EX-4.2






Exhibit 4.2




 






WYNDHAM WORLDWIDE CORPORATION




 






INDENTURE




Dated as of




November 20, 2008




 






DEBT SECURITIES




U.S. Bank National Association,




as Trustee




 





 









 





TABLE OF CONTENTS*




	 	 	 	 	 
	 	 	PAGE
	 
	 	 	 	 
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS

	Section 1.01 Definitions
	 	 	1	 
	 
	 	 	 	 
	
ARTICLE II
	 
	 	 	 	 
	FORMS OF SECURITIES

	 
	 	 	 	 
	Section 2.01 Terms of the Securities
	 	 	11	 
	Section 2.02 Form of Trustee’s Certificate of Authentication
	 	 	11	 
	Section 2.03 Form of Trustee’s Certificate of Authentication by an Authenticating Agent
	 	 	12	 
	 
	 	 	 	 
	
ARTICLE III
	 
	 	 	 	 
	THE DEBT SECURITIES

	 
	 	 	 	 
	Section 3.01 Amount Unlimited; Issuable in Series
	 	 	12	 
	Section 3.02 Denominations
	 	 	15	 
	Section 3.03 Execution, Authentication, Delivery and Dating
	 	 	15	 
	Section 3.04 Temporary Securities
	 	 	17	 
	Section 3.05 Registrar and Paying Agent
	 	 	18	 
	Section 3.06 Transfer and Exchange
	 	 	18	 
	Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	22	 
	Section 3.08 Payment of Interest; Interest Rights Preserved
	 	 	23	 
	Section 3.09 Cancellation
	 	 	24	 
	Section 3.10 Computation of Interest
	 	 	24	 
	Section 3.11 Currency of Payments in Respect of Securities
	 	 	25	 
	Section 3.12 Judgments
	 	 	25	 
	Section 3.13 CUSIP Numbers
	 	 	26	 
	 
	 	 	 	 
	
ARTICLE IV
	 
	 	 	 	 
	REDEMPTION OF SECURITIES

	 
	 	 	 	 
	Section 4.01 Applicability of Right of Redemption
	 	 	26	 








 




			
	*	 	The Table of Contents is not a part of the Indenture.




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	 	 	PAGE
	 
	Section 4.02 Selection of Securities to be Redeemed
	 	 	26	 
	Section 4.03 Notice of Redemption
	 	 	26	 
	Section 4.04 Deposit of Redemption Price
	 	 	27	 
	Section 4.05 Securities Payable on Redemption Date
	 	 	27	 
	Section 4.06 Securities Redeemed in Part
	 	 	28	 
	 
	 	 	 	 
	
ARTICLE V
	 
	 	 	 	 
	SINKING FUNDS

	 
	 	 	 	 
	Section 5.01 Applicability of Sinking Fund
	 	 	28	 
	Section 5.02 Mandatory Sinking Fund Obligation
	 	 	28	 
	Section 5.03 Optional Redemption at Sinking Fund Redemption Price
	 	 	29	 
	Section 5.04 Application of Sinking Fund Payment
	 	 	29	 
	 
	 	 	 	 
	
ARTICLE VI
	 
	 	 	 	 
	PARTICULAR COVENANTS OF THE COMPANY

	Section 6.01 Payments of Securities
	 	 	30	 
	Section 6.02 Paying Agent
	 	 	30	 
	Section 6.03 To Hold Payment in Trust
	 	 	31	 
	Section 6.04 Merger, Consolidation and Sale of Assets
	 	 	32	 
	Section 6.05 Compliance Certificate
	 	 	33	 
	Section 6.06 Conditional Waiver by Holders of Securities
	 	 	33	 
	Section 6.07 Statement by Officers as to Default
	 	 	34	 
	 
	 	 	 	 
	
ARTICLE VII
	 
	 	 	 	 
	REMEDIES OF TRUSTEE AND SECURITYHOLDERS

	Section 7.01 Events of Default
	 	 	34	 
	Section 7.02 Acceleration; Rescission and Annulment
	 	 	36	 
	Section 7.03 Other Remedies
	 	 	37	 
	Section 7.04 Trustee as Attorney-in-Fact
	 	 	38	 
	Section 7.05 Priorities
	 	 	39	 
	Section 7.06 Control by Securityholders; Waiver of Past Defaults
	 	 	39	 
	Section 7.07 Limitation on Suits
	 	 	40	 
	Section 7.08 Undertaking for Costs
	 	 	40	 
	Section 7.09 Remedies Cumulative
	 	 	41	 
	 
	 	 	 	 
	
ARTICLE VIII
	 
	 	 	 	 
	CONCERNING THE SECURITYHOLDERS

	 
	Section 8.01 Evidence of Action of Securityholders
	 	 	41	 
	Section 8.02 Proof of Execution or Holding of Securities
	 	 	42	 
	Section 8.03 Persons Deemed Owners
	 	 	42	 






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	 	 	PAGE
	 
	Section 8.04 Effect of Consents
	 	 	43	 
	 
	 	 	 	 
	
ARTICLE IX
	 
	 	 	 	 
	SECURITYHOLDERS’ MEETINGS

	 
	 	 	 	 
	Section 9.01 Purposes of Meetings
	 	 	43	 
	Section 9.02 Call of Meetings by Trustee
	 	 	43	 
	Section 9.03 Call of Meetings by Company or Securityholders
	 	 	43	 
	Section 9.04 Qualifications for Voting
	 	 	44	 
	Section 9.05 Regulation of Meetings
	 	 	44	 
	Section 9.06 Voting
	 	 	44	 
	Section 9.07 No Delay of Rights by Meeting
	 	 	45	 
	 
	 	 	 	 
	
ARTICLE X
	 
	 	 	 	 
	REPORTS BY THE COMPANY AND THE TRUSTEE AND

SECURITYHOLDERS’ LISTS

	 
	 	 	 	 
	Section 10.01 Reports by Trustee
	 	 	45	 
	Section 10.02 Reports by the Company
	 	 	46	 
	Section 10.03 Securityholders’ Lists
	 	 	46	 
	 
	 	 	 	 
	
ARTICLE XI
	 
	 	 	 	 
	CONCERNING THE TRUSTEE

	 
	 	 	 	 
	Section 11.01 Rights of Trustees; Compensation and Indemnity
	 	 	46	 
	Section 11.02 Duties of Trustee
	 	 	49	 
	Section 11.03 Notice of Defaults
	 	 	51	 
	Section 11.04 Eligibility; Disqualification
	 	 	51	 
	Section 11.05 Registration and Notice; Removal
	 	 	52	 
	Section 11.06 Successor Trustee by Appointment
	 	 	52	 
	Section 11.07 Successor Trustee by Merger
	 	 	54	 
	Section 11.08 Right to Rely on Officer’s Certificate
	 	 	54	 
	Section 11.09 Appointment of Authenticating Agent
	 	 	55	 
	Section 11.10 Communications by Securityholders with Other Securityholders
	 	 	56	 
	 
	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 
	SATISFACTION AND DISCHARGE; DEFEASANCE

	 
	 	 	 	 
	Section 12.01 Applicability of Article
	 	 	56	 
	Section 12.02 Satisfaction and Discharge of Indenture
	 	 	56	 
	Section 12.03 Defeasance upon Deposit of Moneys or U.S. Government Obligations
	 	 	57	 
	Section 12.04 Repayment to Company
	 	 	58	 
	Section 12.05 Indemnity for U.S. Government Obligations
	 	 	59	 
	Section 12.06 Deposits to Be Held in Escrow
	 	 	59	 






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	 	 	PAGE
	 
	Section 12.07 Application of Trust Money
	 	 	59	 
	Section 12.08 Deposits of Non-U.S. Currencies
	 	 	60	 
	Section 12.09 Reinstatement
	 	 	60	 
	 
	 	 	 	 
	
ARTICLE XIII
	 
	 	 	 	 
	IMMUNITY OF CERTAIN PERSONS

	 
	 	 	 	 
	Section 13.01 No Personal Liability 
	 	 	60	 
	 
	 	 	 	 
	
ARTICLE XIV
	 
	 	 	 	 
	SUPPLEMENTAL INDENTURES

	 
	 	 	 	 
	Section 14.01 Without Consent of Securityholders
	 	 	61	 
	Section 14.02 With Consent of Securityholders; Limitations
	 	 	63	 
	Section 14.03 Trustee Protected
	 	 	64	 
	Section 14.04 Effect of Execution of Supplemental Indenture
	 	 	64	 
	Section 14.05 Notation on or Exchange of Securities
	 	 	64	 
	Section 14.06 Conformity with TIA
	 	 	65	 
	 
	 	 	 	 
	
ARTICLE XV
	 
	 	 	 	 
	SUBORDINATION OF SECURITIES

	 
	 	 	 	 
	Section 15.01 Agreement to Subordinate
	 	 	65	 
	Section 15.02 Distribution on Dissolution, Liquidation and Reorganization; Subrogation of
Securities
	 	 	65	 
	Section 15.03 No Payment on Securities in Event of Default on Senior Indebtedness
	 	 	67	 
	Section 15.04 Payments on Securities Permitted
	 	 	67	 
	Section 15.05 Authorization of Securityholders to Trustee to Effect Subordination
	 	 	67	 
	Section 15.06 Notices to Trustee
	 	 	67	 
	Section 15.07 Trustee as Holder of Senior Indebtedness
	 	 	68	 
	Section 15.08 Modifications of Terms of Senior Indebtedness
	 	 	68	 
	Section 15.09 Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	69	 
	Section 15.10 Satisfaction and Discharge; Defeasance and Covenant Defeasance
	 	 	69	 
	Section 15.11 Trustee Not Fiduciary for Holders of Senior Indebtedness
	 	 	69	 
	 
	 	 	 	 
	ARTICLE XVI

	 
	 	 	 	 
	MISCELLANEOUS PROVISIONS

	 
	Section 16.01 Certificates and Opinions as to Conditions Precedent
	 	 	69	 
	Section 16.02 Trust Indenture Act Controls
	 	 	70	 
	Section 16.03 Notices to the Company and Trustee
	 	 	70	 
	Section 16.04 Notices to Securityholders; Waiver
	 	 	71	 
	Section 16.05 Legal Holiday
	 	 	71	 
	Section 16.06 Effects of Headings and Table of Contents
	 	 	72	 






iv









 






	 	 	 	 	 
	 	 	PAGE
	 
	Section 16.07 Successors and Assigns
	 	 	72	 
	Section 16.08 Separability Clause
	 	 	72	 
	Section 16.09 Benefits of Indenture
	 	 	72	 
	Section 16.10 Counterparts Originals
	 	 	72	 
	Section 16.11 Governing Law; Waiver of Trial by Jury
	 	 	72	 
	Section 16.12 Force Majeure
	 	 	72	 






v









 






     INDENTURE
dated as of November 20, 2008 between WYNDHAM WORLDWIDE CORPORATION, a Delaware
corporation (the “Company”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association
organized and in good standing under the laws of the United States, as trustee (the “Trustee”).



WITNESSETH:




     WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured debentures, notes, bonds or other evidences of indebtedness
(the “Securities”) in an unlimited aggregate principal amount to be issued from time to time in one
or more series as provided in this Indenture; and



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



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     That, in consideration of the premises and the purchase of the Securities by the Holders
thereof for the equal and proportionate benefit of all of the present and future Holders of the
Securities, each party agrees and covenants as follows:



ARTICLE I




DEFINITIONS




     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:




     (a) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section
or other subdivision; and



     (b) references to “Article” or “Section” or other subdivision herein are references to an
Article, Section or other subdivision of the Indenture, unless the context otherwise requires.



     Section 1.01 Definitions.



          (a) Unless otherwise defined in this Indenture or the context otherwise requires, all terms
used herein shall have the meanings assigned to them in the Trust Indenture Act.



          (b) Unless the context otherwise requires, the terms defined in this Section 1.01(b) shall for
all purposes of this Indenture have the meanings hereinafter set forth, the



 









 







following definitions to be equally applicable to both the singular and the plural forms of
any of the terms herein defined:



Affiliate:




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



Authenticating Agent:




     The term “Authenticating Agent” shall have the meaning assigned to it in Section 11.09.



Board of Directors:




     The term “Board of Directors” shall mean either the board of directors of the Company or the
executive or any other committee of that board duly authorized to act in respect hereof.



