if any, of the transfer, mortgage, pledge or assignment as security for the Debt Securities of the series of any properties, assets, moneys, proceeds,
securities or other collateral, including whether certain provisions of the TIA are applicable and any corresponding changes to provisions of this Indenture as currently in effect; 



        (p)   any
addition to or change in the Events of Default with respect to the Debt Securities of the series and any change in the right of the Trustee or the Holders to declare
the principal of, and premium, if any, and interest on, such Debt Securities due and payable; 


        (q)   if
the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities, the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole or in part for other individual Debt Securities in definitive registered form; and the Depositary for such Global Security or Securities
and the form of any legend or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legend referred to in Section 2.15(a); 


        (r)   any
trustees, authenticating or paying agents, transfer agents or registrars; 


8







 

        (s)   the
applicability of, and any addition to or change in the covenants and definitions currently set forth in this Indenture or in the terms currently set forth in
Article X, including conditioning any merger, conveyance, transfer or lease permitted by Article X upon the satisfaction of any Debt coverage standard by the Company and Successor Issuer
(as defined in Article X); 


        (t)    with
regard to Debt Securities of the series that do not bear interest, the dates for certain required reports to the Trustee; 


        (u)   if
other than Dollars, the coin or currency or currencies or units of two or more currencies in which payment of the principal of and premium, if any, and interest on,
Debt Securities of the series shall be payable; 


        (v)   the
subordination, if any, of the Debt Securities of the series pursuant to Article XII and any changes or additions to Article XII or designation of any
Designated Senior Indebtedness; 


        (w)  applicable
CUSIP numbers; and 


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


        All
Debt Securities of any one series appertaining thereto shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors and as set forth in such Officers' Certificate or in any such Indenture supplemental hereto. 


        Section 2.04.    Execution of Debt Securities.    The Debt Securities shall be signed on behalf of the Company
by the Chief Executive Officer, the President or a Vice President of the Company and, if the seal of the Company is reproduced thereon, it shall be attested by its Secretary, an Assistant Secretary, a
Treasurer or an Assistant Treasurer. Such signatures upon the Debt Securities may be the manual or facsimile signatures of the present or any future such authorized officers and may be imprinted or
otherwise reproduced on the Debt Securities. The seal of the Company, if any, may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Debt
Securities. 


        Only
such Debt Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, signed manually by the Trustee, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Debt Security executed by the Company shall be conclusive evidence that the Debt Security
so authenticated has been duly authenticated and delivered hereunder. 


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



        Section 2.05.    Authentication and Delivery of Debt Securities.    At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Debt Securities of any series executed by the Company to the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Debt Securities to or upon an Issuer Request. In authenticating such Debt Securities, and accepting the additional responsibilities under this Indenture in relation to such Debt 


9







 



Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon: 


        (a)   a
copy of any resolution or resolutions of the Board of Directors, certified by the Secretary or Assistant Secretary of the Company, authorizing the terms of issuance of
any series of Debt Securities; 


        (b)   an
executed supplemental Indenture, if any; 



        (c)   an
Officers' Certificate; and 


        (d)   an
Opinion of Counsel prepared in accordance with Section 13.05 substantially to the effect that: 



          (i)  that
the form of such Debt Securities has been established by or pursuant to a resolution of the Board of Directors or by a supplemental Indenture as permitted by
Section 2.01 in conformity with the provisions of this Indenture; 


         (ii)  that
the terms of such Debt Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental Indenture as permitted by
Section 2.03 in conformity with the provisions of this Indenture; and 


        (iii)  that
such Debt 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 legally binding obligations of the Company, enforceable in accordance with their
terms except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of general applicability. 




        Such
Opinion of Counsel need express no opinion as to whether a court in the United States would render a money judgment in a currency other than Dollars. 


        The
Trustee shall have the right to decline to authenticate and deliver any Debt Securities under this Section 2.05 if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors, trustees or vice presidents (or any
combination thereof) shall determine that such action would expose the Trustee to personal liability to existing Holders. 



        The
Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate Debt Securities of any series. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Debt 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 any Registrar, paying agent or agent for service of notices and demands. 


        Unless
otherwise provided in the form of Debt Security for any series, each Debt Security shall be dated the date of its authentication. 



        Section 2.06.    Denomination of Debt Securities.    Unless otherwise provided in the form of Debt Security for
any series, the Debt Securities of each series shall be issuable only as fully registered Debt Securities in such Dollar denominations as shall be specified or contemplated by Section 2.03. In
the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any integral multiple
thereof. 


        Section 2.07.    Registration of Transfer and Exchange.    



        (a)   The
Company shall keep or cause to be kept a register for each series of Debt Securities issued hereunder (hereinafter collectively referred to as the "Debt Security
Register"), in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of all 


10







 



Debt
Securities and the transfer of Debt Securities as in this Article II provided. At all reasonable times the Debt Security Register shall be open for inspection by the Trustee. Subject to
Section 2.15, upon due presentment for registration of transfer of any Debt Security at any office or agency to be maintained by the Company in accordance with the provisions of
Section 4.02, the Company shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Debt Security or Debt Securities of authorized
denominations for a like aggregate principal amount. In no event may Debt Securities be issued as, or exchanged for, bearer securities. 


        Unless
and until otherwise determined by the Company, the register of the Company for the purpose of registration, exchange or registration of transfer of the Debt Securities shall be
kept at the Corporate Trust Office of the Trustee, and, for this purpose, the Trustee shall be designated "Registrar." 



        Debt
Securities of any series (other than a Global Security) may be exchanged for a like aggregate principal amount of Debt Securities of the same series of other authorized
denominations. Subject to Section 2.15, Debt Securities to be exchanged shall be surrendered at the office or agency to be maintained by the Company as provided in Section 4.02, and the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor the Debt Security or Debt Securities which the Holder making the exchange shall be entitled to receive. 


        (b)   All
Debt Securities presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be
duly endorsed or be accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder or its attorney duly
authorized in writing. 


        All
Debt Securities issued in exchange for or upon transfer of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture as the Debt Securities surrendered for such exchange or transfer. 


        No
service charge shall be made for any exchange or registration of transfer of Debt Securities (except as provided by Section 2.09), but the Company may require payment of a sum
sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in relation thereto, other than those expressly provided in this Indenture to be made at the Company's own
expense or without expense or without charge to the Holders. 


        The
Company shall not be required (a) to issue, register the transfer of or exchange any Debt Securities of a series either (i) during a period beginning 15 days
next preceding any selection for redemption of Debt Securities of such series and ending on the close of business on the day of giving the relevant notice of redemption or (ii) between a record
date and the next succeeding interest payment date, or (b) to register the transfer of or exchange any Debt Security called for redemption (except, in the case of Debt Securities to be redeemed
in part, the portion not to be redeemed). 


        Specific
procedures for registration of transfer and exchange of any series of Debt Securities may be set forth in the applicable supplemental Indenture for such Debt Securities. 


        Section 2.08.    Temporary Debt Securities.    Pending the preparation of definitive Debt Securities of any
series, the Company may execute and the Trustee shall authenticate and deliver temporary Debt Securities (printed, lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in lieu of which they are issued, in registered form with such omissions, insertions and variations as may be appropriate
for temporary Debt Securities, all as may be determined by the Company with the concurrence of the Trustee. Temporary Debt Securities may contain such reference to any provisions of this Indenture as
may be appropriate. Every temporary Debt Security shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debt Securities. 


11







 

        If
temporary Debt Securities of any series are issued, the Company will cause definitive Debt Securities of such series to be prepared without unreasonable delay. After the preparation
of definitive Debt Securities of such series, the temporary Debt Securities of such series shall be exchangeable for definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company at a Place of Payment for such series, without charge to the Holder thereof, except as provided in Section 2.07 in connection
with a transfer. Upon surrender for cancellation of any one or more temporary Debt Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same series of authorized denominations and of like tenor. Until so exchanged, temporary Debt Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of such series, except as otherwise specified as contemplated by Section 2.03(q) with respect to
the payment of interest on Global Securities in temporary form. 


        Upon
any exchange of a portion of a temporary Global Security for a definitive Global Security or for the individual Debt Securities represented thereby pursuant to Section 2.07
or this Section 2.08, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal
amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed. 



        Section 2.09.    Mutilated, Destroyed, Lost or Stolen Debt Securities.    If (a) any mutilated Debt
Security is surrendered to the Trustee at its Corporate Trust Office or (b) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them and any paying agent harmless, and neither the Company nor
the Trustee receives written notice that such Debt Security has been acquired by a protected purchaser, then the Company shall execute and, upon an Issuer Request, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of the same series of like tenor, form, terms and principal amount, bearing a
number not contemporaneously Outstanding. Upon the issuance of any substituted Debt Security, the Company may require the payment of a sum sufficient to cover any tax, fee, assessment or other
governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Debt which has matured or is about to mature or which has been called for redemption
shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Debt Security, pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Debt Security) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as either may require to save it harmless from all
risk, however remote, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof. 


        Every
substituted Debt Security of any series issued pursuant to the provisions of this Section 2.09 by virtue of the fact that any Debt Security is destroyed, lost or stolen
shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security shall be found at any time, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Debt Securities of that series duly issued hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their
surrender. 


        Section 2.10.    Cancellation of Surrendered Debt Securities.    All Debt Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to the Company or any paying agent or a Registrar, be delivered to the Trustee for cancellation by it, or if surrendered to the 


12







 



Trustee,
shall be canceled by it, and no Debt Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. All canceled Debt Securities held by
the Trustee shall be disposed of by the Trustee in its customary manner. On request of the Company, the Trustee shall deliver to the Company canceled Debt Securities held by the Trustee. If the
Company shall acquire any of the Debt Securities, however, such acquisition shall not operate as a redemption or satisfaction of the Debt represented thereby unless and until the same are delivered or
surrendered to
the Trustee for cancellation. The Company may not issue new Debt Securities to replace Debt Securities that have been redeemed, paid or delivered to the Trustee for cancellation. 


        Section 2.11.    Provisions of this Indenture and Debt Securities for the Sole Benefit of the Parties and the
Holders.    Subject to the provisions of Article XII hereof in the case of any Subordinated Debt Securities, nothing in this Indenture or in the Debt
Securities, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto, the Holders or any Registrar or paying agent, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained, all its covenants, conditions and provisions being for the sole benefit of the parties
hereto, the Holders and any Registrar and paying agents. 


        Section 2.12.    Payment of Interest; Interest Rights Preserved.    


        (a)   Interest
on any Debt Security that is payable and is punctually paid or duly provided for on any interest payment date shall be paid to the Person in whose name such
Debt Security is registered at the close of business on the regular record date for such interest notwithstanding the cancellation of such Debt Security upon any transfer or exchange subsequent to the
regular record date. Payment of interest on Debt Securities shall be made at the Corporate Trust Office of the Trustee (except as otherwise specified pursuant to Section 2.03), or at the option
of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Debt Security Register or, if provided pursuant to Section 2.03 and in
accordance with arrangements satisfactory to the Trustee, at the option of the Holder by wire transfer to an account designated by the Holder. 


        (b)   Subject
to the foregoing provisions of this Section 2.12 and Section 2.17, each Debt Security of a particular series delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Debt Security of the same series shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security. 


        Section 2.13.    Securities Denominated in Dollars.    Except as otherwise specified pursuant to
Section 2.03 for Debt Securities of any series, payment of the principal of, and premium, if any, and interest on, Debt Securities of such series will be made in Dollars. 


        Section 2.14.    Wire Transfers.    Notwithstanding any other provision to the contrary in this Indenture, the
Company (or any other obligor on a particular series of Debt Securities) may make any payment of moneys required to be deposited with the Trustee on account of principal of, or premium, if any, or
interest on, the Debt Securities (whether pursuant to optional or mandatory redemption payments, interest payments or otherwise) by wire transfer of immediately available funds to an account
designated by the Trustee before 11:00 a.m., New York City time, on the date such moneys are to be paid to the Holders of the Debt Securities in accordance with the terms hereof. 


        Section 2.15.    Securities Issuable in the Form of a Global Security.    



        (a)   If
the Company shall establish pursuant to Sections 2.01 and 2.03 that the Debt Securities of a particular series are to be issued in whole or in part in the form
of one or more Global Securities, then the Company shall execute and the Trustee or its agent shall, in accordance with Section 2.05, authenticate and deliver, such Global Security or
Securities, which shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in an Officers' Certificate, shall be registered in the name of the Depositary for 


13







 



such
Global Security or Securities or its nominee, shall be delivered by the Trustee or its agent to the Depositary or pursuant to the Depositary's instruction and shall bear a legend substantially to
the following effect: 



        "UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 


        TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN," 




or
such other legend as may then be required by the Depositary for such Global Security or Securities. 



