Exhibit 4.3






Exhibit 4.3




      




Hanesbrands Inc.




 






INDENTURE




Dated as of August 1, 2008




 






Branch Banking and Trust Company




Trustee




      




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE 
	 	 	1	 
	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Other Definitions
	 	 	5	 
	Section 1.3. Incorporation by Reference of Trust Indenture Act
	 	 	6	 
	Section 1.4. Rules of Construction
	 	 	6	 
	 
	 	 	 	 
	ARTICLE II. THE SECURITIES 
	 	 	7	 
	 
	 	 	 	 
	Section 2.1. Issuable in Series
	 	 	7	 
	Section 2.2. Establishment of Terms of Series of Securities
	 	 	7	 
	Section 2.3. Execution and Authentication
	 	 	9	 
	Section 2.4. Registrar and Paying Agent
	 	 	10	 
	Section 2.5. Paying Agent to Hold Money in Trust
	 	 	11	 
	Section 2.6. Securityholder Lists
	 	 	11	 
	Section 2.7. Transfer and Exchange
	 	 	12	 
	Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	12	 
	Section 2.9. Outstanding Securities
	 	 	13	 
	Section 2.10. Treasury Securities
	 	 	13	 
	Section 2.11. Temporary Securities
	 	 	13	 
	Section 2.12. Cancellation
	 	 	14	 
	Section 2.13. Defaulted Interest
	 	 	14	 
	Section 2.14. Special Record Dates
	 	 	14	 
	Section 2.15. Global Securities
	 	 	15	 
	Section 2.16. CUSIP Numbers
	 	 	16	 
	 
	 	 	 	 
	ARTICLE III. REDEMPTION 
	 	 	16	 
	 
	 	 	 	 
	Section 3.1. Notice to Trustee
	 	 	16	 
	Section 3.2. Selection of Securities to be Redeemed or Repurchased
	 	 	16	 
	Section 3.3. Notice of Redemption
	 	 	17	 
	Section 3.4. Effect of Notice of Redemption
	 	 	17	 
	Section 3.5. Deposit of Redemption Price
	 	 	18	 
	Section 3.6. Securities Redeemed in Part
	 	 	18	 
	 
	 	 	 	 
	ARTICLE IV. COVENANTS 
	 	 	18	 
	 
	 	 	 	 
	Section 4.1. Payment of Principal and Interest
	 	 	18	 
	Section 4.2. Maintenance of Office or Agency
	 	 	18	 
	Section 4.3. SEC Reports
	 	 	19	 
	Section 4.4. Compliance Certificate
	 	 	20	 
	Section 4.5. Taxes

	 	 	20	 
	Section 4.6. Stay, Extension and Usury Laws
	 	 	20	 
	Section 4.7. Corporate Existence
	 	 	21	 
	 
	 	 	 	 
	ARTICLE V. SUCCESSORS 
	 	 	21	 
	 
	 	 	 	 
	Section 5.1. Merger, Consolidation, or Sale of Assets
	 	 	21	 






i









 






	 	 	 	 	 
	 	 	 	Page	 
	Section 5.2. Successor Corporation Substituted
	 	 	22	 
	 
	 	 	 	 
	ARTICLE VI. DEFAULTS AND REMEDIES 
	 	 	22	 
	 
	 	 	 	 
	Section 6.1. Events of Default
	 	 	22	 
	Section 6.2. Acceleration
	 	 	24	 
	Section 6.3. Other Remedies
	 	 	24	 
	Section 6.4. Waiver of Past Defaults
	 	 	24	 
	Section 6.5. Control by Majority
	 	 	25	 
	Section 6.6. Limitation on Suits
	 	 	25	 
	Section 6.7. Rights of Holders of Securities to Receive Payment
	 	 	25	 
	Section 6.8. Collection Suit by Trustee
	 	 	26	 
	Section 6.9. Trustee May File Proofs of Claim
	 	 	26	 
	Section 6.10. Priorities
	 	 	26	 
	Section 6.11. Undertaking for Costs
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VII. TRUSTEE 
	 	 	27	 
	 
	 	 	 	 
	Section 7.1. Duties of Trustee
	 	 	27	 
	Section 7.2. Rights of Trustee
	 	 	28	 
	Section 7.3. Individual Rights of Trustee
	 	 	30	 
	Section 7.4. Trustee’s Disclaimer
	 	 	30	 
	Section 7.5. Notice of Defaults
	 	 	30	 
	Section 7.6. Reports by Trustee to Holders
	 	 	30	 
	Section 7.7. Compensation and Indemnity
	 	 	30	 
	Section 7.8. Replacement of Trustee
	 	 	31	 
	Section 7.9. Successor Trustee by Merger, etc.
	 	 	32	 
	Section 7.10. Eligibility; Disqualification
	 	 	32	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	32	 
	 
	 	 	 	 
	ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE 
	 	 	32	 
	 
	 	 	 	 
	Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	32	 
	Section 8.2. Legal Defeasance and Discharge
	 	 	33	 
	Section 8.3. Covenant Defeasance
	 	 	33	 
	Section 8.4. Conditions to Legal or Covenant Defeasance
	 	 	34	 
	Section 8.5. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions
	 	 	35	 
	Section 8.6. Repayment to Company
	 	 	36	 
	Section 8.7. Reinstatement
	 	 	36	 
	 
	 	 	 	 
	ARTICLE IX. AMENDMENTS AND WAIVERS 
	 	 	36	 
	 
	 	 	 	 
	Section 9.1. Without Consent of Holders
	 	 	36	 
	Section 9.2. With Consent of Holders
	 	 	37	 
	Section 9.3. Limitations
	 	 	38	 
	Section 9.4. Compliance with Trust Indenture Act
	 	 	38	 
	Section 9.5. Revocation and Effect of Consents
	 	 	39	 
	Section 9.6. Notation on or Exchange of Securities
	 	 	39	 
	Section 9.7. Trustee Protected
	 	 	39	 
	 
	 	 	 	 
	ARTICLE X. GUARANTEES 
	 	 	39	 

	 
	 	 	 	 
	Section 10.1.
Guarantees
	 	 	39	 






ii









 






	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE XI. SATISFACTION AND DISCHARGE 
	 	 	40	 
	 
	 	 	 	 
	Section 11.1. Satisfaction and Discharge
	 	 	40	 
	Section 11.2. Application of Trust Money
	 	 	41	 
	 
	 	 	 	 
	ARTICLE XII. MISCELLANEOUS 
	 	 	41	 
	 
	 	 	 	 
	Section 12.1. Trust Indenture Act Controls
	 	 	41	 
	Section 12.2. Notices
	 	 	41	 
	Section 12.3. Communication by Holders with Other Holders
	 	 	42	 
	Section 12.4. Certificate and Opinion as to Conditions Precedent
	 	 	42	 
	Section 12.5. Statements Required in Certificate or Opinion
	 	 	43	 
	Section 12.6. Rules by Trustee and Agents
	 	 	43	 
	Section 12.7. Legal Holidays
	 	 	43	 
	Section 12.8. No Recourse Against Others
	 	 	43	 
	Section 12.9. Counterparts
	 	 	43	 
	Section 12.10. Governing Laws
	 	 	44	 
	Section 12.11. No Adverse Interpretation of Other Agreements
	 	 	44	 
	Section 12.12. Successors
	 	 	44	 
	Section 12.13. Severability
	 	 	44	 
	Section 12.14. Table of Contents, Headings, Etc.
	 	 	44	 
	Section 12.15. Securities in a Foreign Currency
	 	 	44	 
	Section 12.16. Judgment Currency
	 	 	45	 
	 
	 	 	 	 
	ARTICLE XIII. SINKING FUNDS 
	 	 	45	 
	 
	 	 	 	 
	Section 13.1. Applicability of Article
	 	 	45	 
	Section 13.2. Satisfaction of Sinking Fund Payments with Securities
	 	 	46	 
	Section 13.3. Redemption of Securities for Sinking Fund
	 	 	46	 






iii









 





HANESBRANDS INC.




Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of August 1, 2008




	 	 	 	 	 
	§  310(a)(1)
	 	 	 	7.10
	(a)(2)
	 	 	 	7.10
	(a)(3)
	 	 	 	Not Applicable
	(a)(4)
	 	 	 	Not Applicable
	(a)(5)
	 	 	 	7.10
	(b)
	 	 	 	7.10
	§  311(a)
	 	 	 	7.11
	(b)
	 	 	 	7.11
	(c)
	 	 	 	Not Applicable
	§  312(a)
	 	 	 	2.6
	(b)
	 	 	 	12.3
	(c)
	 	 	 	12.3
	§ 313(a)
	 	 	 	7.6
	(b)(1)
	 	 	 	7.6
	(b)(2)
	 	 	 	7.6
	(c)(1)
	 	 	 	7.6
	(d)
	 	 	 	7.6
	§  314(a)
	 	 	 	4.3, 4.4
	(b)
	 	 	 	Not Applicable
	(c)(1)
	 	 	 	12.4
	(c)(2)
	 	 	 	12.4
	(c)(3)
	 	 	 	Not Applicable
	(d)
	 	 	 	Not Applicable
	(e)
	 	 	 	12.5
	(f)
	 	 	 	Not Applicable
	§  315(a)
	 	 	 	7.1
	(b)
	 	 	 	7.5
	(c)
	 	 	 	7.1
	(d)
	 	 	 	7.1
	(e)
	 	 	 	6.11
	§ 316(a)
	 	 	 	2.10
	(a)(1)(A)
	 	 	 	6.5
	(a)(1)(B)
	 	 	 	6.4
	(b)
	 	 	 	6.7
	(c)
	 	 	 	2.14, 9.5(b)
	§ 317(a)(1)
	 	 	 	6.8
	(a)(2)
	 	 	 	6.9
	(b)
	 	 	 	2.5
	§ 318(a)
	 	 	 	12.1






iv









 






 




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




v









 





          Indenture dated as of August 1, 2008 between Hanesbrands Inc., a Maryland corporation
(“Company”), and Branch Banking and Trust Company, as trustee (“Trustee”).




          Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Securities issued under this Indenture.




ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.1. Definitions.



          “Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.




          “Affiliate” of any specified person means any other person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified person. For the
purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such person, whether through the ownership of voting securities or by agreement or
otherwise.




          “Agent” means any Registrar, Paying Agent or Service Agent.




          “Authorized Newspaper” means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by
the Trustee shall constitute a sufficient publication of such notice.




          “Bearer” means anyone in possession from time to time of a Bearer Security.




          “Bearer Security” means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.




          “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.




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




          “Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday,




 









 







Sunday or a legal holiday in The City of New York on which banking institutions are authorized
or required by law, regulation or executive order to close.




          “Capital Stock” means:




          (1) in the case of a corporation, corporate stock;




          (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;




          (3) in the case of a partnership or limited liability company, partnership interests (whether
general or limited) or membership interests; and




          (4) any other interest or participation that confers on a person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing person, but excluding from
all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.




          “Company” means the party named as such above until a successor replaces it and thereafter
means the successor.




          “Company Order” means a written order signed in the name of the Company by two Officers, one
of whom must be the Company’s principal executive officer, principal financial officer or principal
accounting officer.




          “Company Request” means a written request signed in the name of the Company by its Chief
Executive Officer, the President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.




          “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered.




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




          “Depository” means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the person designated as Depository for
such Series by the Company, which Depository shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such person, “Depository” as used with
respect to the Securities of any Series shall mean the Depository with respect to the Securities of
such Series.




          “Discount Security” means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.




          “Dollars”
and “$” means the currency of The United States of America.




2









 





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




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




          “Foreign Currency” means any currency or currency unit issued by a government other than the
government of The United States of America.




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




          “Global Security” or “Global Securities” means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.




          “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.




          “Guarantor” means any person that issues a guarantee of the Securities, either on the Issue
Date or after the Issue Date in accordance with the terms of this Indenture; provided, that upon
the release and discharge of such person from its guarantee in accordance with this Indenture, such
person shall cease to be a Guarantor.




          “Hedging Obligations” means, with respect to any specified person, the obligations of such
person under:




          (1) currency exchange, interest rate or commodity swap agreements, currency exchange, interest
rate or commodity cap agreements and currency exchange, interest rate or commodity collar
agreements and




          (2) (i) agreements or arrangements designed to protect such person against fluctuations in
currency exchange, interest rates, commodity prices or commodity transportation or transmission
pricing or availability; (ii) any netting arrangements, power purchase and sale agreements, fuel
purchase and sale agreements, swaps, options and other agreements, in each case, that fluctuate in
value with fluctuations in energy, power or gas prices; and (iii) agreements or arrangements for
commercial or trading activities with respect to the purchase, transmission, distribution, sale,
lease or hedge of any energy related commodity or service.




          “Holder” or “Securityholder” means a person in whose name a Security is registered or the
holder of a Bearer Security.




3









 





          “Indenture” means this Indenture as amended or supplemented from time to time and shall
include the form and terms of particular Series of Securities established as contemplated
hereunder.




          “interest” with respect to any Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.




          “Issue Date” means with respect to any Series of Securities the first date such Securities are
issued under this Indenture.




          “Lien” means, with respect to any asset:




          (1) any mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise), pledge,
hypothecation, encumbrance, restriction, collateral assignment, charge or security interest in, on
or of such asset;




          (2) the interest of a vendor or a lessor under any conditional sale agreement, capital lease
or title retention agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset; and




          (3) in the case of Equity Interests or debt securities, any purchase option, call or similar
right of a third party with respect to such Equity Interests or debt securities.




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




          “Officer” means the Chief Executive Officer, the Chief Financial Officer, the President, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of
the Company.




          “Officers’ Certificate” means a certificate signed by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal accounting officer.




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




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




          “principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.




          “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office and also
means, with respect to a particular corporate trust matter, any other officer to




4









 




whom any corporate trust matter is referred because of his or her knowledge of and familiarity
with a particular subject.




          “SEC” means the Securities and Exchange Commission.




          “Securities” means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.




          “Series” or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.




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




          “Subsidiary” of any specified person means any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other Subsidiaries of that person or a combination thereof.




          “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the
date of this Indenture; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.