Board Resolution:




     The term “Board Resolution” shall mean a copy of a resolution or resolutions certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of
Directors (or by a committee of the Board of Directors to the extent that any such other committee
has been authorized by the Board of Directors to establish or approve the matters contemplated) and
to be in full force and effect on the date of such certification and delivered to the Trustee.



Business Day:




     The term “Business Day,” when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that
Place of Payment or other location are authorized or obligated by law or executive order to close.



Capital Stock:




     The term “Capital Stock” shall mean:



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




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




2









 








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




          (d) 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.




Code:




     The term “Code” shall mean the Internal Revenue Code of 1986 as in effect on the date hereof.



Company:




     The term “Company” shall mean the Person named as the “Company” in the first paragraph of this
Indenture until a successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Company” shall mean such successor Person.



Company Order:




     The term “Company Order” shall mean a written order signed in the name of the Company by the
Chairman, Chief Executive Officer, President, Executive Vice President, Senior Vice President,
Treasurer, Assistant Treasurer, Controller, Assistant Controller, Secretary or Assistant Secretary
of the Company, and delivered to the Trustee.



Corporate Trust Office:




     The term “Corporate Trust Office,” or other similar term, shall mean the principal office of
the Trustee at which at any particular time its corporate trust business shall be administered,
which office at the date hereof is located at 100 Wall Street, Suite 1600, New York, New York
10005, Attention: Corporate Trust Services, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal corporate trust officer of
any successor Trustee (or such other address as such successor Trustee may designate from time to
time by notice to the Holders and the Company).



Currency:




     The term “Currency” shall mean U.S. Dollars or Foreign Currency.



Default:




     The term “Default” shall have the meaning assigned to it in Section 11.03.



3









 





Defaulted Interest:




     The term “Defaulted Interest” shall have the same meaning assigned to it in Section 3.08(b).



Depositary:




     The term “Depositary” shall mean, with respect to the Securities of any series issuable in
whole or in part in the form of one or more Global Securities, the Person designated as Depositary
by the Company pursuant to Section 3.01 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or
include each Person who is then a Depositary hereunder, and if at any time there is more than one
such Person, “Depositary” as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Securities of that series.



Designated Currency:




     The term “Designated Currency” shall have the same meaning assigned to it in Section 3.12.



Discharged:




     The term “Discharged” shall have the meaning assigned to it in Section 12.03.



Event of Default:




     The term “Event of Default” shall have the meaning specified in Section 7.01.



Exchange Act:




     The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



Exchange Rate:




     The term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.



Floating Rate Security:




     The term “Floating Rate Security” shall mean a Security that provides for the payment of
interest at a variable rate determined periodically by reference to an interest rate index
specified pursuant to Section 3.01.



Foreign Currency:




     The term “Foreign Currency” shall mean a currency issued by the government of any country
other than the United States or a composite currency, the value of which is determined by reference
to the values of the currencies of any group of countries.



4









 





GAAP:




     The term “GAAP,” with respect to any computation required or permitted hereunder, shall mean
generally accepted accounting principles in effect in the United States as in effect from time to
time, including, without limitation, those 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 approved by a significant segment of the accounting profession.



Global Security:




     The term “Global Security” shall mean any Security that evidences all or part of a series of
Securities, issued in fully-registered certificated form to the Depositary for such series in
accordance with Section 3.03 and bearing the legend prescribed in Section 3.03(g).



Holder; Holder of Securities:




     The terms “Holder” and “Holder of Securities” are defined under “Securityholder; Holder of
Securities; Holder.”



Indebtedness:




     The term “Indebtedness” shall mean any and all obligations of a Person for money borrowed
which, in accordance with GAAP, would be reflected on the balance sheet of such Person as a
liability on the date as of which Indebtedness is to be determined.



Indenture:




     The term “Indenture” or “this Indenture” shall mean this instrument and all indentures
supplemental hereto.



Individual
Securities:




     The
term “Individual Securities” shall have the meaning
specified in Section 3.01(p).



Interest:




     The term “interest” shall mean, with respect to an Original Issue Discount Security that by
its terms bears interest only after Maturity, interest payable after Maturity.



Interest Payment Date:




     The term “Interest Payment Date” shall mean, with respect to any Security, the Stated Maturity
of an installment of interest on such Security.



Mandatory Sinking Fund Payment:




     The term “Mandatory
Sinking Fund Payment” shall have the meaning assigned to it in Section
5.01(b).



5









 





Maturity:




     The term “Maturity,” with respect to any Security, shall mean the date on which the principal
of such Security shall become due and payable as therein and herein provided, whether by
declaration, call for redemption or otherwise.



Members:




     The term “Members” shall have the meaning assigned to it in Section 3.03(i).



Officer’s Certificate:




     The term “Officer’s Certificate” shall mean a certificate signed by any of the Chairman of the
Board of Directors, Chief Executive Officer, the President or a Vice President, Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements provided for in
Section 16.01 if and to the extent required by the provisions of such Section.



Opinion of Counsel:




     The term “Opinion of Counsel” shall mean an opinion in writing signed by legal counsel, who
may be an employee of or of counsel to the Company, or may be other counsel that meets the
requirements provided for in Section 16.01.



Optional Sinking Fund Payment:




     The term “Optional Sinking Fund Payment” shall have the meaning assigned to it in Section
5.01(b).



Original Issue Discount Security:




     The term “Original Issue Discount Security” shall mean any Security that is issued with
“original issue discount” within the meaning of Section 1273(a) of the Code and the regulations
thereunder and any other Security designated by the Company as issued with original issue discount
for United States federal income tax purposes.



Outstanding:




     The term “Outstanding,” when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture, except:



          (a) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;




          (b) Securities or portions thereof for which payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities or Securities as to



6









 






which the Company’s obligations have been Discharged; provided, however, that if such
Securities or portions thereof are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and




          (c) Securities that have been paid pursuant to Section 3.07(b) or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been presented to a Responsible
Officer of the Trustee proof satisfactory to it that such Securities are held by a protected
purchaser in whose hands such Securities are valid obligations of the Company;



provided, however, that in determining whether the Holders of the requisite principal amount of
Securities of a series Outstanding have performed any action hereunder, Securities owned by the
Company or any other obligor upon the Securities of such series or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such action, only Securities
of such series that a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to
act with respect to such Securities and that the pledgee is not the Company or any other obligor
upon such Securities or any Affiliate of the Company or of such other obligor. In determining
whether the Holders of the requisite principal amount of Outstanding Securities of a series have
performed any action hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purpose 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 7.02 and the principal amount of a
Security denominated in a Foreign Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section 3.11(b).




Paying Agent:




     The term “Paying Agent” shall have the meaning assigned to it in Section 6.02(a).



Person:




     The term “Person” shall mean an individual, a corporation, a limited liability company, a
partnership, an association, a joint stock company, a trust, an unincorporated organization or a
government or an agency or political subdivision thereof.



Place of Payment:




     The term “Place of Payment” shall mean, when used with respect to the Securities of any
series, the place or places where the principal of and premium, if any, and interest on the
Securities of that series are payable as specified pursuant to Section 3.01.



7









 





Predecessor Security:




     The term “Predecessor Security” shall mean, with respect to any Security, every previous
Security evidencing all or a portion of the same debt as that evidenced by such particular
Security, and, for the purposes of this definition, any Security authenticated and delivered under
Section 3.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security.



Record Date:




     The term “Record Date” shall mean, with respect to any interest payable on any Security on any
Interest Payment Date, the close of business on any date specified in such Security for the payment
of interest pursuant to Section 3.01.



Redemption Date:




     The term “Redemption Date” shall mean, when used with respect to any Security to be redeemed,
in whole or in part, the date fixed for such redemption by or pursuant to this Indenture and the
terms of such Security, which, in the case of a Floating Rate Security, unless otherwise specified
pursuant to Section 3.01, shall be an Interest Payment Date only.



Redemption Price:




     The term “Redemption Price,” when used with respect to any Security to be redeemed, in whole
or in part, shall mean the price at which it is to be redeemed pursuant to the terms of the
Security and this Indenture.



Register:




     The term “Register” shall have the meaning assigned to it in Section 3.05(a).



Registrar:




     The term “Registrar” shall have the meaning assigned to it in Section 3.05(a).



Responsible Officers:




     The term “Responsible Officers” of the Trustee hereunder shall mean any officer associated
with the corporate trust department of the Trustee having direct responsibility for the
administration of this Indenture, and also means, with respect to a particular corporate trust
matter, any other officer of the Trustee to whom such matter is referred because of such person’s
knowledge of and familiarity with the particular subject.



SEC:




     The term “SEC” shall mean the U.S. Securities and Exchange Commission, as constituted from
time to time.



8









 





Securities Act:




     The term “Securities Act” shall mean the Securities Act of 1933, as amended.



Security:




     The term “Security” or “Securities” shall have the meaning stated in the recitals and shall
more particularly mean one or more of the Securities duly authenticated by the Trustee and
delivered pursuant to the provisions of this Indenture.



Security Custodian:




     The term “Security Custodian” shall mean the custodian with respect to any Global Security
appointed by the Depositary, or any successor Person thereto, and shall initially be the Paying
Agent.



Securityholder; Holder of Securities; Holder:




     The term “Securityholder” or “Holder of Securities” or “Holder,” shall mean the Person in
whose name Securities shall be registered in the Register kept for that purpose hereunder.



Senior Indebtedness:




     The term “Senior Indebtedness” means the principal of (and premium, if any) and unpaid
interest on (x) Indebtedness of the Company, whether outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, for money borrowed other than (a) any Indebtedness of the
Company which when incurred, and without respect to any election under Section 1111(b) of the
Federal Bankruptcy Code, was without recourse to the Company, (b) any Indebtedness of the Company
to any of its Subsidiaries, (c) Indebtedness to any employee of the Company, (d) any liability for
taxes, (e) Trade Payables and (f) any Indebtedness of the Company which is expressly subordinate in
right of payment to any other Indebtedness of the Company, and (y) renewals, extensions,
modifications and refundings of any such Indebtedness. For purposes of the foregoing and the
definition of “Senior Indebtedness,” the phrase “subordinated in right of payment” means debt
subordination only and not lien subordination, and accordingly, (i) unsecured indebtedness shall
not be deemed to be subordinated in right of payment to secured indebtedness merely by virtue of
the fact that it is unsecured, and (ii) junior liens, second liens and other contractual
arrangements that provide for priorities among Holders of the same or different issues of
indebtedness with respect to any collateral or the proceeds of collateral shall not constitute
subordination in right of payment. This definition may be modified or superseded by a supplemental
indenture.



Special Record Date:




     The term “Special Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).



9









 





Stated Maturity:




     The term “Stated Maturity” when used with respect to any Security or any installment of
interest thereon, shall mean the date specified in such Security as the fixed date on which the
principal (or any portion thereof) of or premium, if any, on such Security or such installment of
interest is due and payable.



Subsidiary:




     The term “Subsidiary,” when used with respect to any Person, shall mean:



          (a) any corporation, limited liability company, 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 and after giving effect to any voting agreement or stockholders’
agreement that effectively transfers voting power) to vote in the election of directors, managers
or trustees of the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and




          (b) any partnership (i) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (ii) the only general partners of which are that
Person or one or more Subsidiaries of that Person (or any combination thereof).




Successor Company:




     The term “Successor Company” shall have the meaning assigned to it in Section 3.06(i).



Trade Payables:




     The term “Trade Payables” means accounts payable or any other Indebtedness or monetary
obligations to trade creditors created or assumed by the Company or any Subsidiary of the Company
in the ordinary course of business (including guarantees thereof or instruments evidencing such
liabilities).



Trust Indenture Act; TIA:




     The term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939, as
amended.



Trustee:




     The term “Trustee” shall mean the Person named as the “Trustee” in the first paragraph of this
Indenture until a successor Trustee shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall
mean or include 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.



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U.S. Dollars:




     The term “U.S. Dollars” shall mean such currency of the United States as at the time of
payment shall be legal tender for the payment of public and private debts.



U.S. Government Obligations:




     The
term “U.S. Government Obligations” shall have the meaning
assigned to it in Section 12.03.