        (b)   Notwithstanding
any other provision of this Section 2.15 or of Section 2.07 to the contrary, and subject to the provisions of clause (c) below,
unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for definitive Debt Securities in registered form, a Global Security may be transferred,
in whole but not in part and in the manner provided in Section 2.07, only by the Depositary to a nominee of the Depositary for such Global Security, or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, or by the Depositary or a nominee of the Depositary to a successor Depositary for such Global Security selected or approved by the Company, or to a
nominee of such successor Depositary. 


        (c)   (i)    If
at any time the Depositary for a Global Security or Securities notifies the Company that it is unwilling or unable to continue as Depositary for such
Global Security or Securities or if at any time the Depositary for the Debt Securities for such series shall no longer be eligible or in good standing under the Exchange Act or other applicable
statute, rule or regulation, the Company shall appoint a successor Depositary with respect to such Global Security or Securities. If a successor Depositary for such Global Security or Securities is
not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company shall execute, and the Trustee or its agent, upon receipt
of an Issuer Request for the authentication and delivery of such individual Debt Securities of such series in exchange for such Global Security, will authenticate and deliver, individual Debt
Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security or
Securities. 



         (ii)  The
Company may at any time and in its sole discretion determine, subject to the Depositary's rules, that the Debt Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of an
Issuer Request for the authentication and delivery of individual Debt Securities of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual Debt
Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such series or portion thereof in exchange for such Global
Security or Securities. 



14









 









































        (iii)  If
specified by the Company pursuant to Sections 2.01 and 2.03 with respect to Debt Securities issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for individual Debt Securities of such series of like tenor and terms in definitive form on such
terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon the Company shall execute, and the Trustee or its agent upon receipt of an Issuer Request for the authentication and
delivery of definitive Debt Securities of such series shall authenticate and deliver, without service charge, to each Person specified by such Depositary a new Debt Security or Securities of the same
series of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global
Security; and to such Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Debt Securities delivered to Holders thereof, unless such Global Security is endorsed by the Trustee or other custodian to reflect a reduction of such
aggregate principal amount, in which case no new Global Security need to be authenticated and delivered. 


        (iv)  In
any exchange provided for in any of the preceding three subclauses, the Company will execute and the Trustee or its agent will authenticate and deliver individual
Debt Securities. Upon the exchange of the entire principal amount of a Global Security for individual Debt Securities, such Global Security shall be canceled by the Trustee or its agent. Debt
Securities issued in exchange for a Global Security pursuant to this Section 2.15 shall be registered in such names and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or the Registrar in accordance with its applicable procedures. The Trustee or the
Registrar shall deliver such Debt Securities to the Persons in whose names such Debt Securities are so registered. 


         (v)  Payments
in respect of the principal of, premium, if any, and interest on any Debt Securities registered in the name of the Depositary or its nominee will be payable to
the Depositary or such nominee in its capacity as the registered owner of such Global Security. None of the Company, the Subsidiary Guarantors, the Trustee, any Registrar, the paying agent or any
agent of any of them will have any responsibility or liability for (a) any aspect of the records relating to or payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or
any of the Depositary's direct or indirect participants, or for maintaining, supervising or reviewing any records of the Depositary, its nominee or any of the Depositary's direct or indirect
participants relating to the beneficial ownership interests of the Global Security, (b) the payments to the beneficial owners of the Global Security of amounts paid to the Depositary or its
nominee, or (c) any other matter relating to the actions and practices of the Depositary, its nominee or any of the Depositary's direct or indirect participants. None of the Company, the
Subsidiary Guarantors, the Trustee or any such agent will be liable for any delay by the Depositary, its nominee, or any of its direct or indirect participants in identifying the beneficial owners of
the Debt Securities, and the Company, the Subsidiary Guarantors and the Trustee may conclusively rely on, and will be protected in relying on, instructions from the Depositary or its nominee for all
purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Debt Securities to be issued). 




        Section 2.16.    Medium Term Securities.    Notwithstanding any contrary provision herein, if all Debt
Securities of a series are not to be originally issued at one time, it shall not be necessary for the Company to deliver to the Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental Indenture, Opinion of Counsel or written order or any other document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or prior to the time of authentication of
each Debt Security of such series if such documents are delivered to the Trustee or its agent at or prior to 


15







 

the
authentication upon original issuance of the first such Debt Security of such series to be issued; provided, that any subsequent request by the Company to the Trustee to authenticate Debt
Securities of such series upon original issuance shall be in writing and shall constitute a representation and warranty by the Company that, as of the date of such request, the statements made in the
Officers' Certificate delivered pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such date and that the Opinion of Counsel delivered at or prior to such time of
authentication of an original issuance of Debt Securities shall specifically state that it shall relate to all subsequent issuances of Debt Securities of such series that are identical to the Debt
Securities issued in the first issuance of Debt Securities of such series. 


        An
Issuer Request delivered by the Company to the Trustee in the circumstances set forth in the preceding paragraph, may provide that Debt Securities which are the subject thereof will
be authenticated and delivered by the Trustee or its agent on original issue from time to time upon the written order of Persons designated in such written order and that such Persons are authorized
to determine, consistent with the Officers' Certificate, supplemental Indenture or resolution of the Board of Directors relating to such written order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental Indenture or such resolution. 


        Section 2.17.    Defaulted Interest.    Any interest on any Debt Security of a particular series which is
payable, but is not punctually paid or duly provided for, on the dates and in the manner provided in the Debt Securities of such series and in this Indenture (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder thereof on the relevant record date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or (ii) below: 



          (i)  The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Debt Securities of such series are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debt Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage pre-paid, to each Holder thereof at its address as it appears in the
Debt Security Register, not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the Debt Securities of such series are registered at the close of business on such special record date. 


         (ii)  The
Company may make payment of any Defaulted Interest on the Debt Securities of such series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debt Securities of such series may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. 



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        Section 2.18.    CUSIP Numbers.    The Company in issuing the Debt Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Debt Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed
on the Debt Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the "CUSIP"
numbers. 


 
 

  ARTICLE III
  REDEMPTION OF DEBT SECURITIES    
    



        Section 3.01.    Applicability of Article.    The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their Stated Maturity except as otherwise specified as contemplated by Section 2.03 for Debt Securities of such series. 


        Section 3.02.    Notice of Redemption; Selection of Debt Securities.    In case the Company shall desire to
exercise the right to redeem all or, as the case may be, any part of the Debt Securities of any series in accordance with their terms, by resolution of the Board of Directors or a supplemental
Indenture, the Company shall fix a date for redemption and shall give notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the Holders of
Debt Securities of such series so to be redeemed as a whole or in part, in the manner provided in Section 13.03. The notice if given in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Debt Security of a series designated
for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security of such series. 


        Each
such notice of redemption shall specify the Redemption Date, the redemption price at which Debt Securities of such series are to be redeemed (or the method of calculating such
redemption price if it is not then determinable), the Place or Places of Payment that payment will be made upon presentation and surrender of such Debt Securities, that any interest accrued to the
Redemption Date will be paid, unless the Company defaults in making such redemption payment, as specified in said notice, that the redemption is for a sinking fund payment (if applicable), that,
unless the Company defaults in making such redemption payment or if the Debt Securities of that series are subordinated pursuant to the terms of Article XII the paying agent is prohibited from
making such payment pursuant to the terms of this Indenture, on and after the Redemption Date any interest thereon or on the portions thereof to be redeemed will cease to accrue, that in the case of
Original Issue Discount Securities original issue discount accrued after the Redemption Date will cease to accrue, the terms of the Debt Securities of that series pursuant to which the Debt Securities
of that series are being redeemed and that no representation is made as to the correctness of the CUSIP number, if any, listed in such notice or printed on the Debt Securities of that series. If less
than all the Debt Securities of a series are to be redeemed the notice of redemption shall specify the certificate numbers of the Debt Securities of that series to be redeemed, unless such Debt
Securities are in global form. In case any Debt Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and
shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a new Debt Security or Debt Securities of that series will be issued in principal amount equal to the
unredeemed portion thereof. 


        At
least five Business Days before the giving of any notice of redemption, unless the Trustee consents to a shorter period, the Company shall give written notice to the Trustee of the
Redemption Date, the principal amount of Debt Securities to be redeemed and the series of the Debt Securities pursuant to which such redemption will occur. Such notice shall be accompanied by an
Officers' 


17







 



Certificate
and an Opinion of Counsel from the Company to the effect that such redemption will comply with the conditions herein. 



        By
11 a.m., New York City time, on the Redemption Date for any Debt Securities, the Company (or any other obligor on such Debt Securities) shall deposit with the Trustee or with a
paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust) an amount of money in Dollars (except as provided pursuant to Section 2.03) sufficient to pay
the redemption price of such Debt Securities or any portions thereof that are to be redeemed on that date, together with any interest accrued to the Redemption Date. 


        If
less than all the Debt Securities of like tenor and terms of a series are to be redeemed, the Trustee shall select, on a pro rata
basis, by lot or by such other method as in its sole discretion it shall deem appropriate and fair, the Debt Securities of that series or portions thereof (in multiples of $1,000) to be redeemed;
provided, however, that if at such time such Debt Securities are represented by a Global Security, the Trustee shall have no responsibility for determining the principal amount of such Debt Securities
that are to be redeemed, it being understood that such determination shall be made by the Depositary in accordance with its applicable procedures. In any case where more than one Debt Security of such
series is registered in the same name, the Trustee may treat the aggregate principal amount so registered as if it were represented by one Debt Security of such series. The Trustee shall promptly
notify the Company in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial redemption, the principal amount thereof to be redeemed. If
any Debt Security called for redemption shall not be so paid upon surrender thereof on such Redemption Date, the principal, premium, if any, and interest shall bear interest until paid from the
Redemption Date at the rate borne by the Debt Securities of that series. If less than all the Debt Securities of unlike tenor and terms of a series are to be redeemed, the particular Debt Securities
to be redeemed shall be selected by the Company. Provisions of this Indenture that apply to Debt Securities called for redemption also apply to portions of Debt Securities called for redemption. 


        Section 3.03.    Payment of Debt Securities Called for Redemption.    If notice of redemption has been given as
provided in Section 3.02, the Debt Securities or portions of Debt Securities of the series with respect to which such notice has been given shall become due and payable on the date and at the
Place or Places of Payment stated in such notice at the applicable redemption price, together with any interest accrued to the date fixed for redemption, and on and after said date (unless the Company
(or any other obligor on such Debt Securities) shall default in the payment of such Debt Securities at the applicable redemption price, together with any interest accrued to said date) any interest on
the Debt Securities or portions of Debt Securities of any series so called for redemption shall cease to accrue, and any original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the Place or Places of Payment in said notice specified, the said Debt Securities or the specified portions thereof shall be
paid and redeemed at the
applicable redemption price, together with any interest accrued thereon to the date fixed for redemption. 


        Any
Debt Security that is to be redeemed only in part shall be surrendered at a Place of Payment specified in the notice given pursuant to Section 3.02 with, if the Company, the
Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by, the Holder thereof or
its attorney duly authorized in writing, and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge, a new Debt Security
or Debt Securities of the same series, of like tenor and form, 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 Debt Security so surrendered; except that if a Global Security is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the
Depositary for such Global Security, without service charge, a new Global Security in a denomination equal to and in exchange for the 


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unredeemed
portion of the principal of the Global Security so surrendered. In the case of a Global Security providing appropriate space for such notation, the Trustee or a custodian, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a notation on such Global Security of the payment of the redeemed portion thereof. 


        Section 3.04.    Mandatory and Optional Sinking Funds.    The minimum amount of any sinking fund payment
provided for by the terms of Debt Securities of any series, resolution of the Board of Directors or a supplemental Indenture 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 Debt Securities of any series, resolution of the Board of Directors or a supplemental Indenture is herein referred to as an
"optional sinking fund payment." 


        In
lieu of making all or any part of any mandatory sinking fund payment with respect to any Debt Securities of a series in cash, the Company may at its option (a) deliver to the
Trustee Debt Securities of that series theretofore purchased or otherwise acquired by the Company or (b) receive credit for the principal amount of Debt Securities of that series which have
been redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such
Debt Securities, resolution or supplemental Indenture; provided, that such Debt Securities have not been previously so credited. Such Debt Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Debt Securities, resolution or supplemental Indenture for redemption through operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly. 