          “Trustee” means the person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean each person who is then a Trustee hereunder, and if
at any time there is more than one such person, “Trustee” as used with respect to the Securities of
any Series shall mean the Trustee with respect to Securities of that Series.




     Section 1.2. Other Definitions.



	 	 	 	 	 
	 	 	DEFINED IN
	TERM	 	SECTION
	“Bankruptcy Law”
	 	 	6.1	 
	“Custodian”
	 	 	6.1	 
	“Event of Default”
	 	 	6.1	 
	“Journal”
	 	 	12.15	 
	“Judgment Currency”
	 	 	12.16	 
	“Legal Holiday”
	 	 	12.7	 
	“mandatory sinking fund payment”
	 	 	13.1	 
	“Market Exchange Rate”
	 	 	12.15	 
	“New York Banking Day”
	 	 	12.16	 






5









 






	 	 	 	 	 
	 	 	DEFINED IN
	TERM	 	SECTION
	“optional sinking fund payment”
	 	 	13.1	 
	“Paying Agent”
	 	 	2.4	 
	“Registrar”
	 	 	2.4	 
	“Required Currency”
	 	 	12.16	 
	“Service Agent”
	 	 	2.4	 
	“successor person”
	 	 	5.1	 






     Section 1.3. Incorporation by Reference of Trust Indenture Act.



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




          “Commission” means the SEC.




          “indenture securities” means the Securities.




          “indenture security holder” means a Securityholder.




          “indenture to be qualified” means this Indenture.




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





“obligor” on the indenture securities means the Company and any successor
obligor upon the Securities.



          All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.




     Section 1.4. 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 generally accepted accounting principles;




     (c) references to “generally accepted accounting principles” and “GAAP” shall mean
generally accepted accounting principles in effect as of the time when and for the period as
to which such accounting principles are to be applied;




     (d) “or” is not exclusive;




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




     (f) provisions apply to successive events and transactions.



6









 





ARTICLE II.

THE SECURITIES




     Section 2.1. Issuable in Series.



          The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of
a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers’ Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a Series to be issued from
time to time, the Board Resolution, Officers’ Certificate or supplemental indenture detailing the
adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide
for the method by which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ between Series in
respect of any matters, provided that all Series of Securities shall be equally and ratably
entitled to the benefits of the Indenture.




     Section 2.2. Establishment of Terms of Series of Securities.



          At or prior to the issuance of any Securities within a Series, the following shall be
established by or pursuant to a Board Resolution, and set forth or determined in the manner
provided in a Board Resolution, supplemental indenture or an Officers’ Certificate pursuant to
authority granted under a Board Resolution:





     (a) the title of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other Series);




     (b) the price or prices (expressed as a percentage of the principal amount thereof)
at which the Securities of the Series will be issued;




     (c) any limit upon the aggregate principal amount of the Securities of the Series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);




     (d) whether the Securities rank as senior subordinated Securities or subordinated
Securities or any combination thereof and the terms of any such subordination;




     (e) the form and terms of any guarantee of any Securities of the series;




     (f) the terms and conditions, if any, upon which the Securities of the series shall
be exchanged for or converted into other securities of the Company or securities of another
person;




     (g) the provisions, if any, relating to any security provided for the Securities of
the Series;



7









 






     (h) the date or dates on which the principal of the Securities of the Series is
payable;




     (i) the rate or rates (which may be fixed or variable) per annum or, if applicable,
the method used to determine such rate or rates (including, but not limited to, any currency
exchange rate, commodity, commodity index, stock exchange index or financial index) at which
the Securities of the Series shall bear interest, if any, the date or dates from which such
interest, if any, shall accrue, or the method for determining the date or dates from which
interest will accrue, the date or dates on which such interest, if any, shall commence and
be payable and any regular record date for the interest payable on any interest payment
date;




     (j) the manner in which the amounts of payment of principal of or interest, if any,
on the Securities of the Series will be determined, if such amounts may be determined by
reference to an index based on a currency or currencies or by reference to a currency
exchange rate, commodity, commodity index, stock exchange index or financial index;




     (k) the place or places where the principal of and interest, if any, on the
Securities of the Series shall be payable, where the Securities of such Series may be
surrendered for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such Series and this Indenture may be
served, and the method of such payment, if by wire transfer, mail or other means;




     (l) if applicable, the period or periods within which, the price or prices at which
and the terms and conditions upon which the Securities of the Series may be redeemed, in
whole or in part, at the option of the Company;




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




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




     (o) the forms of the Securities of the Series in bearer or fully registered form
(and, if in fully registered form, whether the Securities of the Series shall be issued in
whole or in part in the form of a Global Security or Securities, and the terms and
conditions, if any, upon which such Global Security or Securities may be exchanged in whole
or in part for other individual Securities;




     (p) any depositories, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to Securities of such Series if other than those
appointed herein;




     (q) the Trustee for the series of Securities;



8









 






     (r) if other than the principal amount thereof, the portion of the principal amount
of the Securities of the Series that shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.2;




     (s) any addition to or change in the covenants set forth in Articles IV or V which
applies to Securities of the Series;




     (t) any addition to or change in the Events of Default which applies to any
Securities of the Series and any change in the right of the Trustee or the requisite Holders
of such Securities to declare the principal amount thereof due and payable pursuant to
Section 6.2;




     (u) the currency of denomination of the Securities of the Series, which may be
Dollars or any Foreign Currency, and if such currency of denomination is a composite
currency, the agency or organization, if any, responsible for overseeing such composite
currency;




     (v) the designation of the currency, currencies or currency units in which payment
of the principal of and interest, if any, on the Securities of the Series will be made;




     (w) if payments of principal of or interest, if any, on the Securities of the Series
are to be made in one or more currencies or currency units other than that or those in which
such Securities are denominated, the manner in which the exchange rate with respect to such
payments will be determined; and




     (x) any other terms of the Securities of the Series (which terms may modify,
supplement or delete any provision of this Indenture with respect to such Series; provided,
however, that no such term may modify or delete any provision hereof if imposed by the TIA;
and provided, further, that any modification or deletion of the rights, duties or immunities
of the Trustee hereunder shall have been consented to in writing by the Trustee).



          All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers’ Certificate.




     Section 2.3. Execution and Authentication.



          Two Officers shall sign the Securities for the Company by manual or facsimile signature.




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




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          A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.




          The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or
Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Company
or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in
writing. Each Security shall be dated the date of its authentication unless otherwise provided by
a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.




          The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section
2.2, except as provided in Section 2.8.




          Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers’ Certificate complying with Section 11.4, and (c)
an Opinion of Counsel complying with Section 11.4.




          The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken
lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of
Securities.




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




     Section 2.4. Registrar and Paying Agent.



          The Company shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities
of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of
such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where
notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to
each Series of Securities and to their transfer and exchange. The Company will give prompt written
notice to the Trustee of the name and address, and any



10









 






change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any
time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent
or shall fail to furnish the Trustee with the name and 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 such presentations,
surrenders, notices and demands.




          The Company may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in
each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the name or address of any such co-registrar, additional paying agent or
additional service agent. The term “Registrar” includes any co-registrar; the term “Paying Agent”
includes any additional paying agent; and the term “Service Agent” includes any additional service
agent.