United States:




     The term “United States” shall mean the United States of America (including the States and the
District of Columbia), its territories and its possessions and other areas subject to its
jurisdiction.



ARTICLE II




FORMS OF SECURITIES




     Section 2.01 Terms of the Securities.



          (a) The Securities of each series shall be substantially in the form set forth in a Company
Order or in one or more indentures supplemental hereto, and shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any securities exchange on which
any series of the Securities may be listed or of any automated quotation system on which any such
series may be quoted, or to conform to usage, all as determined by the officers executing such
Securities as conclusively evidenced by their execution of such Securities.




          (b) The terms and provisions of the Securities shall constitute, and are hereby expressly
made, a part of this Indenture, and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture expressly agree to such terms and provisions and to
be bound thereby.




     Section 2.02 Form of Trustee’s Certificate of Authentication.



          (a) Only such of the Securities as shall bear thereon a certificate substantially in the form
of the Trustee’s certificate of authentication hereinafter recited, executed by the Trustee by
manual signature, shall be valid or become obligatory for any purpose or entitle the Holder thereof
to any right or benefit under this Indenture.




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          (b) Each Security shall be dated the date of its authentication, except that any Global
Security shall be dated as of the date specified as contemplated in Section 3.01.




          (c) The form of the Trustee’s certificate of authentication to be borne by the Securities
shall be substantially as follows:




TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 
	Date of authentication:                      	U.S. Bank National Association, as Trustee

 	 
	 	By:  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




     Section 2.03 Form of Trustee’s Certificate of Authentication by an Authenticating
Agent.


 If at any time there shall be an Authenticating Agent appointed with respect to any series of
Securities, then the Trustee’s Certificate of Authentication by such Authenticating Agent to be
borne by Securities of each such series shall be substantially as follows:



TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 
	Date of authentication:                      	U.S. Bank National Association, as Trustee

 	 
	 	By:  	                                               [NAME OF AUTHENTICATING AGENT]
 	 
	 	 	as Authenticating Agent 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



ARTICLE III


THE DEBT SECURITIES


     Section 3.01 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued in one or more series. There shall be set
forth in a Company Order or in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:



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     (a) the title of the Securities of the series (which shall distinguish the Securities of such
series from the Securities of all other series, except to the extent that additional Securities of
an existing series are being issued);



     (b) any limit upon the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to
Section 3.04, 3.06, 3.07, 4.06, or 14.05);



     (c) the dates on which or periods during which the Securities of the series may be issued, and
the dates on, or the range of dates within, which the principal of and premium, if any, on the
Securities of such series are or may be payable or the method by which such date or dates shall be
determined or extended;



     (d) the rate or rates at which the Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, whether such interest shall be payable
in cash or additional Securities of the same series or shall accrue and increase the aggregate
principal amount outstanding of such series (including if such Securities were originally issued at
a discount), the date or dates from which such interest shall accrue, or the method by which such
date or dates shall be determined, the Interest Payment Dates on which any such interest shall be
payable, and the Record Dates for the determination of Holders to whom interest is payable on such
Interest Payment Dates or the method by which such date or dates shall be determined, the right, if
any, to extend or defer interest payments and the duration of such extension or deferral;



     (e) if other than U.S. Dollars, the Currency in which Securities of the series shall be
denominated or in which payment of the principal of, premium, if any, or interest on the Securities
of the series shall be payable and any other terms concerning such payment;



     (f) if the amount of payment of principal of, premium, if any, or interest on the Securities
of the series may be determined with reference to an index, formula or other method including, but
not limited to, an index based on a Currency or Currencies other than that in which the Securities
are stated to be payable, the manner in which such amounts shall be determined;



     (g) if the principal of, premium, if any, or interest on Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a Currency other than that in which
the Securities are denominated or stated to be payable without such election, the period or periods
within which, and the terms and conditions upon which, such election may be made and the time and
the manner of determining the exchange rate between the Currency in which the Securities are
denominated or payable without such election and the Currency in which the Securities are to be
paid if such election is made;



     (h) the place or places, if any, in addition to or instead of the Corporate Trust Office of
the Trustee where the principal of, premium, if any, and interest on Securities of the series shall
be payable, and where Securities of any series may be presented for registration



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of transfer, exchange or conversion, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;




          (i) the price or prices at which, the period or periods within which or the date or dates on
which, and the terms and conditions upon which Securities of the series may be redeemed, in whole
or in part, at the option of the Company, if the Company is to have that option;




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




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




          (l) if other than the principal amount thereof, the portion of the principal amount of the
Securities of the series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 7.02;



          (m) the
guarantors, if any, of the Securities of the series, and the extent
of the guarantees (including provisions relating to seniority,
subordination, and the release of the guarantors), if any, and any
additions or changes to permit or facilitate guarantees of such
Securities;



          (n) whether the Securities of the series are to be issued as Original Issue Discount
Securities and the amount of discount with which such Securities may be issued;




          (o) provisions, if any, for the defeasance of Securities of the series in whole or in part and
any addition or change in the provisions related to satisfaction and discharge;




          (p) whether the Securities of the series are to be issued in whole or in part in the form of
one or more Global Securities and, in such case, the Depositary for such Global Security or
Global Securities, and the terms and conditions, if any, upon which interests in such Global Security or
Global Securities may be exchanged in whole or in part for the
individual Securities represented thereby in definitive form
registered in the name or names of Persons other than such Depositary
or a nominee or nominees thereof (“Individual Securities”);




          (q) the date as of which any Global Security of the series shall be dated if other than the
original issuance of the first Security of the series to be issued;




          (r) the form of the Securities of the series;




          (s) if the Securities of the series are to be convertible into or exchangeable for any
securities or property of any Person (including the Company), the terms and conditions upon which
such Securities will be so convertible or exchangeable, and any additions or changes, if any, to
permit or facilitate such conversion or exchange;




          (t) whether the Securities of such series are subject to subordination and the terms of such
subordination;




14









 








          (u) any restriction or condition on the transferability of the Securities of such series;




          (v) any addition or change in the provisions related to compensation and reimbursement of the
Trustee which applies to Securities of such series;




          (w) any addition or change in the provisions related to supplemental indentures set forth in
Sections 14.02 and 14.04 which applies to Securities of such series;




          (x) provisions, if any, granting special rights to Holders upon the occurrence of specified
events;




          (y) 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 7.02 and any addition or
change in the provisions set forth in Article VII which applies to Securities of the series;




          (z) any addition to or change in the covenants set forth in Article VI which applies to
Securities of the series; and




          (aa) any other terms of the Securities of such series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 14.01).



All Securities of any one series shall be substantially identical, except as to denomination and
except as may otherwise be provided herein or set forth in a Company Order or in one or more
indentures supplemental hereto.




     Section 3.02 Denominations. In the absence of any specification pursuant to Section 3.01 with respect to Securities of any
series, the Securities of such series shall be issuable only as Securities in denominations of any
integral multiple of $1,000, and shall be payable only in U.S. Dollars.



     Section 3.03 Execution, Authentication, Delivery and Dating.



          (a) The Securities shall be executed in the name and on behalf of the Company by the manual or
facsimile signature of its Chairman of the Board of Directors, its Chief Executive Officer,
President, one of its Vice Presidents or Treasurer. If the Person whose signature is on a Security
no longer holds that office at the time the Security is authenticated and delivered, the Security
shall nevertheless be valid.




          (b) At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities and, if required pursuant to Section 3.01, a supplemental indenture or Company Order
setting forth the terms of the Securities of a series. The Trustee shall thereupon authenticate
and deliver such Securities without any further action by the Company. The



15









 






Company Order shall
specify the amount of Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated.




          (c) In authenticating the first Securities of any series and accepting the additional
responsibilities under this Indenture in relation to such Securities the Trustee shall receive, and
(subject to Section 11.02) shall be fully protected in relying upon an Officer’s Certificate and an
Opinion of Counsel, each prepared in accordance with Section 16.01 stating that the conditions
precedent, if any, provided for in the Indenture have been complied with.




          (d) The Trustee shall have the right to decline to authenticate and deliver the Securities
under this Section 3.03 if the issue of the Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.




          (e) Each Security shall be dated the date of its authentication, except as otherwise provided
pursuant to Section 3.01 with respect to the Securities of such series.




          (f) Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all of the
Securities of any series are not to be originally issued at the same time, then the documents
required to be delivered pursuant to this Section 3.03 must be delivered only once prior to the
authentication and delivery of the first Security of such series;




          (g) If the Company shall establish pursuant to Section 3.01 that the Securities of a series
are to be issued in whole or in part in the form of one or more Global Securities, then the Company
shall execute and the Trustee shall authenticate and deliver one or more Global Securities that (i)
shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such Global Securities, (ii) shall be registered, if
in registered form, in the name of the Depositary for such Global Security or Securities or the
nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant
to such Depositary’s instruction and (iv) shall bear a legend substantially to the following
effect:





“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY
BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.






UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF [THE DEPOSITARY] TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF [THE NOMINEE OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF [THE DEPOSITARY] (AND ANY PAYMENT HEREON IS MADE TO [THE NOMINEE OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, [THE NOMINEE OF THE DEPOSITARY], HAS AN INTEREST HEREIN.






TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.”








     The aggregate principal amount of each Global Security may from time to time be increased or
decreased by adjustments made on the records of the Security Custodian, as provided in this
Indenture.



          (h) Each Depositary designated pursuant to Section 3.01 for a Global Security in registered
form must, at the time of its designation and at all times while it serves as such Depositary, be a
clearing agency registered under the Exchange Act and any other applicable statute or regulation.




16









 








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




          (j) No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in one of the forms provided for herein duly executed by the Trustee or by an
Authenticating Agent by manual signature of an authorized signatory of the Trustee, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture.




     Section 3.04 Temporary Securities.



          (a) Pending the preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary Securities that are
printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued, in registered form and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. Any such temporary Security may be in the form of one or more Global Securities,
representing all or a portion of the Outstanding Securities of such series. Every such temporary
Security shall be executed by the Company and shall be authenticated and delivered by the Trustee
upon the same conditions and in substantially the same manner, and with the same effect, as the
definitive Security or Securities in lieu of which it is issued.




          (b) If temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of such temporary Securities at the office
or agency of the Company in a Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of the same series of authorized denominations and of like tenor. Until
so exchanged, the temporary Securities of any series shall



17









 






in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.




          (c) Upon any exchange of a portion of a temporary Global Security for a definitive Global
Security or for the Individual Securities represented thereby pursuant to this
Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee
to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount
of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and
endorsed.




     Section 3.05 Registrar and Paying Agent.



          (a) The Company will keep, at an office or agency to be maintained by it in a Place of Payment
where Securities may be presented for registration or presented and surrendered for registration of
transfer or of exchange, and where Securities of any series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable (the “Registrar”), a security register
for the registration and the registration of transfer or of exchange of the Securities (the
registers maintained in such office and in any other office or agency of the Company in a Place of
Payment being herein sometimes collectively referred to as the “Register”), as in this Indenture
provided, which Register shall at all reasonable times be open for inspection by the Trustee. Such
Register shall be in written form or in any other form capable of being converted into written form
within a reasonable time. The Company may have one or more co-Registrars; the term “Registrar”
includes any co-registrar.




          (b) The Company shall enter into an appropriate agency agreement with any Registrar or
co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the name and address
of each such agent. If the Company fails to maintain a Registrar for any series, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant to Section 11.01.
The Company or any Affiliate thereof may act as Registrar, co-Registrar or transfer agent.




          (c) The Company hereby appoints the Trustee at its Corporate Trust Office as Registrar in
connection with the Securities and this Indenture, until such time as another Person is appointed
as such.




     Section 3.06 Transfer and Exchange.



          (a) Transfer.





          (i) Upon surrender for registration of transfer of any Security of any series
at the Registrar the Company shall execute, and the Trustee or any Authenticating
Agent shall authenticate and deliver, in the name of the designated transferee, one
or more new Securities of the same series for like aggregate principal amount of any
authorized denomination or denominations. The transfer of any Security shall not be
valid as against the Company or the Trustee unless registered at the Registrar at
the request of the Holder, or at the request of his, her or its attorney duly
authorized in writing.



18









 






          (ii) Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for the Individual Securities represented thereby,
a Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.



          (b) Exchange.