        Section 3.05.    Redemption of Debt Securities for Sinking Fund.    Not less than 60 days prior to each
sinking fund payment date for any series of Debt Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that
series
pursuant to the terms of that series, any resolution or supplemental Indenture, 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 delivering and crediting Debt Securities of that series pursuant to this Section 3.05 (which Debt Securities, if not previously redeemed, will accompany such certificate) and
whether the Company intends to exercise its right to make any permitted optional sinking fund payment with respect to such series. Such certificate shall also state that no Event of Default has
occurred and is continuing with respect to such series. Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred
to, if any, by 11 a.m., New York City time, on the next succeeding sinking fund payment date. Failure of the Company to deliver such certificate (or to deliver the Debt Securities specified in
this paragraph) shall not constitute a Default, but such failure shall require that the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely
in cash and shall be sufficient to redeem the principal amount of such Debt Securities subject to a mandatory sinking fund payment without the option to deliver or credit Debt Securities as provided
in this Section 3.05 and without the right to make any optional sinking fund payment, if any, with respect to such series. 


        Any
sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000
(or a lesser sum if the Company shall so request) with respect to the Debt Securities of any particular series shall be applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such Debt Securities at the redemption
price specified in such Debt Securities, resolution or supplemental Indenture for operation of the sinking fund together with any accrued interest to the date fixed for redemption. Any sinking fund
moneys not so applied or allocated by the Trustee to the redemption of Debt Securities shall be added to the next cash sinking fund payment received by the Trustee for such series and, together with
such payment, 


19







 



shall
be applied in accordance with the provisions of this Section 3.05. Any and all sinking fund moneys with respect to the Debt Securities of any particular series held by the Trustee on the
last sinking fund payment date with respect to Debt Securities of such series and not held for the payment or redemption of particular Debt Securities shall be applied by the Trustee, together with
other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Debt Securities of that series at its Stated Maturity. 


        The
Trustee shall select the Debt Securities to be redeemed upon such sinking fund payment date in the manner specified in the last paragraph of Section 3.02, and the Company
shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02, except that the notice of redemption shall also state that the Debt Securities are being
redeemed by operation of the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in Section 3.03. 


        The
Trustee shall not redeem any Debt Securities of a series with sinking fund moneys or mail any notice of redemption of such Debt Securities by operation of the sinking fund for such
series during the continuance of a Default in payment of interest on such Debt Securities or of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph) with respect to such Debt Securities, except that if the notice of redemption of any such Debt Securities shall
theretofore have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the Trustee for that
purpose in accordance with the terms of this Article III. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or Event of Default shall occur
and any moneys thereafter paid into such sinking fund shall, during the continuance of such Default or Event of Default, be held as security for the payment of such Debt Securities; provided, however,
that in case such Default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Debt Securities
on which such moneys may be applied pursuant to the provisions of this Section 3.05. 


 
 

  ARTICLE IV
  PARTICULAR COVENANTS OF THE COMPANY    
    


        Section 4.01.    Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities.    The
Company, for the benefit of each series of Debt Securities, will duly and punctually pay or cause to be paid the principal of, and premium, if any, and interest on, each of the Debt Securities at the
place, at the respective times and in the manner provided herein or in the Debt Securities. Each installment of interest on any Debt Securities not in global form may at the Company's option be paid
by mailing checks for such interest payable to the Person entitled thereto to the address of such Person as it appears on the Debt Security Register. 


        Principal,
premium, if any, and interest in respect of Debt Securities of any series shall be considered paid on the date due if, by 11 a.m., New York City time, on such date the
Trustee or any paying agent holds in accordance with this Indenture money sufficient to pay all principal, premium and interest then due and, in the case of Debt Securities subordinated pursuant to
the terms of Article XII, the Trustee or such paying agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture. 



        The
Company shall pay interest on overdue principal or premium, if any, at the rate specified therefor in the Debt Securities, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful. 


20









 



































 





        Section 4.02.    Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt
Securities.    The Company will maintain in each Place of Payment for any series of Debt Securities an office or agency where Debt Securities of such series may be
presented or surrendered for payment, and it shall also maintain in the United States (in or outside such Place of Payment) an office or agency where Debt Securities of such series may be surrendered
for transfer or exchange and where notices and demands to or upon the Company in respect of the Debt Securities of such series and this Indenture may be served. Initially, such office or agency shall
be the Corporate Trust Office of the Trustee, except that the office or agency where such notices and demands to or upon the Company may be served shall be the office of the Trustee indicated in
Section 13.03 hereof. The Company will give prompt written notice to the Trustee of any change in the location of any 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, and the Company hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands. 



        The
Company may also from time to time designate different or additional offices or agencies to be maintained for such purposes (in or outside such Place of Payment), and may from time
to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional designation or rescission of designation and any change in the location of any such different or additional office or
agency. 


        Section 4.03.    Appointment to Fill a Vacancy in the Office of Trustee.    The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.08, a Trustee, so that there shall at all times be a Trustee hereunder with respect to each
series of Debt Securities. 


        Section 4.04.    Duties of Paying Agents, etc.    The Company shall cause each paying agent, if any, other than
the Trustee, to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04, 



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


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


        (iii)  that
it will at any time during the continuance of an Event of Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held by it as
such agent. 




        (b)   If
the Company shall act as its own paying agent, it will, no later than 11 a.m., New York City time, on each due date of the principal of, and premium, if any,
or interest on, the Debt Securities of any series, set aside, segregate and hold in trust for the benefit of the Holders of the Debt Securities of such series a sum sufficient to pay such
principal, premium, if any, or interest so becoming due. The Company will promptly notify the Trustee of any failure by the Company to take such action or the failure by any other obligor on such Debt
Securities to make any payment of the principal of, and premium, if any, or interest on, such Debt Securities when the same shall be due and payable. 



        (c)   Anything
in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent, as required by this 


21







 



Section 4.04,
such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such paying agent. 



        (d)   Whenever
the Company shall have one or more paying agents with respect to any series of Debt Securities, it (or any other obligor on such Debt Securities) will, no later
than 11 a.m., New York City time, on each due date of the principal of, and premium, if any, or interest on, any Debt Securities of such series, deposit with any such paying agent a sum
sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless any such paying agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act. 



        (e)   Anything
in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04 is subject to the
provisions of Section 11.05. 


        Section 4.05.    SEC Reports; Financial Statements.    


        (a)   The
Company shall, so long as any of the Debt Securities are Outstanding, deliver to the Trustee, within 15 days after it files the same with the SEC, copies of
the annual reports and of the information, documents and other reports that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company is
not subject to the requirements of such Section 13 or 15(d), the Company shall deliver to the Trustee, within 15 days after it would have been required to file the same with the SEC,
financial statements, including any notes thereto (and with respect to annual financial statements, an auditors' report by a firm of established national reputation), and a "Management's Discussion
and Analysis of Financial Condition and Results of Operations," both comparable to that which the Company would have been required to include in such annual reports, information, documents or other
reports if the Company had been subject to the requirements of such Section 13 or 15(d). The Company (and each other obligor on any Outstanding Debt Securities) shall also comply with the
provisions of TIA Section 314(a). 


        (b)   The
availability of the foregoing information, documents or reports on the SEC's website or the Company's website shall be deemed to satisfy the foregoing delivery
obligations. 


        (c)   Delivery
of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee's receipt of such shall not constitute 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). 


        (d)   The
Company shall, so long as any of the Notes are Outstanding, deliver to the Trustee, within 30 days of any Officer of the Company becoming aware of the
occurrence of any Default or Event of Default, 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 4.06.    Compliance Certificate.    The Company shall, so long as any of the Debt Securities are
Outstanding, deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers' Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers of the Company with a view to determining whether each obligor on such Debt Securities has
kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his knowledge each obligor on
such Debt Securities 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, without regard to any grace period or requirement of notice required by this Indenture (or, if a Default or Event of Default has occurred and is continuing,
describing all such Defaults or Events of Default of which such Officer may have knowledge and what action the 


22







 



Company
is taking or proposes to take with respect thereto) and that to the best of his knowledge no event has occurred and remains in existence by reason of which payments on account of the principal
of, or premium, if any, or interest, if any, on the Debt Securities are prohibited or, if such event has occurred, a description of the event and what action the Company is taking or proposes to take
with respect thereto. 


        Section 4.07.    Further Instruments and Acts.    The Company will, upon request of the Trustee, execute and
deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectually the purposes of this Indenture. 


        Section 4.08.    Existence.    Except as permitted by Article X hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its existence and all rights (charter and statutory) of the Company, provided that the Company shall not be required to
preserve any such right or franchise, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company. 


        Section 4.09.    Maintenance of Properties.    The Company shall cause all material properties owned by the
Company or its Subsidiaries or used or held for use in the conduct of its business or the business of any such Subsidiary to be maintained and kept in good condition, repair and working order
(ordinary wear and tear excepted) and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the
judgment of the management of the Company may be necessary so that the business carried on in connection therewith may be properly conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the management of the Company, desirable in
the conduct of its business or the business of any such Subsidiary and not disadvantageous in any material respect to the Holders. 


        Section 4.10.    Payment of Taxes and Other Claims.    The Company shall pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Company or any of its Subsidiaries or upon the income,
profits or property of the Company or any of its Subsidiaries, if failure to pay or discharge the same could reasonably be expected to have a material adverse effect on the ability of the Company or
any other obligor on the Debt Securities of any series to perform its obligations hereunder and (ii) all lawful claims for labor, materials and supplies which, if unpaid, would by law become a
Lien upon the property of the Company or any of its Subsidiaries, except for any Lien permitted to be incurred under the terms of this Indenture, if failure to pay or discharge the same could
reasonably be expected to have a material adverse effect on the ability of the Company or any other obligor on the Debt Securities of any series to perform its obligations hereunder; provided,
however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings. 


        Section 4.11.    Waiver of Certain Covenants.    The Company or any Subsidiary Guarantor may, with respect to
the Debt Securities of any series, omit in any particular instance to comply with any covenant set forth in this Article IV (except Sections 4.01 through 4.08) or made applicable to such
Debt Securities pursuant to Section 2.03, if, before or after the time for such compliance, the Holders of a majority in principal amount of the Outstanding Debt Securities of each series
affected, waive such compliance in such instance with such covenant, but no such waiver shall extend to or affect such covenant except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the Subsidiary Guarantors and the duties of the Trustee in respect of any such covenant shall remain in full force and effect. 


23







 
 
 

  ARTICLE V
  HOLDERS' LISTS AND REPORTS BY THE TRUSTEE    
    


        Section 5.01.    Company to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of
Information.    The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Debt Securities of each series: 



        (a)   not
more than 10 days after each record date with respect to the payment of interest, if any, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such record date, and 


        (b)   at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and
contents as of a date not more than 15 days prior to the time such list is furnished; 


provided,
however, that so long as the Trustee shall be the Registrar, such lists shall not be required to be furnished. 



        The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders (i) contained in the most recent list
furnished to it as provided in this Section 5.01 or (ii) received by it in the capacity of paying agent or Registrar (if so acting) hereunder. 


        The
Trustee may destroy any list furnished to it as provided in this Section 5.01 upon receipt of a new list so furnished. 


        Section 5.02.    Communications to Holders.    Holders may communicate pursuant to Section 312(b) of the
TIA with other Holders with respect to their rights under this Indenture or the Debt Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the TIA. 


        Section 5.03.    Reports by Trustee.    Within 60 days after each January 31, beginning with the
first January 31 following the date of this Indenture, and in any event on or before April 1 in each year, the Trustee shall mail to Holders a brief report dated as of such
January 31 that complies with TIA Section 313(a); provided, however, that if no event described in TIA Section 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted. The Trustee also shall comply with TIA Section 313(b). 


        Reports
pursuant to this Section 5.03 shall be transmitted by mail: 


        (a)   to
all Holders, as the names and addresses of such Holders appear in the Debt Security Register; and 


        (b)   except
in the cases of reports under Section 313(b)(2) of the TIA, to each Holder of a Debt Security of any series whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section 5.01. 



        A
copy of each report at the time of its mailing to Holders shall be filed with the SEC and each stock exchange (if any) on which the Debt Securities of any series are listed. The
Company agrees to notify promptly the Trustee whenever the Debt Securities of any series become listed on any stock exchange and of any delisting thereof. 