          The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent
for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued.




     Section 2.5. Paying Agent to Hold Money in Trust.



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




     Section 2.6. Securityholder Lists.



          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders of each Series of Securities and
shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least ten days before each interest payment date and at such other times
as the Trustee may request in writing a list, in such form and as of such date as the Trustee may
reasonably require, of the names and addresses of Securityholders of each Series of Securities.




11









 





     Section 2.7. Transfer and Exchange.



          Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).




          Neither the Company nor the Registrar shall be required (a) to issue, register the transfer
of, or exchange Securities of any Series for the period beginning at the opening of business
fifteen days immediately preceding the mailing of a notice of redemption of Securities of that
Series selected for redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected, called or being
called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.




     Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.



          If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.




          If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.




          In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.




          Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.




          Every new Security of any Series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time



12









 






enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series duly issued hereunder.




          The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.




     Section 2.9. Outstanding Securities.



          Subject to Section 2.10, the Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section as not outstanding.




          If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.




          If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of
the Company) holds on the Maturity of Securities of a Series money sufficient to pay such
Securities payable on that date, then on and after that date such Securities of the Series cease to
be outstanding and interest on them ceases to accrue.




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




          In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount 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 6.2.




     Section 2.10. Treasury Securities.



          In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver,
Securities of a Series owned by the Company or an Affiliate of the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent or waiver only Securities of a
Series that the Trustee knows are so owned shall be so disregarded.




     Section 2.11. Temporary Securities.



          Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the



13









 






Company shall prepare and the Trustee upon request shall authenticate definitive Securities of
the same Series and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary securities shall have the same rights under this Indenture as the definitive Securities.




     Section 2.12. Cancellation.



          The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment, replacement or cancellation and deliver such canceled Securities
to the Company, unless the Company otherwise directs; provided that the Trustee shall not
be required to destroy Securities. The Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation.




     Section 2.13. Defaulted Interest.



          If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted
interest, to the persons who are Securityholders of the Series on a subsequent special record date.
The Company shall fix the record date and payment date. At least 10 days before the record date,
the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states
the record date, the payment date and the amount of interest to be paid. The Company may pay
defaulted interest in any other lawful manner.




     Section 2.14. Special Record Dates.



          (a) The Company may, but shall not be obligated to, set a record date for the purpose of
determining the identity of Holders entitled to consent to any supplement, amendment or waiver
permitted by this Indenture. If a record date is fixed, the Holders of such Series and Securities
outstanding on such record date, and no other Holders, shall be entitled to consent to such
supplement, amendment or waiver or revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or effective for more than 90 days
after such record date unless consents from Holders of the principal amount of such Series and
Securities required hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.




          (b) The Company may, but shall not be obligated to, fix any day as a record date for the
purpose of determining the Holders of any Series of Securities entitled to join in the giving or
making of any notice of Default, any declaration of acceleration, any request to institute
proceedings or any other similar direction. If a record date is fixed, the Holders of such Series
and Securities outstanding on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders remain Holders after
such record date; provided, however, that no such action shall be effective hereunder unless taken
on or prior to the date 90 days after such record date.





14









 





     Section 2.15. Global Securities.



          2.15.1. Terms of Securities. A Board Resolution, a supplemental indenture hereto
or an Officers’ Certificate shall establish whether the Securities of a Series shall be issued in
whole or in part in the form of one or more Global Securities and the Depository for such Global
Security or Securities.




          2.15.2. Transfer and Exchange. Notwithstanding any provisions to the contrary
contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of
Holders other than the Depository for such Security or its nominee only if (i) such Depository
notifies the Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Company fails to appoint a successor Depository registered
as a clearing agency under the Exchange Act within 90 days of such event, (ii) the Company executes
and delivers to the Trustee an Officers’ Certificate to the effect that such Global Security shall
be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such
Global Security shall have happened and be continuing. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as
the Depository shall direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.




          Except as provided in this Section 2.15.2, a Global Security may not be transferred except as
a whole by the Depository with respect to such Global Security to a nominee of such Depository, by
a nominee of such Depository to such Depository or another nominee of such Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a successor
Depository.




          2.15.3. Legend. Any Global Security issued hereunder shall bear a legend in
substantially the following form:




          “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 issuer 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 may be requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest herein.”




          “Transfer 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 limited to transfers made
in accordance with the restrictions set forth in the Indenture referred to herein.”




          2.15.4. Acts of Holders. The Depository, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under the
Indenture.




15









 








          2.15.5. Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof.




          2.15.6. Consents, Declaration and Directions. Except as provided in Section
2.15.5, the Company, the Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such Series represented by a Global Security as shall be
specified in a written statement of the Depository with respect to such Global Security, for
purposes of obtaining any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.




     Section 2.16. CUSIP Numbers.



          The Company in issuing the 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 Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of identification printed on
the Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers.




ARTICLE III.

REDEMPTION




     Section 3.1. Notice to Trustee.



          The Company may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is obligated to
redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the
terms of such Securities, it shall notify the Trustee of the redemption date and the principal
amount of Series of Securities to be redeemed. The Company shall give the notice at least 45 days
before the redemption date (or such shorter notice as may be acceptable to the Trustee).




     Section 3.2. Selection of Securities to be Redeemed or Repurchased.



          Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, if less than all the Securities of a Series are to be
redeemed or repurchased, the Trustee shall select the Securities of the Series to be redeemed or
repurchased on a pro rata basis unless otherwise required by law or applicable stock exchange
requirements.




          In the event of partial redemption or purchase by lot, the Trustee shall make the selection
from Securities of the Series outstanding not previously called for redemption or repurchase. The
Trustee may select for redemption or repurchase portions of the principal of Securities of the
Series that have denominations larger than $1,000, or with respect to Securities



16









 






of any Series issuable in other denominations pursuant to Section 2.2 the minimum principal
denomination for such series. Securities of the Series and portions of them it selects shall be in
amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.2, the minimum principal denomination for
each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities
of a Series called for redemption or repurchase also apply to portions of Securities of that Series
called for redemption or repurchase.




     Section 3.3. Notice of Redemption.



          Unless otherwise indicated for a particular Series by Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, at least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed and if any Bearer Securities are outstanding, publish on one
occasion a notice in an Authorized Newspaper, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of
the Series of Securities or a satisfaction and discharge of this Indenture pursuant to Articles 8
or 11 hereof.




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





     (a) the redemption date;




     (b) the redemption price;




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




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




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




     (f) the CUSIP number, if any; and




     (g) any other information as may be required by the terms of the particular Series
or the Securities of a Series being redeemed.



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




     Section 3.4. Effect of Notice of Redemption.



          Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the



17









 






redemption date; provided that installments of interest whose Stated Maturity is on or
prior to the redemption date shall be payable to the Holders of such Securities (or one or more
predecessor Securities) registered at the close of business on the relevant record date therefor
according to their terms and the terms of this Indenture.




     Section 3.5. Deposit of Redemption Price.



          On or before the redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date.




     Section 3.6. Securities Redeemed in Part.



          Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the
Holder a new Security of the same Series and the same maturity equal in principal amount to the
unredeemed portion of the Security surrendered.




ARTICLE IV.