          (i) At the option of the Holder, Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for other Securities of the
same series for like aggregate principal amount of any authorized denomination or
denominations, upon surrender of the Securities to be exchanged at the Registrar.




          (ii) Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities that the
Holder making the exchange is entitled to receive.



          (c) Exchange of Global Securities for Individual Securities. Except as provided below, owners
of beneficial interests in Global Securities will not be entitled to receive individual Securities.





          (i) Individual Securities shall be issued to all owners of beneficial interests
in a Global Security in exchange for such interests if: (A) at any time the
Depositary for the Securities of a series notifies the Company that it is unwilling
or unable to continue as Depositary for the Securities of such series or if at any
time the Depositary for the Securities of such series shall no longer be eligible
under Section 3.03(h) and, in each case, a successor Depositary is not appointed by
the Company within 90 days of such notice, or (B) the Company executes and delivers
to the Trustee and the Registrar an Officer’s Certificate stating that such Global
Security shall be so exchangeable.




     In connection with the exchange of an entire Global Security for Individual
Securities pursuant to this subsection (c), such Global Security shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee, upon receipt of a Company Order for the authentication and delivery of
Individual Securities of such series, will authenticate and deliver to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in such Global Security, an equal aggregate principal amount of Individual
Securities of authorized denominations.




          (ii) The owner of a beneficial interest in a Global Security will be entitled
to receive an Individual Security in exchange for such interest if an Event of
Default has occurred and is continuing. Upon receipt by the Security



19









 







Custodian and
Registrar of instructions from the Holder of a Global Security directing the
Security Custodian and Registrar to (x) issue one or more Individual Securities in
the amounts specified to the owner of a beneficial interest in such Global Security
and (y) debit or cause to be debited an equivalent amount of
beneficial interest in such Global Security, subject to the rules and
regulations of the Depositary:




               (A) the Security Custodian and Registrar shall notify the
Company and the Trustee of such instructions, identifying the owner
and amount of such beneficial interest in such Global Security;




               (B) the Company shall promptly execute and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
Individual Securities of such series, shall authenticate and deliver
to such beneficial owner Individual Securities in an equivalent
amount to such beneficial interest in such Global Security; and




               (C) the Security Custodian and Registrar shall decrease such
Global Security by such amount in accordance with the foregoing. In
the event that the Individual Securities are not issued to each such
beneficial owner promptly after the Registrar has received a request
from the Holder of a Global Security to issue such Individual
Securities, the Company expressly acknowledges, with respect to the
right of any Holder to pursue a remedy pursuant to Section 7.07
hereof, the right of any beneficial Holder of Securities to pursue
such remedy with respect to the portion of the Global Security that
represents such beneficial Holder’s Securities as if such Individual
Securities had been issued.




                    (iii) If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender a
Global Security for such series of Securities in exchange in whole or in part for
Individual Securities of such series on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,




               (A) to each Person specified by such Depositary a new
Individual Security or new Individual Securities of the same series, of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person’s
beneficial interest in the Global Security; and




               (B) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Individual Securities delivered to Holders thereof.



20









 






          (iv) In any exchange provided for in clauses (i) through (iii), the Company
will execute and the Trustee will authenticate and deliver Individual Securities in
registered form in authorized denominations.




          (v)
Upon the exchange in full of a Global Security for Individual Securities,
such Global Security shall be canceled by the Trustee. Individual Securities issued
in exchange for a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.



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




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




          (f) No service charge will be made for any registration of transfer or exchange of Securities.
The Company or the Trustee may require payment of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than those expressly provided in this Indenture to be made at the
Company’s own expense or without expense or charge to the Holders.




          (g) The Company shall not be required to (i) register, transfer or exchange Securities of any
series during a period beginning at the opening of business 15 days before the day of the
transmission of a notice of redemption of Securities of such series selected for redemption under
Section 4.03 and ending at the close of business on the day of such transmission, or (ii) register,
transfer or exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.




          (h) Prior to the due presentation for registration of transfer or exchange of any Security,
the Company, the Trustee, the Paying Agent, the Registrar, any co-Registrar or any of their agents
may deem and treat the Person in whose name a Security is registered as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for all purposes whatsoever, and none of the Company, the
Trustee, the Paying Agent, the Registrar, any co-Registrar or any of their agents shall be affected
by any notice to the contrary.




21









 








          (i) In case a successor Company (“Successor Company”) has executed an indenture supplemental
hereto with the Trustee pursuant to Article XIV, any of the Securities
authenticated or delivered pursuant to such transaction may, from time to time, at the request
of the Successor Company, be exchanged for other Securities executed in the name of the Successor
Company with such changes in phraseology and form as may be appropriate, but otherwise identical to
the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon
Company Order of the Successor Company, shall authenticate and deliver Securities as specified in
such order for the purpose of such exchange. If Securities shall at any time be authenticated and
delivered in any new name of a Successor Company pursuant to this Section 3.06 in exchange or
substitution for or upon registration of transfer of any Securities, such Successor Company, at the
option of the Holders but without expense to them, shall provide for the exchange of all Securities
at the time Outstanding for Securities authenticated and delivered in such new name.




          (j) Each Holder of a Security agrees to indemnify the Company and the Trustee against any
liability that may result from the transfer, exchange or assignment of such Holder’s Security in
violation of any provision of this Indenture and/or applicable United States federal or state
securities laws.




          (k) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security other than to require delivery of such
certificates and other documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.




          (l) Neither the Trustee nor any agent of the Trustee shall have any responsibility for any
actions taken or not taken by the Depositary.




     Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities.



          (a) If (i) any mutilated Security is surrendered to the Trustee at its Corporate Trust Office
or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, and there is delivered to the Company and the Trustee security or
indemnity satisfactory to them to save each of them and any Paying Agent harmless, and neither the
Company nor the Trustee receives notice that such Security has been acquired by a protected
purchaser, then the Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a
new Security of the same series and of like tenor, form, terms and principal amount, bearing a
number not contemporaneously outstanding, that neither gain nor loss in interest shall result from
such exchange or substitution.




          (b) 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
the amount due on such Security in accordance with its terms.




22









 








          (c) 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 respect thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.




          (d) Every new Security of any series issued pursuant to this Section shall constitute an
original additional contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time 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.




          (e) 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 3.08 Payment of Interest; Interest Rights Preserved.



          (a) Interest on any Security that is payable and is punctually paid or duly provided for on
any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Record Date for such interest
notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the
Record Date. Payment of interest on Securities shall be made at the Corporate Trust Office (except
as otherwise specified pursuant to Section 3.01) or, at the option of the Company, by check mailed
to the address of the Person entitled thereto as such address shall appear in the Register or, in
accordance with arrangements satisfactory to the Trustee, by wire transfer to an account designated
by the Holder.




          (b) Any interest on any Security that is payable but is not punctually paid or duly provided
for on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be
payable to the Holder on the relevant Record Date by virtue of his, her or its having been such a
Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (i) or (ii) below:





               (i) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names such Securities (or their respective Predecessor Securities)
are registered at the close of business on a special record date for the payment of
such Defaulted Interest (a “Special Record Date”), which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 calendar days
and not less than



23









 







 10 calendar days prior to the date of the proposed payment and not
less than 10 calendar days after the receipt by the Trustee of the notice of the
proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to the Holders of such Securities at their
addresses as they appear in the Register, not less than
10 calendar days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following clause
(ii).




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



          (c) Subject to the provisions set forth herein relating to Record Dates, each Security
delivered pursuant to any provision of this Indenture in exchange or substitution for, or upon
registration of transfer of, any other Security shall carry all the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.




     Section 3.09 Cancellation. Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all Securities
surrendered for payment, redemption, registration of transfer or exchange or credit against any
sinking fund or otherwise shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee for cancellation and shall be promptly canceled by it and, if surrendered to the
Trustee, shall be promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder that the Company may
have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this Indenture. The Trustee
shall dispose of all canceled Securities held by it in accordance with its then customary
procedures and deliver a certificate of such disposal to the Company upon its written request
therefor. The acquisition of any Securities by the Company shall not operate as a redemption or
satisfaction of the Indebtedness represented thereby unless and until such Securities are
surrendered to the Trustee for cancellation.



     Section 3.10 Computation of Interest. Except as otherwise specified pursuant to Section 3.01 for Securities of any series, interest on
the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day
months.



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     Section 3.11 Currency of Payments in Respect of Securities.



          (a) Except as otherwise specified pursuant to Section 3.01 for Securities of any series,
payment of the principal of and premium, if any, and interest on Securities of such series will be
made in U.S. Dollars.




          (b) For purposes of any provision of the Indenture where the Holders of Outstanding Securities
may perform an action that requires that a specified percentage of the Outstanding Securities of
all series perform such action and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal of and premium, if any, and interest on the Securities of
all series in respect of which moneys are to be disbursed ratably, the principal of and premium, if
any, and interest on the Outstanding Securities denominated in a Foreign Currency will be the
amount in U.S. Dollars based upon exchange rates, determined as specified pursuant to Section 3.01
for Securities of such series, as of the date for determining whether the Holders entitled to
perform such action have performed it or as of the date of such decision or determination by the
Trustee, as the case may be.




          (c) Any decision or determination to be made regarding exchange rates shall be made by an
agent appointed by the Company; provided, that such agent shall accept such appointment in writing
and the terms of such appointment shall, in the opinion of the Company at the time of such
appointment, require such agent to make such determination by a method consistent with the method
provided pursuant to Section 3.01 for the making of such decision or determination. All decisions
and determinations of such agent regarding exchange rates shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all
Holders of the Securities.




     Section 3.12 Judgments. The Company may provide pursuant to Section 3.01 for Securities of any series that (a) the
obligation, if any, of the Company to pay the principal of, premium, if any, and interest on the
Securities of any series in a Foreign Currency or U.S. Dollars (the “Designated Currency”) as may
be specified pursuant to Section 3.01 is of the essence and agrees that, to the fullest extent
possible under applicable law, judgments in respect of such Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the Designated Currency
of the principal of and premium, if any, and interest on such Securities shall, notwithstanding any
payment in any other Currency (whether pursuant to a judgment or otherwise), be discharged only to
the extent of the amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such other Currency (after
any premium and cost of exchange) on the business day in the country of issue of the Designated
Currency or in the international banking community (in the case of a composite currency)
immediately following the day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the amount originally
due, the Company shall pay such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such payment shall be due as a
separate and independent obligation and, until discharged as provided herein, shall continue in
full force and effect.



25









 





     Section 3.13 CUSIP Numbers. The Company in issuing any Securities may use CUSIP, ISIN or other similar numbers, if then
generally in use, and thereafter with respect to such series, the Trustee
may use such numbers in any notice of redemption or exchange with respect to such series 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 identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP, ISIN or other similar numbers.



ARTICLE IV




REDEMPTION OF SECURITIES




     Section 4.01 Applicability of Right of Redemption. Redemption of Securities (other than pursuant to a sinking fund, amortization or analogous
provision) permitted by the terms of any series of Securities shall be made (except as otherwise
specified pursuant to Section 3.01 for Securities of any series) in accordance with this Article;
provided, however, that if any such terms of a series of Securities shall conflict with any
provision of this Article, the terms of such series shall govern.



     Section 4.02 Selection of Securities to be Redeemed.



          (a) If the Company shall at any time elect to redeem all or any portion of the Securities of a
series then Outstanding, it shall at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter period shall be satisfactory to the Trustee) notify the Trustee of such
Redemption Date and of the principal amount of Securities to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as the Trustee shall deem appropriate and which may
provide for the selection for redemption of a portion of the principal amount of any Security of
such series; provided that the unredeemed portion of the principal amount of any Security shall be
in an authorized denomination (which shall not be less than the minimum authorized denomination)
for such Security. In any case where more than one Security of such series is registered in the
same name, the Trustee may treat the aggregate principal amount so registered as if it were
represented by one Security of such series. The Trustee shall, as soon as practicable, notify the
Company in writing of the Securities and portions of Securities so selected.




          (b) For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security that has been or
is to be redeemed. If the Company shall so direct, Securities registered in the name of the
Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected
for redemption.




     Section 4.03 Notice of Redemption.