24







 
 
 

  ARTICLE VI
  REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT    
    


        Section 6.01.    Events of Default.    If any one or more of the following shall have occurred and be
continuing with respect to Debt Securities of any series (each of the following, an "Event of Default"): 


        (a)   default
in the payment of any installment of interest upon any Debt Securities of that series as and when the same shall become due and payable, whether or not such
payment shall be prohibited by Article XII, if applicable, and continuance of such default for a period of 30 days; or 


        (b)   default
in the payment of the principal of or premium, if any, on any Debt Securities of that series as and when the same shall become due and payable, whether or not
such payment shall be prohibited by Article XII, if applicable, whether at Stated Maturity, upon redemption, by declaration, upon required repurchase or otherwise; or 



        (c)   default
in the payment of any sinking fund payment with respect to any Debt Securities of that series as and when the same shall become due and payable, whether or not
such payment shall be prohibited by Article XII, if applicable; or 


        (d)   failure
on the part of the Company, or if any series of Debt Securities Outstanding under this Indenture is entitled to the benefits of a Guarantee by the Subsidiary
Guarantors, any of the Subsidiary Guarantors, duly to observe or perform any other of the covenants or agreements on the part of the Company, or if applicable, any of the Subsidiary Guarantors, in the
Debt Securities of that series, in any resolution of the Board of Directors authorizing the issuance of that series of Debt Securities or in this Indenture with respect to such series (other than a
covenant a default in the performance of which is elsewhere in this Section specifically dealt with), continuing for a period of 60 days after the date on which written notice specifying such
failure and requiring the Company, or if applicable, the Subsidiary Guarantors, to remedy the same shall have been given, by registered or certified mail, to the Company, or if applicable, the
Subsidiary Guarantors, by the Trustee or to the Company, or if applicable, the Subsidiary Guarantors, and the Trustee by the Holders of at least 25% in aggregate principal amount of the Debt
Securities of that series at the time Outstanding; or 


        (e)   the
Company, or if any series of Debt Securities Outstanding under this Indenture is entitled to the benefits of a Guarantee by the Subsidiary Guarantors, any of the
Subsidiary Guarantors, pursuant to or within the meaning of any Bankruptcy Law, 



          (i)  commences
a voluntary case, 


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


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


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




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



          (i)  is
for relief against the Company, or if any series of Debt Securities Outstanding under this Indenture is entitled to the benefits of a Guarantee by the Subsidiary
Guarantors, any of the Subsidiary Guarantors, as debtor in an involuntary case, 



         (ii)  appoints
a Custodian of the Company, or if any series of Debt Securities Outstanding under this Indenture is entitled to the benefits of a Guarantee by the Subsidiary
Guarantors, any of the Subsidiary Guarantors, or a Custodian for all or substantially all of the property of the Company, or if applicable, any of the Subsidiary Guarantors, or 



25







 

        (iii)  orders
the liquidation of the Company, or if any series of Debt Securities Outstanding under this Indenture is entitled to the benefits of a Guarantee by the
Subsidiary Guarantors, any of the Subsidiary Guarantors, 




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


        (g)   if
any series of Debt Securities Outstanding under this Indenture is entitled to the benefits of a Guarantee by the Subsidiary Guarantors, any Guarantee of a Subsidiary
Guarantor ceases to be in full force and effect with respect to Debt Securities of that series (except as otherwise provided in this Indenture) or is declared null and void in a judicial proceeding or
any of the Subsidiary Guarantors (if applicable) denies or disaffirms its obligations under this Indenture or such Guarantee; or 


        (h)   any
other Event of Default provided with respect to Debt Securities of that series as contemplated by Section 2.03(p); 


then
and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (g), or (h) with respect to Debt Securities of that series at the time Outstanding occurs
and is continuing, unless the principal of, premium, if any, and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare
the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series), premium,
if any, and accrued and unpaid interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Debt Securities of that series contained to the contrary notwithstanding. If an Event of Default described in clause (e) or (f) occurs,
then and in each and every such case, unless the principal of and interest on all the Debt Securities shall have become due and payable, the principal of (or, if any Debt Securities are Original Issue
Discount Debt Securities, such portion of the principal amount as may be specified in the terms thereof), premium, if any, and accrued and unpaid interest on all the Debt Securities then Outstanding
hereunder shall ipso facto become and be immediately due and payable without any declaration of acceleration or other act on the part of the Trustee or
any Holders, anything in this Indenture or in the Debt Securities contained to the contrary notwithstanding. 


        The
Holders of a majority in aggregate principal amount of the Debt Securities of a particular series by written notice to the Trustee may rescind any declaration of acceleration and its
consequences if the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction already rendered and if all existing Events of Default have been cured or waived except nonpayment of
principal, premium, if any, or interest that has become due solely because of the declaration of acceleration. Upon any such rescission, the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of the parties hereto shall continue as though no such proceeding had been taken. 


        Section 6.02.    Collection of Debt by Trustee, etc.    If an Event of Default occurs and is continuing, the
Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid
or enforce the performance of any provision of the Debt Securities of the affected series or this Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other obligor upon the Debt Securities of such series (and collect in the manner provided by law out of the property of the Company
or any other obligor upon the Debt Securities of such series wherever situated the moneys adjudged or decreed to be payable). 


26







 

        In
case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor upon the Debt Securities of any series under any Bankruptcy
Law, or in case a Custodian shall have been appointed for its property, or in case of any other similar judicial proceedings relative to the Company or any other obligor upon the Debt Securities of
any series, its creditors or its property, the Trustee, irrespective of whether the principal of Debt Securities of any series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal, premium, if any, and interest (or, if the Debt Securities of such series are Original Issue Discount
Debt Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Debt Securities of such series, and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct) and of the Holders thereof allowed in any such
judicial proceedings relative to the Company or any other obligor upon the Debt Securities of such series, its creditors or its property, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of such Holders and of the Trustee on their behalf, and any receiver, assignee or trustee
in bankruptcy or reorganization is hereby authorized by each of such Holders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to
such Holders, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses and
liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or willful misconduct. 


        All
rights of action and of asserting claims under this Indenture, or under any of the Debt Securities of any series, may be enforced by the Trustee without the possession of any such
Debt Securities, or the production thereof in any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment (except for any amounts payable to the Trustee pursuant to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt
Securities in respect of which such action was taken. 


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


        Section 6.03.    Application of Moneys Collected by Trustee.    Any moneys or other property collected by the
Trustee pursuant to Section 6.02 with respect to Debt Securities of any series shall be applied, after giving effect to the provisions of Article XII, if applicable, in the order
following, at the date or dates fixed by the Trustee for the distribution of such moneys or other property, upon presentation of the several Debt Securities of such series in respect of which moneys
or other property has been collected, and the notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid: 



        FIRST:    To
the payment of all money due the Trustee pursuant to Section 7.06; 


        SECOND:    In
case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall not have become due, to the payment of interest on
the Debt 



27







 




Securities
of such series in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities) specified in the Debt Securities of such series, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference; 


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


        FOURTH:    The
remainder, if any, shall be paid to the Company, its successors or assigns, or to whomsoever may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct. 




        The
Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.03. At least 15 days before such record date, the Company shall
mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid. 


        Section 6.04.    Limitation on Suits by Holders.    No Holder of any Debt Security of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default with
respect to Debt Securities of that same series and of the continuance thereof and unless the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt Securities of that
series shall have made written request upon the Trustee to institute such action or proceedings in respect of such Event of Default in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity or security as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity or security shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the Holder of every Debt Security with every other Holder and the Trustee, that no one
or more Holders shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any Holders, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all
such Holders. For the protection and enforcement of the provisions of this Section 6.04, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or
in equity. 


        Notwithstanding
any other provision in this Indenture, however, the right of any Holder of any Debt Security to receive payment of the principal of, and premium, if any, and (subject to
Section 2.17) interest on, such Debt Security, on or after the respective due dates expressed in such Debt Security, and to institute suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of such Holder. 


28









 



































 





        Section 6.05.    Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default.    All
powers and remedies given by this Article VI to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers
and remedies available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any Default occurring and continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such Default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders. 


        Section 6.06.    Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive
Default.    The Holders of a majority in aggregate principal amount of the Debt Securities of any series at the time Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to the Trustee, or of exercising any right, trust or power conferred on the Trustee, with respect to the Debt Securities
of such series; provided, however, that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture, and that subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel shall determine that the action so directed may not lawfully be
taken, or if the Trustee shall by a Trust Officer or Officers determine that the action so directed would involve it in personal liability or would be unduly prejudicial to Holders of Debt Securities
of such series not taking part in such direction; and provided, further, however, that nothing in this Indenture contained shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by such Holders. Prior to the acceleration of the maturity of the Debt Securities of any series as provided in Section 6.01, the
Holders of a majority in aggregate principal amount of the Debt Securities of that series at the time Outstanding may on behalf of the Holders of all the Debt Securities of that series waive any past
Default or Event of Default and its consequences for that series, except a Default in the payment of the principal of, and premium, if any, or interest on, any of the Debt Securities and a Default in
respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder affected thereby. In case of any such waiver, such Default shall cease to exist, any Event of
Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture, and the Subsidiary Guarantors, the Company, the Trustee and the Holders of the Debt Securities of that
series
shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. 


        Section 6.07.    Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain
Circumstances.    The Trustee shall, within 90 days after the occurrence of a Default known to it, or if later, within 30 days after the Trustee obtains
actual knowledge of the Default, with respect to a series of Debt Securities give to the Holders thereof, in the manner provided in Section 13.03, notice of all Defaults with respect to such
series known to the Trustee, unless such Defaults shall have been cured or waived before the giving of such notice; provided, that, except in the case of Default in the payment of the principal of, or
premium, if any, or interest on, any of the Debt Securities of such series or in the making of any sinking fund payment with respect to the Debt Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors, the executive committee or a committee of directors or responsible officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders thereof. 


        Section 6.08.    Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the
Trustee.    All parties to this Indenture agree, and each Holder of any Debt Security by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any 


29







 



suit
for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit in the manner and to the extent provided in the TIA, and that such court may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this
Section 6.08 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than ten percent in principal amount
of the Outstanding Debt Securities of that series or to any suit instituted by any Holder for the enforcement of the payment of the principal of, or premium, if any, or interest on, any Debt Security
on or after the due date for such payment expressed in such Debt Security. 


 
 

  ARTICLE VII
  CONCERNING THE TRUSTEE    
    


        Section 7.01.    Certain Duties and Responsibilities.    The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In
case an
Event of Default has occurred (which has not been cured or waived), 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 their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. 


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


        (a)   this
paragraph shall not be construed to limit the effect of the first paragraph of this Section 7.01; 



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



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



         (ii)  the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; but the Trustee shall examine the evidence furnished to
it pursuant to Sections 4.05 and 4.06 to determine whether or not such evidence conforms to the requirement of this Indenture; 



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


        (iv)  the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to Debt Securities of any series in good faith in accordance
with the direction of the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of that 



30







 




series
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to Debt Securities of such series. 




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


        Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section. 


        Section 7.02.    Certain Rights of Trustee.    Except as otherwise provided in Section 7.01: 


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


        (b)   any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Issuer Request (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; 


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


        (d)   the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders
of Debt Securities of any series pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; 


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


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



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


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        (h)   if
any property other than cash shall at any time be subject to a Lien in favor of the Holders, the Trustee, if and to the extent authorized by a receivership or
bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such Lien, shall be entitled to make advances for the purpose of preserving such property or of
discharging tax Liens or other prior Liens or encumbrances thereon; 


        (i)    the
Trustee shall not be liable for special, indirect or consequential damages; and 


        (j)    the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall
be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed by the Trustee to act hereunder. 



        Section 7.03.    Trustee Not Liable for Recitals in Indenture or in Debt Securities.    The recitals contained
herein and in the Debt Securities (except the Trustee's certificate of authentication) shall be taken as the statements of the obligors on such Debt Services, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Debt Securities of any series, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate the Debt Securities and perform its obligations hereunder, and that the statements made by it or to be made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company are true and accurate. The Trustee shall not be accountable for the use or application by the Company
of any of the Debt Securities or of the proceeds thereof. 


        Section 7.04.    Trustee, Paying Agent or Registrar May Own Debt Securities.    The Trustee or any paying agent
or Registrar, in its individual or any other capacity, may become the owner or pledgee of Debt Securities and subject to the provisions of the TIA relating to conflicts of interest and preferential
claims may otherwise deal with the Company with the same rights it would have if it were not Trustee, paying agent or Registrar. 