COVENANTS




     Section 4.1. Payment of Principal and Interest.



          The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay or cause to be paid the principal of, premium, if any, and interest on, the
Securities of that Series on the dates and in the manner provided in such Securities. Principal,
premium, if any, and interest on any Series of Securities will be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 12:00 p.m.
Eastern Time on the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and interest then due.




          The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal with respect to such Securities at the rate equal to 1% per annum in
excess of the then applicable interest rate on such Securities to the extent lawful; it will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the same rate to the
extent lawful.




     Section 4.2. Maintenance of Office or Agency.



          The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will maintain an office or agency (which may be an office of the Trustee for such
Securities or an affiliate of such Trustee, Registrar for such Securities or co-registrar) where
such Securities may be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of such Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee for such Securities of the location, and
any change in the location, of such office or agency. If at any time the Company



18









 






fails to maintain any such required office or agency or fails to furnish such Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of such Trustee.




          The Company may also from time to time designate one or more other offices or agencies where
Holders of a Series of Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations. The Company will give prompt written notice to
the Trustee for such Series of Securities of any such designation or rescission and of any change
in the location of any such other office or agency.




          With respect to each Series of Securities, the Company hereby designates the Corporate Trust
Office of the Trustee for such Securities as one such office or agency of the Company in accordance
with Section 2.5 hereof.




     Section 4.3. SEC Reports.



          (a) Whether or not required by the rules and regulations of the Commission, so long as any
Series of Securities are outstanding, if not filed electronically through the SEC’s Electronic Data
Gathering, Analysis, and Retrieval System (or any successor system), the Company will furnish to
the Holders of such Securities or cause the Trustee with respect to such Series of Securities
(provided that the Company shall reimburse the Trustee for its out-of-pocket expenses associated
therewith) to furnish to the Holders of such Securities, within the time periods specified in the
Commission’s rules and regulations:




          (1) all quarterly and annual reports that would be required to be filed with the Commission on
Forms 10-Q and 10-K if the Company were required to file reports, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the
annual information only, a report thereon by the Company’s independent registered public accounting
firm; and




          (2) all current reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports.




          In addition, the Company will file a copy of each of the reports referred to in clauses (1)
and (2) above with the Commission for public availability within the time periods specified in the
rules and regulations applicable to such reports (unless the SEC will not accept such a filing) and
will post the reports on its website within those time periods. The Company will at all times
comply with TIA § 314(a).




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




19









 








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




     Section 4.4. Compliance Certificate.



          (a) The Company and each guarantor of any Series of Securities (to the extent that such
guarantor is so required under the TIA) shall deliver to the Trustee with respect to such Series,
within 120 days after the end of each fiscal year, an Officers’ Certificate stating that a review
of the activities of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of his or her knowledge
the Company has kept, observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all
such Defaults or Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Series of Securities is 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.




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




     Section 4.5. Taxes.



          The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all
material taxes, assessments, and governmental levies except such as are contested in good faith and
by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of such Securities.




     Section 4.6. Stay, Extension and Usury Laws.



          The Company covenants and agrees for the benefit of the Holders of each Series of Securities
(to the extent that it may lawfully do so) that it will not, and each guarantor of such Securities
will not, at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and the Company and each
such guarantor (to the extent that it may lawfully do so) hereby expressly



20









 






waives all benefit or advantage of any such law, and covenants that it will not, by resort to
any such law, hinder, delay or impede the execution of any power herein granted to the Trustee for
such Securities, but will suffer and permit the execution of every such power as though no such law
has been enacted.




     Section 4.7. Corporate Existence.



          Subject to Article V hereof, the Company covenants and agrees for the benefit of the Holders
of each Series of Securities that it shall do or cause to be done all things necessary to preserve
and keep in full force and effect:




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




          (2) the rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other existence of any of
its Subsidiaries, if at least two Officers of the Company, one of which is the Chief Executive
Officer or the Chief Financial Officer, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the Holders of such Securities.




ARTICLE V.

SUCCESSORS




     Section 5.1. Merger, Consolidation, or Sale of Assets.



          The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it shall not, directly or indirectly: (i) consolidate or merge with or into another person
(whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of the Company and its
Subsidiaries taken as a whole, in one or more related transactions, to another person, unless:




          (1) either:




          (A) the Company is the surviving corporation; or




          (B) the person formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made
is a corporation organized or existing under the laws of the United States, any state of the United
States or the District of Columbia;




          (2) the person formed by or surviving any such consolidation or merger (if other than the
Company) or the person to which such sale, assignment, transfer, conveyance or other disposition
has been made assumes all the obligations of the Company under such




21









 







Securities and this Indenture pursuant to agreements reasonably satisfactory to the Trustee
for such Securities; and




          (3) immediately after such transaction, no Default or Event of Default exists.




          In addition, the Company will not, directly or indirectly, lease all or substantially all of
its properties or assets, in one or more related transactions, to any other person. This Section
5.1 will not apply to:




          (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the
Company in another jurisdiction; or




          (2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other
disposition of assets between or among the Company and its Subsidiaries.




     Section 5.2. Successor Corporation Substituted.



          Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of the Company in a
transaction that is subject to, and that complies with the provisions of, Section 5.1 hereof, the
successor person formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed
to, and be substituted for (so that from and after the date of such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the successor person and not to the Company), and
may exercise every right and power of the Company under this Indenture with the same effect as if
such successor person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the principal of and
interest on any Series of Securities except in the case of a sale of all of the Company’s assets in
a transaction that is subject to, and that complies with the provisions of, Section 5.1 hereof.




ARTICLE VI.

DEFAULTS AND REMEDIES




     Section 6.1. Events of Default.



          “Event of Default,” wherever used herein with respect to Securities of any Series, means any
one of the following events, unless in the establishing Board Resolution, supplemental indenture or
Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of
Default:





     (a) default in the payment of any interest on any Security of that Series when it
becomes due and payable, and continuance of such default for a period of 30 days; or




     (b) default in payment when due of the principal of, or premium, if any, on any
Security of that Series; or



22









 






     (c) default in the deposit of any sinking fund payment, when and as due in respect
of any Security of that Series; or




     (d) default in the performance or breach of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty that has been included in this
Indenture solely for the benefit of Series of Securities other than that Series), which
default continues uncured for the period and after the notice specified below;




     (e) the Company 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,




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




     (v) generally is unable to pay its debts as the same become due; or




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




     (i) is for relief against the Company in an involuntary case,




     (ii) appoints a Custodian of the Company or for all or substantially all of its
property, or




     (iii) orders the liquidation of the Company, and the order or decree remains
unstayed and in effect for 60 days; or




     (g) any other Event of Default provided with respect to Securities of that Series,
which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.2.



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




          A Default under clause (d) above is not an Event of Default with respect to a particular
series of Securities until the Trustee or the Holders of more than 50% in principal amount of the
then outstanding Securities of that series notify the Company of the Default and the Company does
not cure the Default within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a “Notice of Default.” Such notice
shall be given by the Trustee if so requested in writing by the Holders of more than 50% of the
principal amount of the then outstanding Securities of that series.




23









 








     Section 6.2. Acceleration.