          (a) Notice of redemption shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company, not less than



26









 






30 nor more than 60 days prior
to the Redemption Date, to the Holders of Securities of any series
to be redeemed in whole or in part pursuant to this Article, in the manner provided in Section
16.04; provided that the Trustee be provided with the draft notice at least 15 days prior to
sending such notice of redemption. Any notice so given shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Security of a series designated for redemption, in whole
or in part, shall not affect the sufficiency of any notice of redemption with respect to the Holder
of any other Security of such series.




          (b) All notices of redemption shall identify the Securities to be redeemed (including CUSIP,
ISIN or other similar numbers, if available) and shall state:





          (i) such election by the Company to redeem Securities of such series pursuant
to provisions contained in this Indenture or the terms of the Securities of such
series or a supplemental indenture establishing such series, if such be the case;




          (ii) the Redemption Date;




          (iii) the Redemption Price;




          (iv) if less than all Outstanding Securities of any series are to be redeemed,
the identification (and, in the case of partial redemption, the principal amounts)
of the Securities of such series to be redeemed;




          (v) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed, and that, if applicable, interest
thereon shall cease to accrue on and after said date;




          (vi) the Place or Places of Payment where such Securities are to be surrendered
for payment of the Redemption Price; and




          (vii) that the redemption is for a sinking fund, if such is the case;



     Section 4.04 Deposit of Redemption Price. On or prior to 10:00 a.m., New York City time, on the Redemption Date for any Securities, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 6.03) an amount of money in
the Currency in which such Securities are denominated (except as provided pursuant to Section 3.01)
sufficient to pay the Redemption Price of such Securities or any portions thereof that are to be
redeemed on that date.



     Section 4.05 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, any Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price and from and after such date
(unless the Company shall Default in the payment of the Redemption Price) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price; provided, however, that
(unless otherwise provided pursuant to Section 3.01) installments of interest that have a Stated
Maturity



27









 







on or prior
to the Redemption Date for such Securities shall be payable according to the terms of such
Securities and the provisions of Section 3.08.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal thereof and premium, if any, thereon shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.



     Section 4.06 Securities Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at the Corporate Trust
Office or such other office or agency of the Company as is specified pursuant to Section 3.01 with,
if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his, her or its attorney duly authorized in writing, and the
Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series, of like tenor and
form, of any authorized denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the Security so
surrendered; except that if a Global Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such Global Security, without service
charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion
of the principal of the Global Security so surrendered. In the case of a Security providing
appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on such Security of the
payment of the redeemed portion thereof.



ARTICLE V




SINKING FUNDS




     Section 5.01 Applicability of Sinking Fund.



          (a) Redemption of Securities permitted or required pursuant to a sinking fund for the
retirement of Securities of a series by the terms of such series of Securities shall be made in
accordance with such terms of such series of Securities and this Article, except as otherwise
specified pursuant to Section 3.01 for Securities of such series, provided, however, that if any
such terms of a series of Securities shall conflict with any provision of this Article, the terms
of such series shall govern.




          (b) The minimum amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a “Mandatory Sinking Fund Payment,” and any payment in excess
of such minimum amount provided for by the terms of Securities of any series is herein referred to
as an “Optional Sinking Fund Payment.” If provided for by the terms of Securities of any series,
the cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as provided in
Section 5.02.




     Section 5.02 Mandatory Sinking Fund Obligation. The Company may, at its option, satisfy any Mandatory Sinking Fund Payment obligation, in whole
or in part, with respect to a particular series of Securities by (a) delivering to the Trustee
Securities of such series in



28









 







transferable form
theretofore purchased or otherwise acquired by the Company or redeemed at the election of the
Company pursuant to Section 4.03 or (b) receiving credit for Securities of such series (not
previously so credited) acquired by the Company and theretofore delivered to the Trustee. The
Trustee shall credit such Mandatory Sinking Fund Payment obligation with an amount equal to the
Redemption Price specified in such Securities for redemption through operation of the sinking fund
and the amount of such Mandatory Sinking Fund Payment shall be reduced accordingly. If the Company
shall elect to so satisfy any Mandatory Sinking Fund Payment obligation, it shall deliver to the
Trustee not less than 45 days prior to the relevant sinking fund payment date an Officer’s
Certificate, which shall designate the Securities (and portions thereof, if any) so delivered or
credited and which shall be accompanied by such Securities (to the extent not theretofore
delivered) in transferable form. In case of the failure of the Company, at or before the time so
required, to give such notice and deliver such Securities the Mandatory Sinking Fund Payment
obligation shall be paid entirely in moneys.



     Section 5.03 Optional Redemption at Sinking Fund Redemption Price. In addition to the sinking fund requirements of Section 5.02, to the extent, if any, provided
for by the terms of a particular series of Securities, the Company may, at its option, make an
Optional Sinking Fund Payment with respect to such Securities. Unless otherwise provided by such
terms, (a) to the extent that the right of the Company to make such Optional Sinking Fund Payment
shall not be exercised in any year, it shall not be cumulative or carried forward to any subsequent
year, and (b) such optional payment shall operate to reduce the amount of any Mandatory Sinking
Fund Payment obligation as to Securities of the same series. If the Company intends to exercise
its right to make such optional payment in any year it shall deliver to the Trustee not less than
45 days prior to the relevant sinking fund payment date an Officer’s Certificate stating that the
Company will exercise such optional right, and specifying the amount which the Company will pay on
or before the next succeeding sinking fund payment date. Such Officer’s Certificate shall also
state that no Event of Default has occurred and is continuing.



     Section 5.04 Application of Sinking Fund Payment.



          (a) If the sinking fund payment or payments made in funds pursuant to either Section 5.02 or
5.03 with respect to a particular series of Securities plus any unused balance of any preceding
sinking fund payments made in funds with respect to such series shall exceed $50,000 (or a lesser
sum if the Company shall so request, or such equivalent sum for Securities denominated other than
in U.S. Dollars), it shall be applied by the Trustee on the sinking fund payment date next
following the date of such payment, unless the date of such payment shall be a sinking fund payment
date, in which case such payment shall be applied on such sinking fund payment date, to the
redemption of Securities of such series at the redemption price specified pursuant to Section
4.03(b). The Trustee shall select, in the manner provided in Section 4.02, for redemption on such
sinking fund payment date, a sufficient principal amount of Securities of such series to absorb
said funds, as nearly as may be, and shall, at the expense and in the name of the Company,
thereupon cause notice of redemption of the Securities to be given in substantially the manner
provided in Section 4.03(a) for the redemption of Securities in part at the option of the Company,
except that the notice of redemption shall also state that the Securities are being redeemed for
the sinking fund. Any sinking fund moneys not so applied by the Trustee to the redemption of
Securities of such series shall be added to the next sinking fund payment received in funds by the
Trustee and, together with such payment, shall be applied in



29









 






accordance with the provisions of this Section 5.04. Any and all sinking fund moneys held by
the Trustee on the last sinking fund payment date with respect to Securities of such series, and
not held for the payment or redemption of particular Securities of such series, shall be applied by
the Trustee to the payment of the principal of the Securities of such series at Maturity.




          (b) On or prior to each sinking fund payment date, the Company shall pay to the Trustee a sum
equal to all interest accrued to but not including the date fixed for redemption on Securities to
be redeemed on such sinking fund payment date pursuant to this Section 5.04.




          (c) The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail
any notice of redemption of Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on any Securities of such series or of any Event of
Default (other than an Event of Default occurring as a consequence of this paragraph) of which a
Responsible Officer of the Trustee has actual knowledge, except that if the notice of redemption of
any Securities of such series shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee shall redeem such Securities if funds sufficient for that purpose shall be
deposited with the Trustee in accordance with the terms of this Article. Except as aforesaid, any
moneys in the sinking fund at the time any such Default or Event of Default shall occur and any
moneys thereafter paid into the sinking fund shall, during the continuance of such Default or Event
of Default, be held as security for the payment of all the Securities of such series; provided,
however, that in case such Default or Event of Default shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next sinking fund payment date on which such
moneys are required to be applied pursuant to the provisions of this Section 5.04.




ARTICLE VI




PARTICULAR COVENANTS OF THE COMPANY




     The Company hereby covenants and agrees as follows:



     Section 6.01 Payments of Securities. The Company will duly and punctually pay the principal of and premium, if any, on each series of
Securities, and the interest which shall have accrued thereon, at the dates and place and in the
manner provided in the Securities and in this Indenture.



     Section 6.02 Paying Agent.



          (a) The Company will maintain in each Place of Payment for any series of Securities, if any,
an office or agency where Securities may be presented or surrendered for payment, where 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 and this Indenture may be served (the
“Paying Agent”). The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby



30









 






appoints the Trustee as Paying Agent to receive all presentations, surrenders, notices and
demands.




          (b) The Company may also from time to time designate different or additional offices or
agencies where the Securities of any series may be presented or surrendered for any or all such
purposes (in or outside of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in any manner relieve
the Company of its obligations described in the preceding paragraph. The Company will give prompt
written notice to the Trustee of any such additional designation or rescission of designation and
of any change in the location of any such different or additional office or agency. The Company
shall enter into an appropriate agency agreement with any Paying Agent not a party to this
Indenture. The agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall promptly notify the Trustee in writing of the name and address of each
such agent. The Company or any Affiliate thereof may act as Paying Agent.




     Section 6.03 To Hold Payment in Trust.



          (a) If the Company or an Affiliate thereof shall at any time act as Paying Agent with respect
to any series of Securities, then, on or before the date on which the principal of and premium, if
any, or interest on any of the Securities of that series by their terms or as a result of the
calling thereof for redemption shall become payable, the Company or such Affiliate will segregate
and hold in trust for the benefit of the Holders of such Securities or the Trustee a sum sufficient
to pay such principal and premium, if any, or interest which shall have so become payable until
such sums shall be paid to such Holders or otherwise disposed of as herein provided, and will
notify the Trustee of its action or failure to act in that regard. Upon any proceeding under any
federal bankruptcy laws with respect to the Company or any Affiliate thereof, if the Company or
such Affiliate is then acting as Paying Agent, the Trustee shall replace the Company or such
Affiliate as Paying Agent.




          (b) If the Company shall appoint, and at the time have, a Paying Agent for the payment of the
principal of and premium, if any, or interest on any series of Securities, then prior to 10:00
a.m., New York City time, on the date on which the principal of and premium, if any, or interest on
any of the Securities of that series shall become payable as aforesaid, whether by their terms or
as a result of the calling thereof for redemption, the Company will deposit with such Paying Agent
a sum sufficient to pay such principal and premium, if any, or interest, such sum to be held in
trust for the benefit of the Holders of such Securities or the Trustee, and (unless such Paying
Agent is the Trustee), the Company or any other obligor of such Securities will promptly notify the
Trustee of its payment or failure to make such payment.




          (c) If the Paying Agent shall be other than the Trustee, the Company will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section 6.03, that such Paying Agent shall:





               (i) hold all moneys held by it for the payment of the principal of and premium,
if any, or interest on the Securities of that series in trust for the



31









 







benefit of the Holders of such Securities until such sums shall be paid to such
Holders or otherwise disposed of as herein provided;




               (ii) give to the Trustee notice of any Default by the Company or any other
obligor upon the Securities of that series in the making of any payment of the
principal of and premium, if any, or interest on the Securities of that series; and




               (iii) at any time during the continuance of any such Default, upon the written
request of the Trustee, pay to the Trustee all sums so held in trust by such Paying
Agent.



          (d) Anything in this Section 6.03 to the contrary notwithstanding, the Company may at any
time, for the purpose of obtaining a release, satisfaction or discharge of this Indenture or for
any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or
by any Paying Agent other than the Trustee as required by this Section 6.03, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent.




          (e) 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 and premium, if any, or interest on any Security of any
series and remaining unclaimed for two years after such principal and premium, if any, or interest
has become due and payable shall be paid to the Company upon Company Order along with any interest
that has accumulated thereon as a result of such money being invested at the direction of the
Company, or (if then held by the Company) shall be discharged from such trust, and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to the Company for
payment of such amounts without interest thereon, 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, shall
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 a
newspaper published in the English language, customarily published on each Business Day and of
general circulation in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.