        Section 7.05.    Moneys Received by Trustee to Be Held in Trust.    Subject to the provisions of
Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated
from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any moneys received by it hereunder. So long as no Event of Default shall have occurred
and be continuing, all interest allowed on any such moneys shall be paid from time to time to the Company upon an Issuer Request. 



        Section 7.06.    Compensation and Reimbursement.    The Company covenants and agrees to pay in Dollars to the
Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ), including Section 6.02, except any such expense, disbursement or advances as may arise from
its negligence or willful misconduct. The Company also covenants to indemnify in Dollars the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or
willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of
defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06
to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and 


32







 



advances
shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. The Company and the Holders agree that such additional indebtedness
shall be secured by a Lien prior to that of the Debt Securities upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and
premium, if any, or interest on, particular Debt Securities. 


        When
the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(e) or (f) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any bankruptcy, insolvency, reorganization or other similar law. 


        Section 7.07.    Right of Trustee to Rely on an Officers' Certificate Where No Other Evidence Specifically
Prescribed.    Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered
to the Trustee and such certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof. 


        Section 7.08.    Separate Trustee; Replacement of Trustee.    The Company may, but need not, appoint a separate
Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may remove the Trustee
for such series and only such series by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove the Trustee if: 


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


        (b)   the
Trustee is adjudged bankrupt or insolvent; 



        (c)   a
Custodian takes charge of the Trustee or its property; or 


        (d)   the
Trustee otherwise becomes incapable of acting. 


If
the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint
a successor Trustee, or if a vacancy exists in the office of Trustee for any other reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly
appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section 7.08. 


        A
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 Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of
Debt Securities of each applicable series. 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 7.06. 


        If
a successor Trustee does not take office within 60 days after the retiring Trustee gives notice of resignation or is removed, the retiring Trustee or the Holders of at least
25% in aggregate principal amount of the Debt Securities of any applicable series may petition any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of
such series. 


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


        Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.06 shall continue for the benefit of the retiring
Trustee. 


        In
the case of the appointment hereunder of a separate or successor Trustee with respect to the Debt Securities of one or more series, the Company, the Subsidiary Guarantors, any
retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an Indenture supplemental hereto (i) which shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as
to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (ii) that shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental Indenture shall constitute
such Trustees co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee. 


        Section 7.09.    Successor Trustee by Merger.    If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or banking association
without any further act shall be the successor Trustee, provided such Person shall be otherwise qualified and eligible under this Article VII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. As soon as practicable, the successor Trustee shall mail a notice of its succession to the Company and the Holders of the Debt Securities then
Outstanding. 


        In
case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Debt Securities
shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not have been authenticated, any successor to the Trustee may authenticate such Debt 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 Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have. 


        Section 7.10.    Eligibility; Disqualification.    The Trustee shall at all times satisfy the requirements of
Section 310(a) of the TIA. The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recently published annual report of condition. No obligor upon
the Debt Securities of a particular series or Person directly or indirectly controlling, controlled by or under common control with such obligor shall serve as Trustee upon the Debt Securities of such
series. The Trustee shall comply with Section 310(b) of the TIA; provided, however, that there shall be excluded
from the operation of Section 310(b)(1) of the TIA this Indenture or any indenture or indentures under which other securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the TIA are met. 


        Section 7.11.    Preferential Collection of Claims Against Company.    The Trustee shall comply with
Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the TIA to the extent indicated therein. 


34









 



































 





        Section 7.12.    Compliance with Tax Laws.    The Trustee hereby agrees to comply with all U.S. federal income
tax information reporting and withholding requirements applicable to it with respect to payments of principal, premium (if any) and interest on the Debt Securities, whether acting as Trustee,
Registrar, paying agent or otherwise with respect to the Debt Securities. 


 
 

  ARTICLE VIII
  CONCERNING THE HOLDERS    
    


        Section 8.01.    Evidence of Action by Holders.    Whenever in this Indenture it is provided that the Holders
of a specified percentage in aggregate principal amount of the Debt Securities of any or all series may take action (including the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, (b) by the record of the Holders voting in favor thereof at any
meeting of Holders duly called and held in accordance with such reasonable rules as the Trustee may make, (c) by a combination of such instrument or instruments and any such record of such a
meeting of Holders or (d) in the case of Debt Securities evidenced by a Global Security, by any electronic transmission or other message, whether or not in written format, that complies with
the Depositary's applicable procedures. 


        Section 8.02.    Proof of Execution of Instruments and of Holding of Debt Securities.    Subject to the
provisions of Sections 7.01, 7.02 and 13.09, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Debt Securities of any series shall be proved by the Debt Security Register
or by a certificate of the
Registrar for such series. The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall deem necessary. 


        Section 8.03.    Who May Be Deemed Owner of Debt Securities.    Prior to the due presentment for registration
of transfer of any Debt Security, the Company, the Subsidiary Guarantors, the Trustee, any paying agent and any Registrar may deem and treat the Person in whose name any Debt Security shall be
registered upon the Debt Security Register as the absolute owner of such Debt Security (whether or not such Debt Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the principal of and premium, if any, and (subject to Section 2.17) interest on such Debt Security and for all other
purposes, and none of the Company or the Subsidiary Guarantors nor the Trustee nor any paying agent nor any Registrar shall be affected by any notice to the contrary; and all such payments so made to
any such Holder for the time being, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such
Debt Security. 


        Section 8.04.    Instruments Executed by Holders Bind Future Holders; Record Date.    At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debt Securities of any
series specified in this Indenture in connection with such action and subject to the following paragraph, any Holder of a Debt Security which is shown by the evidence to be included in the Debt
Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at the Corporate Trust Office of the Trustee and upon proof of holding as provided in
Section 8.02 (or, in the case of Debt Securities evidenced by a Global Security, by complying with the Depositary's applicable procedures respecting revocation of consents), revoke such action
so far as concerns such Debt Security. Except as aforesaid any such action taken by the Holder of any Debt Security shall be conclusive and binding upon such Holder and upon all future Holders and
owners of such Debt Security and of any Debt Security issued upon transfer thereof or in exchange or substitution therefor, 


35







 



irrespective
of whether or not any notation in regard thereto is made upon such Debt Security or such other Debt Securities. Any action taken by the Holders of the percentage in aggregate principal
amount of the Debt Securities of any series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Subsidiary Guarantors, the Trustee and the
Holders of all the Debt Securities of such series. 


        The
Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders of Debt Securities entitled to give their consent or take any other action
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders of Debt Securities at
such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders of Debt Securities after such record date. No such consent shall be valid or effective for more than 180 days after such record date unless the consent of
the Holders of the percentage in aggregate
principal amount of the Debt Securities of such series specified in this Indenture shall have been received within such 180-day period. 


 
 

  ARTICLE IX
  SUPPLEMENTAL INDENTURES    
    


        Section 9.01.    Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders.
    The Company, the Subsidiary Guarantors and the Trustee may from time to time and at any time, without the consent of Holders, enter into an Indenture or Indentures supplemental hereto
(which shall conform to the provisions of the TIA as in force at the date of the execution thereof) for one or more of the following purposes: 


        (a)   to
cure any ambiguity or omission or to correct or supplement any provision contained herein or in any Debt Securities of any series that may be defective or
inconsistent with any other provision contained herein or in the Debt Securities of such series; 


        (b)   to
evidence the succession pursuant to Article X of another Person to the Company, or successive successions, and the assumption by the Successor Issuer (as
defined in Section 10.01) of the covenants, agreements and obligations of the Company in this Indenture and in the Debt Securities; 


        (c)   to
add Subsidiary Guarantors with respect to any or all of the Debt Securities; 


        (d)   in
the case of any Debt Securities subordinated pursuant to Article XII, to make any change in Article XII that would limit or terminate the benefits
available to any holder of Senior Indebtedness (or Representatives therefor) under Article XII; 



        (e)   to
add any additional Events of Default for the benefit of the Holders of all or any series of Debt Securities; to surrender any right or power herein conferred upon the
Company or the Subsidiary Guarantors; and to add to the covenants of the Company or the Subsidiary Guarantors such further covenants, restrictions, conditions or provisions for the protection of the
Holders of all or any series of Debt Securities (and if such covenants are to be for the benefit of less than all series of Debt Securities, stating that such covenants are expressly being included
solely for the benefit of such series) as the Board of Directors shall consider to be for the protection of the Holders of such Debt Securities, and to make the occurrence, or the occurrence and
continuance, of a Default in any of such additional covenants, restrictions, conditions or provisions a Default or an Event of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental Indenture may provide for a particular period of grace
after Default (which period may be shorter or longer than that allowed in the case of other Defaults) or may provide for an immediate enforcement upon such Default or may limit the remedies available
to the Trustee upon such Default or may limit the right of 


36







 



the
Holders of a majority in aggregate principal amount of any or all series of Debt Securities to waive such default; 


        (f)    to
make any change that does not adversely affect the rights of any Holder under this Indenture; 


        (g)   to
evidence and provide for the acceptance of appointment hereunder by a successor or separate Trustee with respect to the Debt 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; 


        (h)   to
secure any or all of the Debt Securities; 


        (i)    to
permit the qualification of this Indenture under the TIA as then in effect, except that nothing herein contained shall permit or authorize the inclusion in any
Indenture supplemental hereto of the provisions referred to in Section 316(a)(2) of the TIA; and 


        (j)    to
establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03. 



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


        Any
supplemental Indenture authorized by the provisions of this Section 9.01 may be executed by the Company, the Subsidiary Guarantors and the Trustee without the consent of the
Holders of any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02. 



        In
the case of Debt Securities subordinated pursuant to Article XII, an amendment under this Section 9.01 may not make any change that adversely affects the rights under
Article XII of any holder of Senior Indebtedness then outstanding unless the holders of such Senior Indebtedness (or any group or Representative thereof authorized to give a consent) consent to
such change. 


        Section 9.02.    Modification of Indenture with Consent of Holders of Debt Securities.    Without notice to any
Holder but with the consent (evidenced as provided in Section 8.01) of the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of each series affected by such
supplemental Indenture (including consents obtained in connection with a tender offer or exchange offer for any such series of Debt Securities), the Company and the Subsidiary Guarantors, when
authorized by resolutions of the Board of Directors, and the Trustee may from time to time and at any time enter into an Indenture or Indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of execution thereof) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Debt Securities of such series; provided, that no such supplemental Indenture, without the consent of the Holders of each Debt Security so
affected, shall: reduce the percentage in principal amount of Debt Securities of any series whose Holders must consent to an amendment; reduce the rate of or extend the time for payment of interest on
any Debt Security; reduce the principal of or extend the Stated Maturity of any Debt Security; reduce the premium payable upon the redemption of any Debt Security or change the time at which any Debt
Security may or shall be redeemed in accordance with Article III; make any Debt Security payable in currency other than the Dollar; impair the right of any Holder to receive any payment of
principal of, premium, if any, or interest on, such Holder's Debt Securities on or after the due dates therefor or to institute suit for the enforcement of any payment with respect to such Holder's
Debt Securities; in the 


37







 



case
of any Debt Security subordinated pursuant to Article XII, make any change in Article XII that adversely affects the rights of any Holder under Article XII; release any
security that may have been granted in respect of the Debt Securities, other than in accordance with this Indenture; make any change in Section 6.06 or this Section 9.02; or, except as
provided in Section 14.04, release any Subsidiary Guarantors or modify any Guarantee in any manner adverse to the Holders. 


        A
supplemental Indenture which changes or eliminates any covenant or other provision of this Indenture which has been expressly included solely for the benefit of one or more particular
series of Debt Securities or which modifies the rights of the Holders of Debt 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 Debt Securities of any other series. 


        Upon
the request of the Company, accompanied by a copy of resolutions of the Board of Directors authorizing the execution of any such supplemental Indenture, and upon the filing with the
Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Company and the Subsidiary Guarantors in the execution of such supplemental Indenture unless such
supplemental Indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter
into such 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 supplemental Indenture, but it shall be sufficient
if such consent shall approve the substance thereof. 


        In
the case of any Debt Securities subordinated pursuant to Article XII, an amendment under this Section 9.02 may not make any change that adversely affects the rights
under Article XII of any holder of Senior Indebtedness then outstanding unless the holders of such Senior Indebtedness (or any group or Representative thereof authorized to give a consent)
consent to such change. 