          If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)) then in
every such case the Trustee or the Holders of more than 50% in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be specified in the terms of
such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and
accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of
Default specified in Section 6.1(e) or (f) shall occur, the principal amount (or specified amount)
of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder.




          At any time after such a declaration of acceleration with respect to any Series has been made,
the Holders of a majority in principal amount of the outstanding Securities of that Series, by
written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.




          No such rescission shall affect any subsequent Default or impair any right consequent thereon.




     Section 6.3. Other Remedies.



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




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




     Section 6.4. Waiver of Past Defaults.



          Holders of not less than a majority in aggregate principal amount of the then outstanding
Securities of any Series by notice to the Trustee for such Securities may on behalf of the Holders
of all of such Securities waive an existing Default or Event of Default with respect to such
Securities and its consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, such Securities (including in
connection with an offer to purchase); provided, however, that the Holders of a
majority in



24









 




aggregate principal amount of the then outstanding Securities of any Series may rescind an
acceleration of such Securities and its consequences, including any related payment default that
resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.




     Section 6.5. Control by Majority.



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




     Section 6.6. Limitation on Suits.



          A Holder of any Series of Securities may pursue a remedy with respect to this Indenture or
such Securities only if:




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




          (2) Holders of more than 50% in aggregate principal amount of the then outstanding Securities
of such Series make a written request to the Trustee for such Securities to pursue the remedy;




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




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




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




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




     Section 6.7. Rights of Holders of Securities to Receive Payment.



          Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
of any Series to receive payment of principal, premium, if any, and interest on such



25









 






Securities, on or after the respective due dates expressed in such Securities (including, if
applicable, in connection with an offer to purchase), or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.




     Section 6.8. Collection Suit by Trustee.



          If an Event of Default specified in Section 6.1(a), (b) or (c) hereof with respect to
Securities of any Series occurs and is continuing, the Trustee for such Securities is authorized to
recover judgment in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid on, such Securities
and interest on overdue principal and, to the extent lawful, interest and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents and counsel.




     Section 6.9. Trustee May File Proofs of Claim.



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




     Section 6.10. Priorities.



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




26









 








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




          Second: to Holders of such Securities for amounts due and unpaid on such Securities
for principal, premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal, premium, if any and
interest, respectively; and




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




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




     Section 6.11. Undertaking for Costs.



          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against any Trustee for any action taken or omitted by it as a trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Security pursuant to Section 6.7 hereof, or a suit by Holders of
more than 10% in aggregate principal amount of the then outstanding Securities of any Series.




ARTICLE VII.

TRUSTEE




     Section 7.1. Duties of Trustee.




     (a) Subject to Section 7.2(i), if an Event of Default has occurred and is
continuing, the Trustee shall exercise 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 man would exercise
or use under the circumstances in the conduct of his own affairs.




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




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




     (ii) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to
the Trustee and conforming to the requirements of this Indenture; however,
in the case of any such Officers’ Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the



27









 







Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this
Indenture.




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




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




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




     (iii) The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of any Series in
good faith in accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of such 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 the Securities of such Series.




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




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




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




     (g) No provision of this Indenture shall require the Trustee to risk its own funds
or otherwise incur any financial liability in the performance of any of its duties, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk is not
reasonably assured to it.




     (h) The Paying Agent, the Registrar and any authenticating agent shall be entitled
to the protections, immunities and standard of care as are set forth in paragraphs (a), (b)
and (c) of this Section with respect to the Trustee.



     Section 7.2. Rights of Trustee.




     (a) The Trustee may rely on and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been signed or



28









 







presented by the proper person. The Trustee need not investigate any fact or matter
stated in the document.




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




     (c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care. No Depository shall be
deemed an agent of the Trustee and the Trustee shall not be responsible for any act or
omission by any Depository.




     (d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers, provided
that the Trustee’s conduct does not constitute negligence or bad faith.




     (e) The Trustee may consult with counsel 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, suffered or omitted by it hereunder without negligence and in good faith and
in reliance thereon.




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




     (g) The Trustee may consult with counsel of its 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, suffered or omitted by it hereunder without negligence and in
good faith and in reliance thereon.




     (h) 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, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit.




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




     (j) The Trustee shall not be required to provide any bond or surety with respect to
the execution of these trusts and powers.



29









 






     Section 7.3. Individual Rights of Trustee.



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




     Section 7.4. Trustee’s Disclaimer.



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




     Section 7.5. Notice of Defaults.



          If a Default or Event of Default occurs and is continuing with respect to the Securities of
any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding,
publish on one occasion in an Authorized Newspaper, notice of a Default or Event of Default within
90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of Default in payment
of principal of or interest on any Security of any Series, the Trustee may withhold the notice if
and so long as its corporate trust committee or a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Securityholders of that Series.




     Section 7.6. Reports by Trustee to Holders.



          Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear on the register kept by the Registrar and, if
any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated as
of such May 15, in accordance with, and to the extent required under, TIA § 313.




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




     Section 7.7. Compensation and Indemnity.



          The Company shall pay to the Trustee from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and
counsel.




          The Company shall indemnify each of the Trustee and any predecessor Trustee (including the
cost of defending itself) against any loss, liability or expense, including taxes




30









 







(other than taxes based upon, measured by or determined by the income of the Trustee) incurred
by it except as set forth in the next paragraph in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. This indemnification shall apply to
officers, directors, employees, shareholders and agents of the Trustee.




          The Company need not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through
negligence or bad faith.




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




          When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(e) or (f) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.




          The provisions of this Section shall survive the termination of this Indenture.




     Section 7.8. Replacement of Trustee.



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




          The Trustee may resign with respect to the Securities of one or more Series by so notifying
the Company at least 30 days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with
respect to Securities of one or more Series if:





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




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




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




     (d) the Trustee becomes incapable of acting.



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



31









 






the successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.




          If a successor Trustee with respect to the Securities of any one or more Series does not take
office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee subject to the lien provided for in Section
7.7, 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 with respect to each Series of
Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail
a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities
are outstanding, publish such notice on one occasion in an Authorized Newspaper. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section
7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and
liabilities incurred by it prior to such replacement.




     Section 7.9. Successor Trustee by Merger, etc.



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




     Section 7.10. Eligibility; Disqualification.



          This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000
as set forth in its most recent published annual report of condition. The Trustee shall comply
with TIA § 310(b).




     Section 7.11. Preferential Collection of Claims Against Company.



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




ARTICLE VIII.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




     Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.


          The Company may at any time elect to have either Section 8.2 or 8.3 hereof be applied to all
outstanding Securities of any Series upon compliance with the conditions set forth below in this
Article 8.




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     Section 8.2. Legal Defeasance and Discharge.



          Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section
8.2, the Company and each guarantor, if any, of such Securities will, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from its or
their obligations with respect to all outstanding Securities of such Series (including the related
guarantees, if any) on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company and such guarantors will
be deemed to have paid and discharged the entire indebtedness represented by the outstanding
Securities of such Series (including the related guarantees, if any), which will thereafter be
deemed to be “outstanding” only for the purposes of Section 8.5 hereof and the other Sections of
this Indenture referred to in clauses (1) and (2) below, and to have satisfied all its or their
other obligations under such Securities, such guarantees, if any, and this Indenture (and the
Trustee for such Securities, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which will survive until
otherwise terminated or discharged hereunder:




          (1) the rights of Holders of outstanding Securities of such Series to receive payments in
respect of the principal of, or interest or premium, if any, on, such Securities when such payments
are due from the trust referred to in Section 8.4 hereof;




          (2) the Company’s obligations with respect to such Securities under Article 2 and Section 4.2
hereof;




          (3) the rights, powers, trusts, duties and immunities of the Trustee for such Securities
hereunder and the Company’s and the guarantors’, if any, obligations in connection therewith; and




          (4) this Article 8.




          Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 hereof.




     Section 8.3. Covenant Defeasance.



          Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section
8.3, the Company and each of the guarantors, if any, will, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, be released from each of their or its obligations under
the covenants contained in Sections 4.3, 4.4, 4.5, 4.6 and 4.7, Section 5.1, and covenants
specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in
accordance with Section 2.2, with respect to the outstanding Securities of the applicable Series on
and after the date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter,
“Covenant Defeasance”), and such Securities will thereafter be deemed not “outstanding” for the
purposes of any direction, waiver, consent or declaration or act of Holders of such Securities




33









 







(and the consequences of any thereof) in connection with such covenants, but will continue to
be deemed “outstanding” for all other purposes hereunder (it being understood that such Securities
will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the outstanding Securities of such Series, the Company may omit to
comply with and will have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply will not constitute a Default or an Event of
Default under Section 6.1 hereof, but, except as specified above, the remainder of this Indenture
and such Securities will be unaffected thereby. In addition, upon the Company’s exercise under
Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, Sections 6.1(d) or 6.1(g) hereof will not constitute
Events of Default.




     Section 8.4. Conditions to Legal or Covenant Defeasance.



          In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.2
or 8.3 hereof with respect to Securities of any Series:




          (1) the Company must irrevocably deposit with the Trustee for such Securities, in trust, for
the benefit of the Holders of such Securities, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized investment bank, appraisal firm, or firm of independent public accountants,
to pay the principal of, premium, if any, and interest on, the outstanding Securities of such
Series on the stated date for payment thereof or on the applicable redemption date, as the case may
be, and the Company must specify whether such Securities are being defeased to such stated date for
payment or to a particular redemption date;




          (2) in the case of an election under Section 8.2 hereof, the Company must deliver to the
Trustee for such Securities an Opinion of Counsel confirming that:




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




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




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




          (3) in the case of an election under Section 8.3 hereof, the Company must deliver to the
Trustee for such Securities an Opinion of Counsel confirming that the Holders of such Securities
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



34









 






the same manner and at the same times as would have been the case if such Covenant Defeasance
had not occurred;




          (4) no Default or Event of Default with respect to such Securities shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which the Company or any
guarantor of such Securities is a party or by which the Company or any such guarantor is bound;




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




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




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




     Section 8.5. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.



          Subject to Section 8.6 hereof, all money and non-callable Government Securities (including the
proceeds thereof) deposited with a Trustee (or other qualifying trustee, collectively for purposes
of this Section 8.5, the “Trustee”) pursuant to Section 8.4 hereof in respect of the outstanding
Securities of any Series will be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other funds except to the
extent required by law.




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




          Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section




35









 







8.4(1) hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.




     Section 8.6. Repayment to Company.



          Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on, any Series of
Securities and remaining unclaimed for two years after such principal, premium, if any, or interest
has become due and payable shall be paid to the Company on its request or (if then held by the
Company) will be discharged from such trust; and the Holders of such Securities will thereafter be
permitted to look only to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
will thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national edition), notice that
such money remains unclaimed and that, after a date specified therein, which will not be less than
30 days from the date of such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.




     Section 8.7. Reinstatement.



          If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities in accordance with Section 8.2 or 8.3 hereof, as the case may be, by reason of any order
or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s and any applicable guarantors’ obligations under this
Indenture and the applicable Securities and the guarantees will be revived and reinstated as though
no deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof, as
the case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest on, any such Securities following the reinstatement of
its obligations, the Company will be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.




ARTICLE IX.

AMENDMENTS AND WAIVERS




     Section 9.1. Without Consent of Holders.



          Notwithstanding Section 9.2 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Securities of one or more Series without the consent of any
Securityholder:





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




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



36









 






     (c) to provide for the assumption of the Company’s obligations to the Holders of the
Securities by a successor to the Company pursuant to Article 5 hereof;




     (d) to make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the legal rights hereunder of any
Securityholder;




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




     (f) to provide for the issuance of and establish the form and terms and conditions
of Securities of any Series as permitted by this Indenture; or




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



          Upon the request of the Company and upon receipt by the Trustee of the documents described in
Section 7.2 hereof, the Trustee will join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained, but the Trustee will
not be obligated to enter into such amended or supplemental indenture that affects its own rights,
duties or immunities under this Indenture or otherwise.




     Section 9.2. With Consent of Holders.



          The Company and the Trustee may enter into a supplemental indenture with the written consent
of the Holders of at least a majority in principal amount of the outstanding Securities of each
Series affected by such supplemental indenture (including consents obtained in connection with a
tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the Securityholders of
each such Series. Except as provided in Section 6.4, the Holders of at least a majority in
principal amount of the outstanding Securities of each Series by notice to the Trustee (including
consents obtained in connection with a tender offer or exchange offer for the Securities of such
Series) may waive compliance by the Company with any provision of this Indenture or the Securities
with respect to such Series.




          It shall not be necessary for the consent of the Holders of Securities under this Section 9.2
to approve the particular form of any proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. Upon the request of the Company and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Securities as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.2 hereof, the Trustee will join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s
own rights, duties or immunities under this Indenture or



37









 






otherwise, in which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture.




          After a supplemental indenture or waiver under this section becomes effective, the Company
shall mail to the Holders of Securities affected thereby and, if any Bearer Securities affected
thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly
describing the supplemental indenture or waiver. Any failure by the Company to mail or publish
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture or waiver.




     Section 9.3. Limitations.



          Without the consent of each Securityholder affected, an amendment or waiver may not:





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




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




     (c) reduce the principal or change the Stated Maturity of any Security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation;




     (d) reduce the principal amount of Discount Securities payable upon acceleration of
the maturity thereof;




     (e) waive a Default or Event of Default in the payment of the principal of or
interest, if any, on any Security (except a rescission of acceleration of the Securities of
any Series by the Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted from such
acceleration);




     (f) make the principal of or interest, if any, on any Security payable in any
currency other than that stated in the Security;




     (g) make any change in Sections 6.4, 6.7 or 9.3 (this sentence); or




     (h) waive a redemption payment with respect to any Security or change any of the
provisions with respect to the redemption of any Securities.



     Section 9.4. Compliance with Trust Indenture Act.



          Every amendment to this Indenture or the Securities of one or more Series shall be set forth
in a supplemental indenture hereto that complies with the TIA as then in effect.





38









 





     Section 9.5. Revocation and Effect of Consents.