     Section 6.04 Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities:



          (a) The Company will not consolidate with any other entity or accept a merger of any other
entity into the Company or permit the Company to be merged into any other entity, or sell other
than for cash or lease all or substantially all its assets to another entity, unless (i) either the Company shall be the
continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall
expressly assume, by indenture supplemental hereto, executed and delivered by such entity prior to
or simultaneously with such consolidation, merger, sale or lease, the due and punctual payment of
the principal of and interest and premium, if any, on all the Securities, according to



32









 






their tenor, and the due and punctual performance and observance of all other obligations to
the Holders and the Trustee under this Indenture or under the Securities to be performed or
observed by the Company; and (ii) immediately after such consolidation, merger, sale, lease or
purchase the Company or the successor, transferee or lessee entity (if other than the Company)
would not be in Default in the performance of any covenant or condition of this Indenture.




          (b) Upon any consolidation with or merger into any other entity, or any sale other than for
cash, or any conveyance or lease of all or substantially all of the assets of the Company in
accordance with this Section 6.04, the successor entity formed by such consolidation or into or
with which the Company is merged or to which the Company is sold or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor entity had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Company shall be relieved of all obligations and covenants under this Indenture and the Securities,
and from time to time such entity may exercise each and every right and power of the Company under
this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any
provision of this Indenture required or permitted to be done by the Board of Directors or any
officer of the Company may be done with like force and effect by the like board or officer of any
entity that shall at the time be the successor of the Company hereunder. In the event of any such
sale or conveyance, but not any such lease, the Company (or any successor entity which shall
theretofore have become such in the manner described in this Section 6.04) shall be discharged from
all obligations and covenants under this Indenture and the Securities and may thereupon be
dissolved and liquidated.




     Section 6.05 Compliance Certificate. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, the Company shall furnish to the Trustee annually, within 120 days after the end of
each fiscal year, a brief certificate from the principal executive officer, principal financial
officer, principal accounting officer or vice president and treasurer as to his or her knowledge of
the Company’s compliance with all conditions and covenants under this Indenture (which compliance
shall be determined without regard to any period of grace or requirement of notice provided under
this Indenture) and, in the event of any Default, specifying each such Default and the nature and
status thereof of which such person may have knowledge. Such certificates need not comply with
Section 16.01 of this Indenture.



     Section 6.06 Conditional Waiver by Holders of Securities. Anything in this Indenture to the contrary notwithstanding, the Company may fail or omit in any
particular instance to comply with a covenant or condition set forth herein with respect to any
series of Securities if the Company shall have obtained and filed with the Trustee, prior to the
time of such failure or omission, evidence (as provided in Article VIII) of the consent of the
Holders of a majority in aggregate principal amount of the Securities of such series at the time
Outstanding, either waiving such compliance in such instance or generally waiving compliance with
such covenant or condition, but no such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, or impair any right consequent thereon and, until such
waiver shall have become effective, the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.



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     Section 6.07 Statement by Officers as to Default. The Company shall deliver to the Trustee as soon as possible and in any event within 30 days
after the Company becomes aware of the occurrence of any Event of Default or an event which, with
the giving of notice or the lapse of time or both, would constitute an Event of Default, an
Officer’s Certificate setting forth the details of such Event of Default or Default and the action
which the Company proposes to take with respect thereto.



ARTICLE VII




REMEDIES OF TRUSTEE AND SECURITYHOLDERS




     Section 7.01 Events of Default. Except where otherwise indicated by the context or where the term is otherwise defined for a
specific purpose, the term “Event of Default” as used in this Indenture with respect to Securities
of any series shall mean one of the following described events unless it is either inapplicable to
a particular series or it is specifically deleted or modified in the manner contemplated in Section
3.01:



          (a) the failure of the Company to pay any installment of interest on any Security of such
series when and as the same shall become payable, which failure shall have continued unremedied for
a period of 30 days;




          (b) the failure of the Company to pay the principal of (and premium, if any, on) any Security
of such series, when and as the same shall become payable, whether at Maturity as therein
expressed, by call for redemption (otherwise than pursuant to a sinking fund), by declaration as
authorized by this Indenture or otherwise;




          (c) the failure of the Company to pay a sinking fund installment, if any, when and as the same
shall become payable by the terms of a Security of such series, which failure shall have continued
unremedied for a period of 30 days;




          (d) the failure of the Company, subject to the provisions of Section 6.06, to perform any
covenants or agreements contained in this Indenture (including any indenture supplemental hereto
pursuant to which the Securities of such series were issued as contemplated by Section 3.01) (other
than a covenant or agreement which has been expressly included in this Indenture solely for the
benefit of a series of Securities other than that series and other than a covenant or agreement a
default in the performance of which is elsewhere in this Section 7.01 specifically addressed),
which failure shall not have been remedied, or without provision deemed to be adequate for the
remedying thereof having been made, for a period of 60 days after written notice shall have been
given to the Company by the Trustee or shall have been given to the Company and the Trustee by
Holders of 25% or more in aggregate principal amount of the Securities of such series then
Outstanding, specifying such failure, requiring the Company to remedy the same and stating that
such notice is a “Notice of Default” hereunder;




          (e) the entry by a court having jurisdiction in the premises of a decree or order for relief
in respect of the Company in an involuntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the Company or of




34









 







substantially all the property of the Company or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in effect for a period of 90 consecutive
days;




          (f) the commencement by the Company of a voluntary case under the federal bankruptcy laws, as
now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by the Company to the entry of an
order for relief in an involuntary case under any such law, or the consent by the Company to the
appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or similar official) of the Company or of substantially all the property of the
Company or the making by it of an assignment for the benefit of creditors or the admission by it in
writing of its inability to pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any action;




          (g) Indebtedness of the Company or any of its Subsidiaries of at least $50,000,000 in
aggregate principal amount is accelerated which acceleration has not been rescinded or annulled
after 30 days notice thereof; or




          (h) the occurrence of any other Event of Default with respect to Securities of such series as
provided in Section 3.01;



provided, however, that no event described in clause (d) or (other than with respect to a payment
default) (h) above shall constitute an Event of Default hereunder until a Responsible Officer of
the Trustee has actual knowledge thereof or until a written notice of any such event is received by
the Trustee at the Corporate Trust Office, and such notice refers to the facts underlying such
event, the Securities generally, the Company and the Indenture.




     Notwithstanding the foregoing provisions of this Section 7.01, to the extent elected by the
Company, the sole remedy for an Event of Default relating to the failure to comply with the
reporting obligations specified in Section 10.02, and for any failure to comply with the
requirements of § 314(a)(1) of the TIA, shall for the first 60 days after the occurrence of such an
Event of Default consist exclusively of the right to receive additional interest on the Securities
at an annual rate equal to 0.25% of the principal amount of the Securities. The additional interest
will accrue on all outstanding Securities from and including the date on which an Event of Default
relating to a failure to comply with the reporting obligations specified in Section 10.02 first
occurs to but not including the 60th day thereafter (or such earlier date on which the Event of
Default relating to the reporting obligations shall have been cured or waived). On such 60th day
(or earlier, if the Event of Default relating to the reporting obligations is cured or waived prior
to such 60th day), such additional interest will cease to accrue and, if the Event of Default
relating to the reporting obligations has not been cured or waived prior to such 60th day, the
Securities shall be subject to an acceleration of maturity as provided in Section 7.02(a).



     The provisions of the immediately preceding paragraph will not affect the rights of Holders in
the event of the occurrence of any other Event of Default; provided, however, that
in no event will the rate of additional interest accruing pursuant to the immediately preceding
paragraph at any time exceed 1.00% per annum, in the aggregate. In the event the Company does
not elect to pay additional interest upon an Event of Default in accordance with the immediately



35









 







preceding paragraph, the Securities shall be subject to an acceleration of maturity as provided in
Section 7.02(a). If the Company elects to pay additional interest as the sole remedy for an Event
of Default relating to the failure to comply with the reporting obligations specified in Section
10.02, and for any failure to comply with the requirements of § 314(a)(1) of the TIA in accordance
with the immediately preceding paragraph, the Company shall notify all Holders and the Trustee and
Paying Agent of such election on or before the close of business on the date on which such Event of
Default first occurs.



     Notwithstanding the foregoing provisions of this Section 7.01, if the principal or any premium
or interest on any Security is payable in a Currency other than the Currency of the United States
and such Currency is not available to the Company for making payment thereof due to the imposition
of exchange controls or other circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to Holders of the Securities by making such payment in the
Currency of the United States in an amount equal to the Currency of the United States equivalent of
the amount payable in such other Currency, as determined by the Company’s agent in accordance with
Section 3.11(c) hereof by reference to the noon buying rate in The City of New York for cable
transfers for such Currency (“Exchange Rate”), as such Exchange Rate is reported or otherwise made
available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is
not then available, on the basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 7.01, any payment made under such circumstances in the
Currency of the United States where the required payment is in a Currency other than the Currency
of the United States will not constitute an Event of Default under this Indenture.



     Section 7.02 Acceleration; Rescission and Annulment.



          (a) Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, if any one or more of the above-described Events of Default (other than an Event of
Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect to Securities of any
series at the time Outstanding, then, and in each and every such case, during the continuance of
any such Event of Default, the Trustee or the Holders of 25% or more in principal amount of the
Securities of such series then Outstanding may declare the principal (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of and all accrued but unpaid interest on all the Securities
of such series then Outstanding 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) shall become immediately due and payable. If an Event of Default
specified in Section 7.01(e) or 7.01(f) occurs and is continuing, then in every such case, the
principal amount of all of the Securities of that series then Outstanding shall automatically, and
without any declaration or any other action on the part of the Trustee or any Holder, become due
and payable immediately. Upon payment of such amounts in the Currency in which such Securities are
denominated (subject to Section 7.01 and except as otherwise provided pursuant to Section 3.01),
all obligations of the Company in respect of the payment of principal of and interest on the
Securities of such series shall terminate.




          (b) The provisions of Section 7.02(a), however, are subject to the condition that, at any time
after the principal of all the Securities of such series, to which any one or more



36









 






of the
above-described Events of Default is applicable, shall have been so declared to be due and payable,
and before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to have been rescinded and annulled, if:





               (i) the Company has paid or deposited with the Trustee or Paying Agent a sum in
the Currency in which such Securities are denominated (subject to Section 7.01 and
except as otherwise provided pursuant to Section 3.01) sufficient to pay




               (A) all amounts owing the Trustee and any predecessor trustee
hereunder under Section 11.01(a) (provided, however, that all sums
payable under this clause (A) shall be paid in U.S. Dollars);




               (B) all arrears of interest, if any, upon all the Securities of
such series (with interest, to the extent that interest thereon
shall be legally enforceable, on any overdue installment of interest
at the rate borne by such Securities at the rate or rates prescribed
therefor in such Securities); and




               (C) the principal of and premium, if any, on any Securities of
such series that have become due otherwise than by such declaration
of acceleration and interest thereon;




               (ii) every other Default and Event of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 7.06.



             (c) No such rescission shall affect any subsequent default or impair any right consequent
thereon.


             (d) For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.




     Section 7.03 Other Remedies. If the Company shall fail for a period of 30 days to pay any installment of interest on the
Securities of any series or shall fail to pay the principal of and



37









 




premium, if any, on any of the
Securities of such series when and as the same shall become due and payable, whether at Maturity,
or by call for redemption (other than pursuant to the sinking fund), by declaration as authorized
by this Indenture, or otherwise, or shall fail for a period of 30 days to make any required sinking
fund payment as to a series of Securities, then, upon demand of the Trustee, the Company will pay
to the Paying Agent for the benefit of the Holders of Securities of such series then Outstanding
the whole amount which then shall have become due and payable on all the Securities of such series,
with interest on the overdue principal and premium, if any, and (so far as the same may be legally
enforceable) on the overdue installments of interest at the rate borne by the Securities of such
series, and all amounts owing the Trustee and any predecessor trustee hereunder under Section
11.01(a).




     In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the Securities of such
series, and collect the moneys adjudged or decreed to be payable out of the property of the Company
or any other obligor upon the Securities of such series, wherever situated, in the manner provided
by law. Every recovery of judgment in any such action or other proceeding, subject to the payment
to the Trustee of all amounts owing the Trustee and any predecessor trustee hereunder under Section
11.01(a), shall be for the ratable benefit of the Holders of such series of Securities which shall
be the subject of such action or proceeding. All rights of action upon or under any of the
Securities or this Indenture may be enforced by the Trustee without the possession of any of the
Securities and without the production of any thereof at any trial or any proceeding relative
thereto.