        After
an amendment under this Section 9.02 becomes effective, the Company shall mail to Holders of Debt Securities of each series affected thereby a notice briefly describing such
amendment. The failure to give such notice to all such Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 9.02. 


        Section 9.03.    Effect of Supplemental Indentures.    Upon the execution of any supplemental Indenture
pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company, the Subsidiary Guarantors and the Holders shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental Indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes. 


        The
Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any such supplemental
Indenture complies with the provisions of this Article IX. 



        Section 9.04.    Debt Securities May Bear Notation of Changes by Supplemental Indentures.    Debt Securities of
any series authenticated and delivered after the execution of any supplemental Indenture pursuant to the provisions of this Article IX 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 supplemental Indenture. New Debt Securities of any series so modified as to conform, in the opinion of the Trustee and the
Company, to any modification of this Indenture contained in any such supplemental Indenture may be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange for the 


38







 



Debt
Securities of such series then Outstanding. Failure to make the appropriate notation or to issue a new Debt Security of such series shall not affect the validity of such amendment. 


 
 

  ARTICLE X
  CONSOLIDATION, MERGER, SALE OR CONVEYANCE    
    



        Section 10.01.    Consolidations and Mergers of the Company.    The Company shall not consolidate with or merge
with or into any Person, or sell, convey, transfer, lease or otherwise dispose of all or substantially all its assets to any Person, whether in a single transaction or a series of related
transactions, unless: (a) either (i) the Company shall be the continuing Person in the case of a merger or (ii) the resulting, surviving or transferee Person if other than the
Company (the "Successor Issuer"), shall be a partnership, limited liability company or corporation organized and existing under the laws of the United States, any State thereof or the District of
Columbia, and the Successor Issuer shall expressly assume, by an Indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the
Company under this Indenture and the Debt Securities according to their tenor; (b) immediately after giving effect to such transaction or series of transactions (and treating any Debt which
becomes an obligation of the Successor Issuer or any Subsidiary of the Successor Issuer as a result of such transaction as having been incurred by the Successor Issuer or such Subsidiary at the time
of such transaction), no Default or Event of Default would occur or be continuing; (c) if the Company is not the continuing Person, then any Subsidiary Guarantor, unless it has become the
Successor Issuer, shall confirm that its Guarantee shall continue to apply to the obligations of the Company under the Debt Securities and this Indenture; and (d) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and such supplemental Indenture (if any) comply with this
Indenture. 


        Section 10.02.    Rights and Duties of Successor Issuer.    In case of any consolidation or merger where the
Company is not the continuing Person, or disposition of all or substantially all of the assets of the Company in accordance with Section 10.01, the Successor Issuer shall succeed to and be
substituted for the Company with the same effect as if it had been named herein as the respective party to this Indenture, and the predecessor entity shall be released from all liabilities and
obligations under this
Indenture and the Debt Securities, except that no such release will occur in the case of a lease of all or substantially all of its assets. The Successor Issuer thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all the Debt Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of the Successor Issuer, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debt Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Debt Securities which the Successor
Issuer thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Debt Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all such Debt Securities had been issued at the date of the execution hereof. 


        In
case of any such consolidation, merger, sale or disposition such changes in phraseology and form (but not in substance) may be made in the Debt Securities thereafter to be issued as
may be appropriate. 


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  ARTICLE XI
  SATISFACTION AND DISCHARGE OF
  INDENTURE; DEFEASANCE; UNCLAIMED MONEYS    
    


        Section 11.01.    Applicability of Article.    The provisions of this Article XI relating to defeasance
of Debt Securities shall be applicable to each series of Debt Securities except as otherwise specified pursuant to Section 2.03 for Debt Securities of such series. 



        Section 11.02.  Satisfaction and Discharge of Indenture; Defeasance. 


        (a)   If
at any time the Company shall have delivered to the Trustee for cancellation all Debt Securities of any series theretofore authenticated and delivered (other than any
Debt Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09 and Debt Securities for whose payment money
has theretofore been deposited in trust and thereafter repaid to the Company as provided in Section 11.05) or all Debt Securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms will become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall deposit with the Trustee as trust funds the entire amount in cash sufficient to pay at maturity or upon redemption all Debt
Securities of such series not theretofore delivered to the Trustee for cancellation, including principal and premium, if any, and interest due or to become due on such date of Stated Maturity or
redemption date, as the case may be, and if in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company (or any other obligor on the Debt Securities
of such series), then this Indenture shall cease to be of further effect (except as provided in clause (c) below) with respect to the Debt Securities of such series, and the Trustee, on demand
of the Company accompanied by an Officers' Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series. 


        (b)   Subject
to Sections 11.02(c), 11.03 and 11.07, the Company at any time may terminate, with respect to Debt Securities of a particular series, all of the
obligations of the Company and any other obligor on such series under the Debt Securities of such series and this Indenture with respect to the Debt Securities of such series ("legal defeasance
option") or the operation of (x) the covenants in Sections 4.09 and 4.10, (y) any covenant made applicable to such Debt Securities pursuant to Section 2.03 and
(z) Section 6.01(d), but only as it relates to any such covenant ("covenant defeasance option"). If the Company exercises its legal defeasance option, each Guarantee will terminate with
respect to that series of Debt Securities. The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. 


        If
the Company exercises its legal defeasance option, payment of the Debt Securities of the defeased series may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Debt Securities of the defeased series may not be accelerated because of an Event of Default specified in clause (z) of the preceding
paragraph. 


        (c)   Notwithstanding
clauses (a) and (b) above, the Company's obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 11.05, 11.06 and 11.07 shall
survive until the Debt Securities of the defeased series have been paid in full. Thereafter, the Company's obligations in Sections 7.06, 11.05 and 11.06 shall survive. 


        Section 11.03.    Conditions of Defeasance.    The Company may exercise its legal defeasance option or its
covenant defeasance option with respect to Debt Securities of a particular series only if: 



        (a)   the
Company irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of principal of, and premium, if any, and interest on,
the Debt Securities of such series to its Stated Maturity or Redemption Date, as the case may be; 


40







 

        (b)   the
Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal
and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be
sufficient to pay the principal, premium and interest when due on all the Debt Securities of such series to its Stated Maturity or Redemption Date, as the case may be; 


        (c)   91 days
pass after the deposit is made and during the 91-day period no Default specified in Section 6.01(e) or (f) with respect to the
Company occurs which is continuing at the end of the period; 


        (d)   no
Default has occurred and is continuing on the date of such deposit and after giving effect thereto; 



        (e)   the
deposit does not constitute a default under any agreement (other than this Indenture) binding on the Company and, if the Debt Securities of such series are
subordinated pursuant to Article XII, is not prohibited by Article XII; 


        (f)    in
the event of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that the Company has received from the
Internal Revenue Service a ruling, or since the date of this Indenture there has been a change in the applicable federal income tax law, in either case of the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of Debt Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred; 


        (g)   in
the event of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of Debt Securities
of such series will not recognize income, gain or loss for federal income tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant defeasance had not occurred; and 



        (h)   the
Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the
Debt Securities of such series as contemplated by this Article XI have been complied with. 


        Before
or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Debt Securities of such series at a future date in accordance with
Article III. 


        Section 11.04.    Application of Trust Money.    The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to this Article XI. It shall apply the deposited money and the money from U.S. Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on, the Debt Securities of the defeased series. Prior to the maturity of such defeased series, the Trustee may, upon receipt
of an Issuer Request, invest such money in U.S. Government Obligations. In the event the Debt Securities of the defeased series are subordinated pursuant to Article XII, money and securities so
held in trust shall not be subject to Article XII. 


        Section 11.05.    Repayment to Company.    The Trustee and any paying agent shall promptly turn over to the
Company upon request any excess money or securities held by them at any time. 


        Subject
to any applicable abandoned property law, the Trustee and any paying agent shall pay to the Company upon request any money held by them for the payment of principal, premium or
interest that remains unclaimed for two years, and, thereafter, Holders entitled to such money must look to the Company or any other obligor on the particular Debt Securities for payment as general
creditors. 


41









 



































 





        Section 11.06.    Indemnity for U.S. Government Obligations.    The Company shall pay and shall indemnify the
Trustee and the Holders against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government
Obligations. 


        Section 11.07.    Reinstatement.    If the Trustee or any paying agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article XI by reason of any legal proceeding or by reason of any order or judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this Indenture and the Debt Securities of the defeased series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article XI until such time as the Trustee or any paying agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article XI. 


 
 

  ARTICLE XII
  SUBORDINATION OF DEBT SECURITIES AND GUARANTEES    
    


        Section 12.01.    Applicability of Article; Agreement to Subordinate.    The provisions of this
Article XII shall only be applicable to the Debt Securities of any series (Debt Securities of such series being referred to in this Indenture as "Subordinated Debt Securities") designated,
pursuant to Section 2.03, as subordinated to Senior Indebtedness and any related Guarantee of such Subordinated Debt Securities. Each Holder by accepting a Subordinated Debt Security agrees
that the Debt evidenced by such Subordinated Debt Security and any related Guarantee of such Subordinated Debt Security is subordinated in right of payment, to the extent and in the manner provided in
this Article XII, to the prior payment of all Senior Indebtedness and that the subordination is for the benefit of and enforceable by the holders of Senior Indebtedness. All provisions of this
Article XII shall be subject to Section 12.12. 


        Section 12.02.    Liquidation, Dissolution, Bankruptcy.    Upon any payment or distribution of the assets of
the Company or a Subsidiary Guarantor, as the case may be, to creditors, upon a liquidation or a dissolution of the Company or the Subsidiary Guarantors, as the case may be, or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the Company or such Subsidiary Guarantor, as the case may be, or its property: 


        (a)   holders
of Senior Indebtedness of the Company or such Subsidiary Guarantor, as the case may be, shall be entitled to receive payment in full in cash of such Senior
Indebtedness of such Person (including interest (if any), accruing on or after the commencement of a proceeding in bankruptcy, whether or not allowed as a claim against the Company or such Subsidiary
Guarantor, as the case may be, in such bankruptcy proceeding) before Holders of Subordinated Debt Securities and any related Guarantee shall be entitled to receive any payment of principal of, or
premium, if any, or interest on, the Subordinated Debt Securities from the Company, or any payment in respect of any Guarantee from the Subsidiary Guarantors; and 


        (b)   until
the Senior Indebtedness of the Company or such Subsidiary Guarantor, as the case may be, is paid in full, any distribution to which Holders of Subordinated Debt
Securities and any related Guarantee would be entitled but for this Article XII shall be made to holders of Senior Indebtedness of the Company or such Subsidiary Guarantor, as the case may be,
as their interests may appear, except that such Holders may receive capital stock and any debt securities that are subordinated to Senior Indebtedness of the Company or such Subsidiary Guarantor, as
the case may be, to at least the same extent as the Subordinated Debt Securities of the Company or the related Guarantee of such Subsidiary Guarantor, respectively. 