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




     (b) The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment, supplement or
waiver which record date shall be at least 30 days prior to the first solicitation of such
consent. If a record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those persons who were Holders at such record date (or
their duly designated proxies), and only those persons, shall be entitled to revoke any
consent previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days after such
record date. The Company shall inform the Trustee in writing of the fixed record date if
applicable.




     (c) Any amendment or waiver once effective shall bind every Securityholder of each
Series affected by such amendment or waiver unless it is of the type described in any of
clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind
each Holder of a Security who has consented to it and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s Security.



     Section 9.6. Notation on or Exchange of Securities.



          The Trustee may place an appropriate notation about an amendment or waiver on any Security of
any Series thereafter authenticated. The Company in exchange for Securities of that Series may
issue and the Trustee shall authenticate upon request new Securities of that Series that reflect
the amendment or waiver.




     Section 9.7. Trustee Protected.



          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures,
except that the Trustee need not sign any supplemental indenture that adversely affects its rights.




ARTICLE X.

GUARANTEES



     Section 10.1  Guarantees.



          Any Series of Securities may be guaranteed by one or more of the Guarantors. The terms and the
form of any such Guarantee will be established in the manner contemplated by Section 2.2 for that
particular Series of Securities.



39









 










ARTICLE XI.

SATISFACTION AND DISCHARGE




     Section 11.1. Satisfaction and Discharge.



          This Indenture will be discharged and will cease to be of further effect as to a Series of
Securities issued hereunder, when:





     (a) either:




     (i) all such Securities that have been authenticated, except lost, stolen or destroyed
Securities that have been replaced or paid and Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company, have been
delivered to the Trustee for cancellation; or




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




     (b) no Default or Event of Default has occurred and is continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to which the Company or any guarantor of
such Securities is a party or by which the Company or any such guarantor is bound;




     (c) the Company or any guarantor of such Securities has paid or caused to be paid
all sums payable by it under this Indenture; and




     (d) the Company has delivered irrevocable instructions to the Trustee for such
Securities under this Indenture to apply the deposited money toward the payment of such
Securities at maturity or on the redemption date, as the case may be.


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




40









 








          Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.1, the provisions of
Sections 11.2 and 8.6 hereof will survive. In addition, nothing in this Section 11.1 will be
deemed to discharge those provisions of Section 7.7 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.




     Section 11.2. Application of Trust Money.



          Subject to the provisions of Section 8.6 hereof, all money deposited with a Trustee pursuant
to Section 11.1 hereof shall be held in trust and applied by it, in accordance with the provisions
of the Securities with respect to with such deposit was made and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as such Trustee may determine, to the persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with such Trustee; but such money
need not be segregated from other funds except to the extent required by law.




          If such Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.1 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s and any applicable guarantor’s obligations under this Indenture and
the applicable Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.1 hereof; provided that if the Company has made any payment of
principal of, premium, if any, or interest on, any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or Government Securities held by the Trustee or Paying Agent.




ARTICLE XII.

MISCELLANEOUS




     Section 12.1. Trust Indenture Act Controls.



          If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed
provision shall control.




     Section 12.2. Notices.



          Any notice or communication by the Company or the Trustee to the other, or by a Holder to the
Company or the Trustee, is duly given if in writing and delivered in person or mailed by
first-class mail:




if to the Company:




Hanesbrands Inc.

1000 East Hanes Mill Road

Winston Salem, North Carolina 27105




41









 





Attention: Richard D. Moss

Telephone: (336) 519-4332

Facsimile: (336) 714-3856




if to the Trustee:




Branch Banking and Trust Company

223 West Nash Street

Wilson, North Carolina 27893

Attention: Corporate Trust Administration

Telephone: (252) 246-4679

Facsimile: (252) 246-4303




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




          Any notice or communication to a Securityholder shall be mailed by first-class mail to his
address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding,
published in an Authorized Newspaper. Failure to mail a notice or communication to a
Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to
other Securityholders of that or any other Series.




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




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




     Section 12.3. Communication by Holders with Other Holders.



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




     Section 12.4. Certificate and Opinion as to Conditions Precedent.



          Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:





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




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



42









 






     Section 12.5. Statements Required in Certificate or Opinion.



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





     (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 12.6. Rules by Trustee and Agents.



          The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or
more Series. Any Agent may make reasonable rules and set reasonable requirements for its
functions.




     Section 12.7. Legal Holidays.



          Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture
hereto for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a
payment date is a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.




     Section 12.8. No Recourse Against Others.



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




     Section 12.9. Counterparts.



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





43









 





     Section 12.10. Governing Laws.



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




     Section 12.11. No Adverse Interpretation of Other Agreements.



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




     Section 12.12. Successors.



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




     Section 12.13. Severability.



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




     Section 12.14. Table of Contents, Headings, Etc.



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




     Section 12.15. Securities in a Foreign Currency.



          Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency other than
Dollars, then the principal amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
11.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency as published by the Federal Reserve Bank of New York. If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the Federal Reserve
Bank of New York as of the most recent available date, or quotations from one or more major banks
in The City of New York or in the country of issue of the currency in



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question or such other quotations as the Trustee, upon consultation with the Company, shall
deem appropriate. The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a Series denominated in currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.




          All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Company and all Holders.




     Section 12.16. Judgment Currency.



          The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest or other amount on the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered, unless such day is
not a New York Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which
final unappealable judgment is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any
recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day
except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions
are authorized or required by law, regulation or executive order to close.




ARTICLE XIII.

SINKING FUNDS




     Section 13.1. Applicability of Article.



          The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.




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          The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a “mandatory sinking fund payment” and any other amount
provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount
of any sinking fund payment may be subject to reduction as provided in Section 13.2. Each sinking
fund payment shall be applied to the redemption of Securities of any Series as provided for by the
terms of the Securities of such Series.




     Section 13.2. Satisfaction of Sinking Fund Payments with Securities.



          The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than
any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as
credit Securities of such Series to which such sinking fund payment is applicable and which have
been repurchased by the Company or redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other optional redemptions pursuant to
the terms of such Securities, provided that such Securities have not been previously so
credited. Such Securities shall be received by the Trustee, together with an Officers’ Certificate
with respect thereto, not later than 15 days prior to the date on which the Trustee begins the
process of selecting Securities for redemption, and shall be credited for such purpose by the
Trustee at the price specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of
the delivery or credit of Securities in lieu of cash payments pursuant to this Section 13.2, the
principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash
payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall from time
to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so
being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that Series purchased by the Company having an unpaid principal amount equal to the
cash payment required to be released to the Company.




     Section 13.3. Redemption of Securities for Sinking Fund.



          Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture or Officers’ Certificate in respect of a particular Series of Securities) prior to each
sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for
that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 13.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified.




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Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers’
Certificate or supplemental indenture in respect of a particular Series of Securities) before each
such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.




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




	 	 	 	 	 
	 	Hanesbrands Inc.

 	 
	 	By:  	/s/
Richard D. Moss	 
	 	 	Name:  	Richard D. Moss	 
	 	 	Its: 	Senior Vice President and Treasurer	 
	 



	 	 	 	 	 
	 	Branch Banking and Trust Company

 	 
	 	By:  	/s/
Gregory Yanok	 
	 	 	Name:  	Gregory Yanok	 
	 	 	Its: 	Assistant Vice President