     Section 7.04 Trustee as Attorney-in-Fact. The Trustee is hereby appointed, and each and every Holder of the Securities, by receiving and
holding the same, shall be conclusively deemed to have appointed the Trustee, the true and lawful
attorney-in-fact of such Holder, with authority to make or file (whether or not the Company shall
be in Default in respect of the payment of the principal of, or interest on, any of the
Securities), in its own name and as trustee of an express trust or otherwise as it shall deem
advisable, in any receivership, insolvency, liquidation, bankruptcy, reorganization or other
judicial proceeding relative to the Company or any other obligor upon the Securities or to their
respective creditors or property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be necessary or
advisable in order to have the claims of the Trustee and any predecessor trustee hereunder and of
the Holders of the Securities allowed in any such proceeding and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to execute and deliver any and all
other papers and documents and to do and perform any and all other acts and things, as it may deem
necessary or advisable in order to enforce in any such proceeding any of the claims of the Trustee
and any predecessor trustee hereunder and of any of such Holders in respect of any of the
Securities; and any receiver, assignee, trustee, custodian or debtor in any such proceeding is
hereby authorized, and each and every taker or Holder of the Securities, by receiving and holding
the same, shall be conclusively deemed to have authorized any such receiver, assignee, trustee,
custodian or debtor, to make any such payment or delivery only to or
on the order of the Trustee, and to pay to the Trustee any amount due it and any predecessor
trustee hereunder under Section 11.01(a);



38









 







provided, however, that nothing herein contained shall be
deemed to authorize or empower the Trustee to consent to or accept or adopt, on behalf of any
Holder of Securities, any plan of reorganization or readjustment affecting the Securities or the
rights of any Holder thereof, or to authorize or empower the Trustee to vote in respect of the
claim of any Holder of any Securities in any such proceeding.



     Section 7.05 Priorities. Any moneys or properties collected by the Trustee with respect to a series of Securities under
this Article VII shall be applied in the order following, at the date or dates fixed by the Trustee
for the distribution of such moneys or properties and, in the case of the distribution of such
moneys or properties on account of the Securities of any series, upon presentation of the
Securities of such series, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:




               First: To the payment of all amounts due to the Trustee and any predecessor trustee
hereunder under Section 11.01(a).




               Second: In case the principal of the Outstanding Securities of such series shall not
have become due and be unpaid, to the payment of interest on the Securities of such series,
in the chronological order of the Maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the rate borne by such Securities, such payments to be
made ratably to the Persons entitled thereto.




               Third: In case the principal of the Outstanding Securities of such series shall have
become due, by declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Securities of such series for principal and premium, if any, and interest,
with interest on the overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of interest at the
rate borne by the Securities of such series, and in case such moneys shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Securities of such series, then
to the payment of such principal and premium, if any, and interest without preference or
priority of principal and premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such series, ratably to the
aggregate of such principal and premium, if any, and accrued and unpaid interest.


Any surplus then remaining shall be paid to the Company or as directed by a court of competent
jurisdiction.




     Section 7.06 Control by Securityholders; Waiver of Past Defaults. The Holders of a majority in principal amount of the Securities of any series at the time
Outstanding may direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee hereunder, or of exercising any trust or power hereby conferred upon the
Trustee with respect to the Securities of such series, provided, however, that, subject to the
provisions of Sections 11.01 and 11.02, the Trustee shall have the right to decline to follow any
such direction if the Trustee
being advised by counsel determines that the action so directed may not lawfully be taken or



39









 




would
be unduly prejudicial to Holders not joining in such direction or would involve the Trustee in
personal liability. Prior to any declaration accelerating the Maturity of the Securities of any
series, the Holders of a majority in aggregate principal amount of such series of Securities at the
time Outstanding may on behalf of the Holders of all of the Securities of such series waive any
past Default or Event of Default hereunder and its consequences except a Default in the payment of
interest or any premium on or the principal of the Securities of such series. Upon any such waiver
the Company, the Trustee and the Holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever
any Default or Event of Default hereunder shall have been waived as permitted by this Section 7.06,
said Default or Event of Default shall for all purposes of the Securities of such series and this
Indenture be deemed to have been cured and to be not continuing.




     Section 7.07 Limitation on Suits. No Holder of any Security of any series shall have any right to institute any action, suit or
proceeding at law or in equity for the execution of any trust hereunder or for the appointment of a
receiver or for any other remedy hereunder, in each case with respect to an Event of Default with
respect to such series of Securities, unless such Holder previously shall have given to the Trustee
written notice of one or more of the Events of Default herein specified with respect to such series
of Securities, and unless also the Holders of 25% in principal amount of the Securities of such
series then Outstanding shall have requested the Trustee in writing to take action in respect of
the matter complained of, and unless also there shall have been offered to the Trustee security and
indemnity satisfactory to it against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after receipt of such notification, request and offer of
indemnity, shall have neglected or refused to institute any such
action, suit or proceeding, and during such 60-day period the holders
of a majority in principal amount of Outstanding Securities of such
series shall not have given the Trustee a direction inconsistent with
such request; and
such notification, request and offer of indemnity are hereby declared in every such case to be
conditions precedent to any such action, suit or proceeding by any Holder of any Security of such
series; it being understood and intended that no one or more of the Holders of Securities of such
series shall have any right in any manner whatsoever by his, her, its or their action to enforce
any right hereunder, except in the manner herein provided, and that every action, suit or
proceeding at law or in equity shall be instituted, had and maintained in the manner herein
provided and for the equal benefit of all Holders of the Outstanding Securities of such series;
provided, however, that nothing in this Indenture or in the Securities of such series shall affect
or impair the obligation of the Company, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on the Securities of such series to the respective Holders of
such Securities at the respective due dates in such Securities stated, or affect or impair the
right, which is also absolute and unconditional, of such Holders to institute suit to enforce the
payment thereof.



     Section 7.08 Undertaking for Costs. All parties to this Indenture and each Holder of any Security, by such Holder’s acceptance
thereof, shall be deemed to have agreed that any court may in its discretion require, in any
action, suit or proceeding for the enforcement of any right or remedy under this Indenture, or in
any action, suit or proceeding against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such action, suit or proceeding of an undertaking to
pay the costs of such action, suit or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any
party litigant in such action, suit or proceeding, having due regard to the



40









 







merits and good faith
of the claims or defenses made by such party litigant; provided, however, that the provisions of
this Section 7.08 shall not apply to any action, suit or proceeding instituted by the Trustee, to
any action, suit or proceeding instituted by any one or more Holders of Securities holding in the
aggregate more than 10% in principal amount of the Securities of any series Outstanding, or to any
action, suit or proceeding instituted by any Holder of Securities of any series for the enforcement
of the payment of the principal of or premium, if any, or the interest on, any of the Securities of
such series, on or after the respective due dates expressed in such Securities.



     Section 7.09 Remedies Cumulative. No remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities of
any series is intended to be exclusive of any other remedy or remedies, and each and every remedy
shall be cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. No delay or omission of the Trustee or of
any Holder of the Securities of any series to exercise any right or power accruing upon any Default
or Event of Default shall impair any such right or power or shall be construed to be a waiver of
any such Default or Event of Default or an acquiescence therein; and every power and remedy given
by this Article VII to the Trustee and to the Holders of Securities of any series, respectively,
may be exercised from time to time and as often as may be deemed expedient by the Trustee or by the
Holders of Securities of such series, as the case may be. In case the Trustee or any Holder of
Securities of any series shall have proceeded to enforce any right under this Indenture and the
proceedings for the enforcement thereof shall have been discontinued or abandoned because of waiver
or for any other reason or shall have been adjudicated adversely to the Trustee or to such Holder
of Securities, then and in every such case the Company, the Trustee and the Holders of the
Securities of such series shall severally and respectively be restored to their former positions
and rights hereunder, and thereafter all rights, remedies and powers of the Trustee and the Holders
of the Securities of such series shall continue as though no such proceedings had been taken,
except as to any matters so waived or adjudicated.



ARTICLE VIII




CONCERNING THE SECURITYHOLDERS




     Section 8.01 Evidence of Action of Securityholders. Whenever in this Indenture it is provided that the Holders of a specified percentage or a
majority in aggregate principal amount of the Securities or of any series of Securities may take
any action (including the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at the time of taking any such action the
Holders of such specified percentage or majority have joined therein may be evidenced by (a) any
instrument or any number of instruments of similar tenor executed by Securityholders in person, by
an agent or by a proxy appointed in writing, including through an electronic system for tabulating
consents operated by the Depositary for such series or otherwise (such action becoming effective,
except as herein otherwise expressly provided, when such instruments or evidence of electronic
consents are delivered to the Trustee and, where it is hereby expressly required, to the Company),
or (b) by the record of the Holders of Securities voting in favor thereof at any meeting of
Securityholders duly called and held in accordance with the provisions of Article IX, or (c) by a
combination of such instrument or instruments and any such record of such a meeting of
Securityholders.



41









 





     Section 8.02 Proof of Execution or Holding of Securities. Proof of the execution of any instrument by a Securityholder or his, her or its agent or proxy
and proof of the holding by any Person of any of the Securities shall be sufficient if made in the
following manner:



          (a) The fact and date of the execution by any Person of any such instrument may be proved (i)
by the certificate of any notary public or other officer in any jurisdiction who, by the laws
thereof, has power to take acknowledgments or proof of deeds to be recorded within such
jurisdiction, that the Person who signed such instrument did acknowledge before such notary public
or other officer the execution thereof, or (ii) by the affidavit of a witness of such execution
sworn to before any such notary or other officer. Where such execution is by a Person acting in
other than his or her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority.




          (b) The ownership of Securities of any series shall be proved by the Register of such
Securities or by a certificate of the Registrar for such series.




          (c) The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.




          (d) The Trustee may require such additional proof of any matter referred to in this Section
8.02 as it shall deem appropriate or necessary, so long as the request is a reasonable one.




          (e) If the Company shall solicit from the Holders of Securities of any series any action, the
Company may, at its option fix in advance a record date for the determination of Holders of
Securities entitled to take such action, but the Company shall have no obligation to do so. Any
such record date shall be fixed at the Company’s discretion. If such a record date is fixed, such
action may be sought or given before or after the record date, but only the Holders of Securities
of record at the close of business on such record date shall be deemed to be Holders of Securities
for the purpose of determining whether Holders of the requisite proportion of Outstanding
Securities of such series have authorized or agreed or consented to such action, and for that
purpose the Outstanding Securities of such series shall be computed as of such record date.




     Section 8.03 Persons Deemed Owners.



          (a) The Company, the Trustee and any agent of the Company or the Trustee may treat the Person
in whose name any Security is registered as the owner of such Security for the purpose of receiving
payment of principal of and premium, if any, and (subject to Section 3.08) interest, if any, on,
such Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary. All payments made to any Holder, or upon his, her or its order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and discharge the liability
for moneys payable upon such Security.




          (b) None of the Company, the Trustee, any Paying Agent or the Registrar will have any
responsibility or liability for any aspect of the records relating to or payments


42









 







made on account of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.




     Section 8.04 Effect of Consents. After an amendment, supplement, waiver or other action becomes effective as to any series of
Securities, a consent to it by a Holder of such series of Securities is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same Securities or
portion thereof, and of any Security issued upon the transfer thereof or in exchange therefor or in
place thereof, even if notation of the consent is not made on any such Security. An amendment,
supplement or waiver becomes effective in accordance with its terms and thereafter binds every
Holder.



ARTICLE IX




SECURITYHOLDERS’ MEETINGS




     Section 9.01 Purposes of Meetings. A meeting of Securityholders of any or all series may be called at any time and from time to
time pursuant to the provisions of this Article IX for any of the following purposes:



          (a) to give any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by Securityholders pursuant to any
of the provisions of Article VIII;




          (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article XI;




          (c) to consent to the execution of an Indenture or of indentures supplemental hereto pursuant
to the provisions of Section 14.02; or




          (d) to take any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Securities of any one or more or all series, as the
case may be, under any other provision of this Indenture or under applicable law.