        Section 12.03.    Default on Senior Indebtedness.    The Company and the Subsidiary Guarantors may not pay the
principal of, or premium, if any, or interest on, the Subordinated Debt Securities or any related Guarantee or make any deposit pursuant to Article XI and may not repurchase, redeem or 


42







 



otherwise
retire (except, in the case of Subordinated Debt Securities that provide for a mandatory sinking fund pursuant to Section 3.05, by the delivery of Subordinated Debt Securities by the
Company to the Trustee pursuant to the first paragraph of Section 3.05) any Subordinated Debt Securities (collectively, "pay the Subordinated Debt Securities") if any principal, premium or
interest in respect of Senior Indebtedness of such Person is not paid within any applicable grace period (including at maturity) or any other default on Senior Indebtedness of such Person occurs and
the maturity of such Senior Indebtedness is accelerated in accordance with its terms unless, in either case, the default has been cured or waived and any such acceleration has been rescinded or such
Senior Indebtedness has been paid in full in cash; provided, however, that the Company and the Subsidiary Guarantors may make payments on the Subordinated Debt Securities or any related Guarantee
without regard to the foregoing if the Company and the Trustee receive written notice approving such payment from the Representative of each issue of Designated Senior Indebtedness. During the
continuance of any other default with respect to any Designated Senior Indebtedness pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as
may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company and the Subsidiary Guarantors may not make payments on the Subordinated Debt Securities or any related Guarantee for a
period (a "Payment Blockage Period") commencing upon the receipt by the Company and the Trustee (and if such Designated Senior Indebtedness is Debt of a Subsidiary Guarantor, the Subsidiary Guarantor)
of written notice of such default from the Representative of any Designated Senior Indebtedness specifying an election to effect a Payment Blockage Period (a "Blockage Notice") and ending
179 days thereafter (or earlier if such Payment Blockage Period is terminated by written notice to the Trustee and the Company (and if such Designated Senior Indebtedness is Debt of a
Subsidiary Guarantor, the Subsidiary Guarantor) from the Person or Persons who gave such Blockage Notice, by repayment in full in cash of such Designated Senior Indebtedness or because the default
giving rise to such Blockage Notice is no longer continuing). Notwithstanding the provisions described in the immediately preceding sentence (but subject to the provisions contained in
Section 12.02 and the first sentence of this Section 12.03), unless the holders of such Designated Senior Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company and the Subsidiary Guarantors may resume payments on the Subordinated Debt Securities and related Guarantees after such Payment Blockage
Period. Not more than one Blockage Notice may be given in any consecutive 360-day period, irrespective of the number of defaults with respect to any number of issues of Designated Senior
Indebtedness during such period, unless otherwise specified pursuant to Section 2.03 for the Subordinated Debt Securities of a series; provided, however, that in no event may the total number
of days during which any Payment Blockage Period or Periods is in effect exceed 179 days in the aggregate during any 360 consecutive day period. For purposes of this Section 12.03, no
default or event of default which existed or was continuing on the date of the commencement of any Payment Blockage Period with respect to the Designated Senior Indebtedness initiating such Payment
Blockage Period shall be, or be made, the basis of the commencement of a subsequent Payment Blockage Period by the Representative of such Designated Senior Indebtedness, whether or not within a period
of 360 consecutive days, unless such default or event of default shall have been cured or waived for a period of not less than 90 consecutive days. 


        Section 12.04.    Acceleration of Payment of Debt Securities.    If payment of any series of Subordinated Debt
Securities is accelerated because of an Event of Default, the Company shall promptly notify the holders of the Designated Senior Indebtedness (or their Representatives) of the acceleration. 



        Section 12.05.    When Distribution Must Be Paid Over.    If a distribution is made to Holders of Subordinated
Debt Securities or a related Guarantee that because of this Article XII should not have been made to them, the Holders who receive such distribution shall hold it in trust for holders of Senior
Indebtedness and pay it over to them as their interests may appear. 


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        Section 12.06.    Subrogation.    After all Senior Indebtedness is paid in full and until the Subordinated Debt
Securities are paid in full, Holders thereof shall be subrogated to the rights of holders of Senior Indebtedness to receive distributions applicable to Senior Indebtedness. A distribution made under
this
Article XII to holders of Senior Indebtedness which otherwise would have been made to Holders of Subordinated Debt Securities is not, as between any of the Company or the Subsidiary Guarantors,
as the case may be, and such Holders, a payment by the Company or such Subsidiary Guarantor, as the case may be, on Senior Indebtedness. 



        Section 12.07.    Relative Rights.    This Article XII defines the relative rights of Holders of
Subordinated Debt Securities and holders of Senior Indebtedness. Nothing in this Indenture shall: 


        (a)   impair,
as between any of the Company or the Subsidiary Guarantors, as the case may be, and Holders of either Subordinated Debt Securities or other Debt Securities, the
obligation of the Company or such Subsidiary Guarantor, as the case may be, which is absolute and unconditional, to pay principal of, and premium, if any, and interest on, the Subordinated Debt
Securities and the other Debt Securities in accordance with their respective terms; or 



        (b)   prevent
the Trustee or any Holder of either Subordinated Debt Securities or other Debt Securities from exercising its available remedies upon an Event of Default,
subject to the rights of holders of Senior Indebtedness to receive distributions otherwise payable to Holders of Subordinated Debt Securities. 


        Section 12.08.    Subordination May Not Be Impaired by Obligors.    No right of any holder of Senior
Indebtedness to enforce the subordination of the Debt evidenced by the Subordinated Debt Securities and any Guarantee in respect thereof shall be impaired by any act or failure to act by the Company
or the Subsidiary Guarantors or by their failure to comply with this Indenture. 



        Section 12.09.    Rights of Trustee and Paying Agent.    Notwithstanding Sections 12.02 and 12.03, the
Trustee or any paying agent may continue to make payments on Subordinated Debt Securities and shall not be charged with knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such payment, a Trust Officer receives notice satisfactory to him that payments may not be made under this Article XII. The
Company, the Registrar, any paying agent, a Representative or a holder of Senior Indebtedness may give the notice; provided, however, that, if an issue of Senior Indebtedness has a Representative,
only the Representative may give the notice on behalf of the Holders of the Senior Indebtedness of that issue. 



        The
Trustee in its individual or any other capacity may hold Senior Indebtedness with the same rights it would have if it were not Trustee. The Registrar and any paying agent may do the
same with like rights. The Trustee shall be entitled to all the rights set forth in this Article XII with respect to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article VII shall deprive the Trustee of any of its rights as such holder. Nothing in this Article XII shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.06. 


        Section 12.10.    Distribution or Notice to Representative.    Whenever a distribution is to be made or a
notice given to holders of Senior Indebtedness, the distribution may be made and the notice given to their Representative (if any). 


        Section 12.11.    Article XII Not to Prevent Defaults or Limit Right to Accelerate.    The failure to
make a payment pursuant to any series of Subordinated Debt Securities, whether directly or pursuant to any Guarantee, by reason of any provision in this Article XII shall not be construed as
preventing the occurrence of a Default with respect to such series. Nothing in this Article XII shall have any effect on the right of the Holders or the Trustee to accelerate the maturity of
either the Subordinated Debt Securities of any series or the Debt Securities of any series, as the case may be. 


44







 

        Section 12.12.    Trust Moneys Not Subordinated.    Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government Obligations held in trust under Article XI by the Trustee for the payment of principal of, and premium, if any, and interest on,
Subordinated Debt Securities or any other Debt Securities shall not be subordinated to the prior payment of any Senior Indebtedness or subject to the restrictions set forth in this Article XII,
and none of the Holders thereof shall be obligated to pay over any such amount to the Company, the Subsidiary Guarantors or any holder of Senior Indebtedness of the Company or the Subsidiary
Guarantors or any other creditor of the Company or any Subsidiary Guarantor. 


        Section 12.13.    Trustee Entitled to Rely.    Upon any payment or distribution pursuant to this
Article XII, the Trustee and the Holders shall be entitled to rely upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in
Section 12.02 are pending, upon a certificate of the liquidating trustee or agent or other Person making such payment or distribution to the Trustee or to such Holders or upon the
Representatives for the holders of Senior Indebtedness for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and
other Debt of any of the Company or the Subsidiary Guarantors, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article XII. In the event that the Trustee determines, in good faith, that evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article XII, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and other facts pertinent to the rights of such Person under this
Article XII, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or omissions of actions by the Trustee pursuant to this Article XII. 


        Section 12.14.    Trustee to Effectuate Subordination.    Each Holder by accepting a Subordinated Debt Security
authorizes and directs the Trustee on its behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination between the Holders of Subordinated Debt
Securities and the holders of Senior Indebtedness as provided in this Article XII and appoints the Trustee as attorney-in-fact for any and all such purposes. 


        Section 12.15.    Trustee Not Fiduciary for Holders of Senior Indebtedness.    The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall mistakenly pay over or distribute to Holders of Subordinated Debt Securities or
the Company or the Subsidiary Guarantors or any other Person, money or assets to which any holders of Senior Indebtedness shall be entitled by virtue of this Article XII or otherwise. 


        Section 12.16.    Reliance by Holders of Senior Indebtedness on Subordination Provisions.    Each Holder by
accepting a Subordinated Debt Security acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or after the issuance of the Subordinated Debt Securities, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness, and such holder of Senior Indebtedness shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold,
such Senior Indebtedness. 


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  ARTICLE XIII
  MISCELLANEOUS PROVISIONS    
    



        Section 13.01.    Successors and Assigns of the Company Bound by Indenture.    All the covenants, stipulations,
promises and agreements in this Indenture contained by or in behalf of the Company, the Subsidiary Guarantors or the Trustee shall bind their respective successors and assigns, whether so expressed or
not. 


        Section 13.02.    Acts of Board, Committee or Officer of Successor Issuer Valid.    Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed by any board, committee or
officer of the Company or any Subsidiary Guarantor shall and may be done and performed with like force and effect by the like board, committee or officer of any Successor Issuer or successor
Subsidiary Guarantor. 


        Section 13.03.    Required Notices or Demands.    Any notice or communication by the Company, the Subsidiary
Guarantors or the Trustee to the others is duly given if in writing (in the English language) and delivered in person or mailed by registered or certified mail (return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the other's address: 


        If
to the Company or the Subsidiary Guarantors: 



c/o
Cloud Peak Energy Inc.

505 S. Gillette Avenue

Gillette, WY 82716 


Attention:
Chief Financial Officer

Telecopy No. (307) 687-6015 



 






 



						
	 	If to the Trustee:	 	 
	
 	







  	
 	

 
	 	





  	 	 
	 	





  	 	 
	
 	
 Attention:	
 	
                                      







 	
 	

 
	 	Telecopy No.	 	                 







 	 	 




 

         The
Company, the Subsidiary Guarantors or the Trustee by notice to the others 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; on the first Business Day on or after being sent, if telecopied and the sender receives confirmation of successful transmission; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. 


        Any
notice required or permitted to a Holder by the Company, the Subsidiary Guarantors or the Trustee pursuant to the provisions of this Indenture shall be deemed to be properly mailed
by being deposited postage prepaid in a post office letter box in the United States addressed to such Holder at the address of such Holder as shown on the Debt Security Register. Any report pursuant
to Section 313 of the TIA shall be transmitted in compliance with subsection (c) therein. 



        Notwithstanding
the foregoing, any notice to Holders of Floating Rate Debt Securities regarding the determination of a periodic rate of interest, if such notice is required pursuant to
Section 2.03, shall be sufficiently given if given in the manner specified pursuant to Section 2.03. 


46









 



































 





        In the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification as shall be given with the
approval of the Trustee shall constitute sufficient notice for every purpose hereunder. 


        In
the event it shall be impracticable to give notice by publication, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for
every purpose hereunder. 


        Failure
to mail a notice or communication to a Holder or any defect in it or any defect in any notice by publication as to a Holder shall not affect the sufficiency of such notice with
respect to other Holders. If a notice or communication is mailed or published in the manner provided above, it is conclusively presumed duly given. 


        Section 13.04.    Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New
York.    THIS INDENTURE, EACH DEBT SECURITY AND THE GUARANTEES SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE. 


        Section 13.05.    Officers' Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the
Company.    Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. 


        Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with. 


        Section 13.06.    Payments Due on Legal Holidays.    In any case where the date of maturity of interest on or
principal of and premium, if any, on the Debt Securities of a series or the date fixed for redemption or repayment of any Debt Security or the making of any sinking fund payment shall not be a
Business Day at any Place of Payment for the Debt Securities of such series, then payment of interest or principal and premium, if any, or the making of such sinking fund payment need not be made on
such date at such Place of Payment, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the date of maturity or the date fixed for
redemption, and no interest shall accrue for the period after such date. If a record date is not a Business Day, the record date shall not be affected. 


        Section 13.07.    Provisions Required by TIA to Control.    If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 318, inclusive, of the
TIA, such required provision shall control. 


47







 

        Section 13.08.    Computation of Interest on Debt Securities.    Interest, if any, on the Debt Securities shall
be computed on the basis of a 360-day year of twelve 30-day months, except as may otherwise be provided pursuant to Section 2.03. 



        Section 13.09.    Rules by Trustee, Paying Agent and Registrar.    The Trustee may make reasonable rules for
action by or a meeting of Holders. The Registrar and any paying agent may make reasonable rules for their functions. 


        Section 13.10.    No Recourse Against Others.    The managers, directors, officers, employees, incorporators,
members, partners and stockholders of the Company or any Subsidiary Guarantors, as such, shall have no liability for any obligations of the Company or the Subsidiary Guarantors under the Debt
Securities,
this Indenture or the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a Debt Security, each Holder shall be deemed to have waived
and released all such liability. The waiver and release shall be part of the consideration for the issuance of the Debt Securities. 


        Section 13.11.    Severability.    In case any provision in this Indenture or the Debt Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 



        Section 13.12.    Effect of Headings.    The article and section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof. 


        Section 13.13.    Indenture May Be Executed in Counterparts.    The parties may sign any number of copies of
this Indenture, and each party hereto may sign any number of separate copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The
exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be
used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. 


 
 

  ARTICLE XIV
  GUARANTEE    
    


        Section 14.01.    Unconditional Guarantee.    



        (a)   Notwithstanding
any provision of this Article XIV to the contrary, the provisions of this Article XIV relating to the Subsidiary Guarantors shall be
applicable only to, and inure solely to the benefit of, the Debt Securities of any series designated, pursuant to Section 2.03, as entitled to the benefits of the Guarantee of each of the
Subsidiary Guarantors. 


        (b)   For
value received, each of the Subsidiary Guarantors hereby fully, unconditionally and absolutely guarantee (the "Guarantees") to the Holders and to the Trustee the due
and punctual payment of the principal of, and premium, if any, and interest on the Debt Securities and all other amounts due and payable under this Indenture (including under Section 7.06) and
the Debt Securities by the Company, when and as the same shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to
the terms of the Debt Securities and this Indenture, subject to (i) the limitations set forth in Section 14.03 and (ii) in the case of a Guarantee of the Subordinated Debt
Securities, to the subordination provisions contained in Article XII. 


        (c)   Failing
payment when due of any amount guaranteed pursuant to this Article XII, for whatever reason, each of the Subsidiary Guarantors will be jointly and
severally obligated to pay the same immediately, subject, in the case of a Guarantee of the Subordinated Debt Securities, to the subordination provisions contained in Article XII. Each
Guarantee hereunder (other than any 


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Guarantee
of Subordinated Debt Securities) is intended to be a general, unsecured, senior obligation of each of the Subsidiary Guarantors and will rank pari passu in right of payment with all Debt of
such Subsidiary Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee. Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall
be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Debt Securities, the Guarantees or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Debt Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company or any Subsidiary Guarantor, or any action
to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees
that in the event of a default in payment of the principal of, or premium, if any, or interest on the Debt Securities, whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.04, by the Holders, on the terms and conditions set forth in this
Indenture, directly against such Subsidiary Guarantor to enforce their respective Guarantees without first proceeding against the Company or any other Subsidiary Guarantor. 


        (d)   The
obligations of each of the Subsidiary Guarantors under this Article XIV shall be as aforesaid full, unconditional and absolute and shall not be impaired,
modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (A) any compromise, settlement, release, waiver, renewal, extension, indulgence or
modification of, or any change in, any of the obligations and liabilities of the Company or any of the Subsidiary Guarantors contained in the Debt Securities or this Indenture, (B) any
impairment, modification, release or limitation of the liability of the Company, any of the Subsidiary Guarantors or any of their respective estates in bankruptcy, or any remedy for the enforcement
thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (C) the assertion or
exercise by the Company, any of the Subsidiary Guarantors or the Trustee of any rights or remedies under the Debt Securities or this Indenture or their delay in or failure to assert or exercise any
such rights or remedies, (D) the assignment or the purported assignment of any property as security for the Debt Securities, including all or any part of the rights of the Company or any of the
Subsidiary Guarantors under this Indenture, (E) the extension of the time for payment by the Company or any of the Subsidiary Guarantors of any payments or other sums or any part thereof owing
or payable under any of the terms and provisions of the Debt Securities or this Indenture or of the time for performance by the Company or any of the Subsidiary Guarantors of any other obligations
under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (F) the modification or amendment (whether material or otherwise) of any duty, agreement or
obligation of the Company or any of the Subsidiary Guarantors set forth in this Indenture, (G) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or
substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceeding affecting, the Company or any of the Subsidiary Guarantors or any of their respective assets, or the disaffirmance of the Debt Securities, any Guarantee or
this Indenture in any such proceeding, (H) the release or discharge of the Company or any of the Subsidiary Guarantors from the performance or observance of any agreement, covenant, term or
condition contained in any of such instruments by operation of law, (I) the unenforceability of the Debt Securities, any Guarantee or this Indenture or (J) any other circumstances (other
than payment in full or discharge of all amounts guaranteed pursuant to the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety or guarantor. 


        (e)   Each
of the Subsidiary Guarantors hereby (A) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger,
insolvency or bankruptcy of the Company or any of the Subsidiary Guarantors, and all demands whatsoever, (B) acknowledges that any 


49







 



agreement,
instrument or document evidencing its Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document
evidencing the Guarantee without notice to it and (C) covenants that its Guarantee will not be discharged except by complete performance of the Guarantee. Each of the Subsidiary Guarantors
further agrees that if at any time all or any part of any payment theretofore applied by any Person to its Guarantee is, or must be, rescinded or returned for any reason whatsoever, including without
limitation, the insolvency, bankruptcy or reorganization of the Company or any of the Subsidiary Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not
been made. 


        (f)    Each
of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the Trustee against the Company in respect of any amounts paid by such Subsidiary
Guarantor pursuant to the provisions of this Indenture, provided, however, that such Subsidiary Guarantor, shall not be entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until all of the Debt Securities shall have been paid in full or discharged. 


        Section 14.02.    Execution and Delivery of Notation of Guarantee.    To further evidence its Guarantee set
forth in Section 14.01, each of the Subsidiary Guarantors hereby agrees that a notation relating to such Guarantee, substantially in the form attached hereto as Annex A, shall be
endorsed on each Debt Security entitled to the benefits of the Guarantee authenticated and delivered by the Trustee and executed by either manual or facsimile signature of an Officer of such
Subsidiary Guarantor. Each of the Subsidiary Guarantors hereby agrees that its Guarantee set forth in Section 14.01 shall remain in full force and effect notwithstanding any failure to endorse
on each Debt Security a notation relating to the Guarantee. If any Officer of any Subsidiary Guarantor whose signature is on a notation of its Guarantee no longer holds that office at the time the
Trustee authenticates such Debt Security or at any time thereafter, the Guarantee of such Debt Security shall be valid nevertheless. The delivery of any Debt Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantees set forth in this Indenture on behalf of the Subsidiary Guarantors. 


        The
Trustee hereby accepts the trusts in this Indenture upon the terms and conditions herein set forth. 



        Section 14.03.    Limitation on Liability of the Subsidiary Guarantors.    Each Subsidiary Guarantor and by its
acceptance hereof each Holder of a Debt Security entitled to the benefits of its Guarantee hereby confirm that it is the intention of all such parties that the guarantee by such Subsidiary Guarantor
pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of any federal or state law. To effectuate the foregoing intention, each Holder of a Debt Security entitled to
the benefits of such Guarantee and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor under its Guarantee shall be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in
respect of the obligations of such other Subsidiary Guarantor under its Guarantee, result in the obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent conveyance
or fraudulent transfer under Federal or state law. 


        Section 14.04.    Release of Subsidiary Guarantors from Guarantee.    


        (a)   Notwithstanding
any other provisions of this Indenture, the Guarantee of any Subsidiary Guarantor may be released upon the terms and subject to the conditions set forth
in this Section 14.04. Provided that no Default shall have occurred and shall be continuing under this Indenture with respect to a series of Debt Securities, any Guarantee of such series of
Debt Securities incurred by a Subsidiary Guarantor pursuant to this Article XIV shall be unconditionally released and discharged automatically 


50







 



upon
(i) any sale, exchange or transfer, whether by way of merger or otherwise, to any Person that is not an Affiliate of the Company, of a sufficient amount of the Company's direct or indirect
partnership or other equity interests in such Subsidiary Guarantor so that it no longer qualifies hereunder as a Subsidiary of the Company (provided such sale, exchange or transfer is not prohibited
by this Indenture), (ii) the merger of such Subsidiary Guarantor into the Company or any other Subsidiary Guarantor or the liquidation and dissolution of such Subsidiary Guarantor (in each case
to the extent not prohibited by this Indenture), (iii) following delivery of a written notice by the Company to the Trustee of the release or discharge of all guarantees by such Subsidiary
Guarantor of any Debt of the Company other than obligations arising under this Indenture and any Debt Securities issued hereunder, except a discharge or release by or as a result of payment under such
guarantees, or (iv) the Company's exercise of its legal defeasance option or the satisfaction and discharge of this Indenture with respect to such series of Debt Securities, in each case in
accordance with Article XI hereof. 


        (b)   The
Trustee shall deliver an appropriate instrument evidencing any release of a Subsidiary Guarantor from its Guarantee upon receipt of an Issuer Request of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel that the Subsidiary Guarantor is entitled to such release in accordance with the provisions of this Indenture. Any Subsidiary
Guarantor not so released shall remain liable for the full amount of principal of (and premium, if any, on) and interest on the Debt Securities entitled to the benefits of its Guarantee as provided in
this Indenture, subject to the limitations of Section 14.03. 



        Section 14.05.    Contribution.    In order to provide for just and equitable contribution among the Subsidiary
Guarantors, the Subsidiary Guarantors hereby agree, inter se, that in the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Subsidiary Guarantor (as applicable) in a pro
rata amount based on the net assets of each Subsidiary Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company's obligations with respect to the Debt Securities or any other Subsidiary Guarantor's obligations with respect to its Guarantee. 


[Remainder of This Page Intentionally Left Blank.]


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

 






 



					
	 
	 	  CLOUD PEAK ENERGY INC.,

as the Company

	 
	 	 By:
	 	  








 
	 
	 	 Name:
	 	  







 
	 
	 	 Title:
	 	  







 
	 
	 	  CLOUD PEAK ENERGY RESOURCES LLC

	 
	 	 CORDERO MINING LLC

	 
	 	 CORDERO MINING HOLDINGS LLC

	 
	 	 CABALLO ROJO LLC

	 
	 	 CABALLO ROJO HOLDINGS LLC

	 
	 	 NERCO LLC

	 
	 	 NERCO COAL LLC

	 
	 	 ANTELOPE COAL LLC

	 
	 	 SPRING CREEK COAL LLC

	 
	 	 NERCO COAL SALES LLC

	 
	 	 PROSPECT LAND AND DEVELOPMENT LLC

	 
	 	 NORTHERN COAL TRANSPORTATION LLC

	 
	 	 KENNECOTT COAL SALES LLC

	 
	 	 RESOURCE DEVELOPMENT LLC

	 
	 	 WESTERN MINERALS LLC

	 
	 	 SEQUATCHIE VALLEY COAL CORPORATION

	 
	 	 CLOUD PEAK ENERGY SERVICES COMPANY,
 as Subsidiary Guarantors

	 
	 	 By:
	 	  








 
	 
	 	 Name:
	 	  







 
	 
	 	 Title:
	 	  







 




 

 52








 








































 
 

  ANNEX A    
    


 
    NOTATION OF GUARANTEE    
    


        Each of the Subsidiary Guarantors (which term includes any successor Person under the Indenture), has fully, unconditionally and
absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual payment of the principal of, and premium, if any, and interest on
the Debt Securities and all other amounts due and payable under the Indenture and the Debt Securities by the Company. 


        The
obligations of the Subsidiary Guarantors to the Holders of Debt Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article XIV of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. 

 






 



					
	 	 	[NAME OF SUBSIDIARY GUARANTOR(S)]
	

 	
 	
By:	
 	
 







 
	 	 	Name:	 	  







 
	 	 	Title:	 	 







 




 

 A-1











QuickLinks



Exhibit 4.11


CLOUD PEAK ENERGY INC., as Issuer, THE SUBSIDIARY GUARANTORS PARTY HERETO, as Subsidiary Guarantors, and [ ], as Trustee INDENTURE Dated as of Subordinated Debt Securities


CROSS-REFERENCE TABLE


TABLE OF CONTENTS


RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS

ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE

ARTICLE II DEBT SECURITIES


TRUSTEE'S CERTIFICATE OF AUTHENTICATION



ARTICLE III REDEMPTION OF DEBT SECURITIES

ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY


ARTICLE V HOLDERS' LISTS AND REPORTS BY THE TRUSTEE

ARTICLE VI REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT


ARTICLE VII CONCERNING THE TRUSTEE



ARTICLE VIII CONCERNING THE HOLDERS

ARTICLE IX SUPPLEMENTAL INDENTURES

ARTICLE X CONSOLIDATION, MERGER, SALE OR CONVEYANCE

ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS


ARTICLE XII SUBORDINATION OF DEBT SECURITIES AND GUARANTEES

ARTICLE XIII MISCELLANEOUS PROVISIONS


ARTICLE XIV GUARANTEE




ANNEX A


NOTATION OF GUARANTEE