     Section 9.02 Call of Meetings by Trustee. The Trustee may at any time call a meeting of all Securityholders of all series that may be
affected by the action proposed to be taken, to take any action specified in Section 9.01, to be
held at such time and at such place as the Trustee shall determine. Notice of every meeting of the
Securityholders of a series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed to Holders of Securities of
such series at their addresses as they shall appear on the Register of the Company. Such notice
shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting.



     Section 9.03 Call of Meetings by Company or Securityholders. In case at any time the Company or the Holders of at least 10% in aggregate principal amount of
the Securities of a series (or of all series, as the case may be) then Outstanding that may be
affected by the action proposed to be taken, shall have requested the Trustee to call a meeting of
Securityholders of such series (or of all series), by written request setting forth in reasonable
detail the action



43









 







proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Securityholders may determine the time and the
place for such meeting and may call such meeting to take any action authorized in Section 9.01, by
mailing notice thereof as provided in Section 9.02.



     Section 9.04 Qualifications for Voting. To be entitled to vote at any meeting of Securityholders, a Person shall (a) be a Holder of one
or more Securities affected by the action proposed to be taken at the meeting or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more such Securities. The
only Persons who shall be entitled to be present or to speak at any meeting of Securityholders
shall be the Persons entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its counsel.



     Section 9.05 Regulation of Meetings.



          (a) Notwithstanding any other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to
proof of the holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall deem fit.




          (b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Securityholders as provided
in Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case
may be, shall in like manner appoint a temporary chair. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.




          (c) At any meeting of Securityholders of a series, each Securityholder of such series of such
Securityholder’s proxy shall be entitled to one vote for each $1,000 principal amount of Securities
of such series Outstanding held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or her or instruments
in writing as aforesaid duly designating him or her as the Person to vote on behalf of other
Securityholders. At any meeting of the Securityholders duly called pursuant to the provisions of
Section 9.02 or 9.03 the presence of Persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum, and any such meeting may be adjourned
from time to time by a majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.



     Section 9.06 Voting. The vote upon any resolution submitted to any meeting of Securityholders of a series shall be by
written ballots on which shall be subscribed the signatures of the Holders of Securities of such
series or of their representatives by proxy and the principal



44









 







amounts of the
Securities of such series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as provided in Section
9.02. The record shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company
and the other to the Trustee to be preserved by the Trustee.



     Any record so signed and verified shall be conclusive evidence of the matters therein stated.



     Section 9.07 No Delay of Rights by Meeting. Nothing contained in this Article IX shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Securityholders of any series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to the Securityholders of such series
under any of the provisions of this Indenture or of the Securities of such series.



ARTICLE X




REPORTS BY THE COMPANY AND THE TRUSTEE AND

SECURITYHOLDERS’ LISTS




     Section 10.01 Reports by Trustee.



          (a) So long as any Securities are outstanding, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided therein. If required by Section
313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following
the date of this Indenture deliver to Holders a brief report which complies with the provisions of
such Section 313(a).




          (b) The Trustee shall, at the time of the transmission to the Holders of Securities of any
report pursuant to the provisions of this Section 10.01, file a copy of such report with each stock
exchange upon which the Securities are listed, if any, and also with the SEC in respect of a
Security listed and registered on a national securities exchange, if any. The Company agrees to
notify the Trustee when, as and if the Securities become listed on any stock exchange or any
delisting thereof.




     The Company will reimburse the Trustee for all expenses incurred in the preparation and
transmission of any report pursuant to the provisions of this Section 10.01 and of Section 10.02.



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     Section 10.02 Reports by the Company. The Company shall file with the Trustee and the SEC, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided in the Trust Indenture Act; provided that,
unless available on EDGAR, any such information, documents or reports required to be filed with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 30
days after the same is filed with the SEC; and provided further, that the filing of the reports
specified in Section 13 or 15(d) of the Exchange Act by an entity that is the direct or indirect
parent of the Company will satisfy the requirements of this Section 10.02 so long as such entity is
an obligor or guarantor on the Securities; and provided further that the reports of such entity
will not be required to include condensed consolidating financial information for the Company in a
footnote to the financial statements of such entity.



     Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates). Notwithstanding any provisions hereunder to the
contrary, the foregoing provisions of this Section 10.02 are subject, in their entirety, to the
provisions of Section 7.01.



     Section 10.03 Securityholders’ Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee:



          (a) semi-annually, within 15 days after each Record Date, but in any event not less frequently
than semi-annually, a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of Securities to which such Record Date applies, as of such Record Date,
and




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



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




ARTICLE XI




CONCERNING THE TRUSTEE




     Section 11.01 Rights of Trustees; Compensation and Indemnity. The Trustee accepts the trusts created by this Indenture upon the terms and conditions hereof,
including the following, to all of which the parties hereto and the Holders from time to time of
the Securities agree:



          (a) The Trustee shall be entitled to such compensation as the Company and the Trustee shall
from time to time agree in writing for all services rendered by it hereunder (including in any
agent capacity in which it acts). The compensation of the Trustee shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust.




46









 








The Company shall reimburse the Trustee promptly upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Trustee (including the
reasonable expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as shall be determined to have been caused by its own negligence, bad faith
or willful misconduct.



     The Company also agrees to indemnify each of the Trustee and any predecessor Trustee hereunder
for, and to hold it harmless against, any and all loss, liability, damage, claim, or expense
incurred without its own negligence, bad faith or willful misconduct, arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder and the
performance of its duties (including in any agent capacity in which it acts), as well as the costs
and expenses of defending itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except those attributable to its negligence,
willful misconduct or bad faith. 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 of its selection 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.



     As security for the performance of the obligations of the Company under this Section 11.01(a),
the Trustee shall have a lien upon all property and funds held or collected by the Trustee as such,
except funds held in trust by the Trustee to pay principal of and interest on any Securities.
Notwithstanding any provisions of this Indenture to the contrary, the obligations of the Company to
compensate and indemnify the Trustee under this Section 11.01(a) shall survive the resignation or
removal of the Trustee, the termination of this Indenture and any satisfaction and discharge under
Article XII. When the Trustee incurs expenses or renders services after an Event of Default
specified in clause (e) or (f) of Section 7.01 occurs, the expenses and compensation for the
services are intended to constitute expenses of administration under any applicable federal or
state bankruptcy, insolvency or similar laws.



          (b) The Trustee may execute any of the trusts or powers hereof and perform any duty hereunder
either directly or by its agents and attorneys and shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it hereunder.




          (c) The Trustee shall not be responsible in any manner whatsoever for the correctness of the
recitals herein or in the Securities (except its certificates of authentication thereon) contained,
all of which are made solely by the Company; and the Trustee shall not be responsible or
accountable in any manner whatsoever for or with respect to the validity or execution or
sufficiency of this Indenture or of the Securities (except its certificates of authentication
thereon), and the Trustee makes no representation with respect thereto, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by it in a Statement
of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be accountable for the use or



47









 






application by the Company of any Securities, or the proceeds of any Securities, authenticated
and delivered by the Trustee in conformity with the provisions of this Indenture.




          (d) The Trustee may consult with counsel of its selection, and, to the extent permitted by
Section 11.02, any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by the Trustee hereunder in good faith and in accordance
with such Opinion of Counsel.




          (e) The Trustee, to the extent permitted by Section 11.02, may rely upon the certificate of
the Secretary or one of the Assistant Secretaries of the Company as to the adoption of any Board
Resolution or resolution of the stockholders of the Company, and any request, direction, order or
demand of the Company mentioned herein shall be sufficiently evidenced by, and whenever in the
administration of this Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the Trustee may rely upon,
an Officer’s Certificate of the Company (unless other evidence in respect thereof be herein
specifically prescribed).




          (f) Subject to Section 11.04, the Trustee or any agent of the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have had if it were not the Trustee or such agent.




          (g) Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the Company.




          (h) Any action taken by the Trustee pursuant to any provision hereof at the request or with
the consent of any Person who at the time is the Holder of any Security shall be conclusive and
binding in respect of such Security upon all future Holders thereof or of any Security or
Securities which may be issued for or in lieu thereof in whole or in part, whether or not such
Security shall have noted thereon the fact that such request or consent had been made or given.




          (i) Subject to the provisions of Section 11.02, the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties.




          (j) Subject to the provisions of Section 11.02, the Trustee shall not be under any obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of the Securities, pursuant to any provision of this Indenture,
unless one or more of the Holders of the Securities shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred by
it therein or thereby.




48









 








          (k) Subject to the provisions of Section 11.02, the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be authorized or within its discretion
or within the rights or powers conferred upon it by this Indenture.




          (l) Subject to the provisions of Section 11.02, the Trustee shall not be deemed to have
knowledge or notice of any Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless the Holders of not less than 25% of the Outstanding
Securities notify the Trustee thereof.




          (m) Subject to the provisions of the first paragraph of Section 11.02, 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, may,
but shall not be required to, make further inquiry or investigation into such facts or matters as
it may see fit.




          (n) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder.




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




     Section 11.02 Duties of Trustee.



          (a) If one or more of the Events of Default specified in Section 7.01 with respect to the
Securities of any series shall have happened, then, during the continuance thereof, the Trustee
shall, with respect to such Securities, exercise such of the rights and powers vested in it by this
Indenture, and shall use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person’s own affairs.




          (b) None of the provisions of this Indenture shall be construed as relieving the Trustee from
liability for its own negligent action, negligent failure to act, or its
own willful misconduct, except that, anything in this Indenture contained to the contrary
notwithstanding,





          (i) unless and until an Event of Default specified in Section 7.01 with respect
to the Securities of any series shall have happened which at the time is continuing,




               (A) the Trustee undertakes to perform such duties and only such
duties with respect to the Securities of that series as are
specifically set out in this Indenture, and no implied covenants or
obligations shall be read into this Indenture



49









 







against the Trustee, whose duties and obligations shall be
determined solely by the express provisions of this Indenture; and




               (B) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Trustee, upon
certificates and opinions furnished to it pursuant to the express
provisions of this Indenture; but in the case of any such
certificates or opinions which, by the provisions of this Indenture,
are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical
calculations or other facts, statements, opinions or conclusions
stated therein);




          (ii) the Trustee shall not be liable to any Holder of Securities or to any
other Person for any error of judgment made in good faith by a Responsible Officer
or Officers of the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and




          (iii) the Trustee shall not be liable to any Holder of Securities or to any
other Person with respect to any action taken or omitted to be taken by it in good
faith, in accordance with the direction of Securityholders given as provided in
Section 7.06, relating to the time, method and place of conducting any proceeding
for any remedy available to it or exercising any trust or power conferred upon it by
this Indenture.



          (c) None of the provisions of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise to incur any financial liability in the performance of any of its duties
hereunder, 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 or liability is
not reasonably assured to it.




          (d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 11.02.




          (e) The permissive rights of the Trustee enumerated herein shall not be construed as duties.




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




          (g) No
provision of this Indenture shall be deemed to impose any duty or obligation on the
Trustee to take or omit to take any action, or suffer any action to be taken or omitted, in the
performance of its duties or obligations under this Indenture, or to exercise any


50









 







right or power thereunder, to the extent that taking or omitting to take such action or
suffering such action to be taken or omitted would violate applicable law binding upon it.




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




          (i) The rights, privileges, protections, immunities and benefits provided to the Trustee
hereunder (including its right to be indemnified) are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder and to each of its agents, custodians and other persons
duly employed by the Trustee hereunder.




          (j) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default
or Event of Default unless a Responsible Officer of the Trustee shall have received written notice
thereof at the Corporate Trust Office, and such notice references the Securities and this
Indenture.




     Section 11.03 Notice of Defaults. Within 90 days after the occurrence thereof, and if known to the Trustee, the Trustee shall give
to the Holders of the Securities of a series notice of each Default or Event of Default with
respect to the Securities of such series known to the Trustee, by transmitting such notice to
Holders at their addresses as the same shall then appear on the Register of the Company, unless
such Default shall have been cured or waived before the giving of such notice (the term “Default”
being hereby defined to be the events specified in Section 7.01, which are, or after notice or
lapse of time or both would become, Events of Default as defined in said Section). Except in the
case of a Default or Event of Default in payment of the principal of, premium, if any, or interest
on any of the Securities of such series when and as the same shall become payable, or to make any
sinking fund payment as to Securities of the same series, the Trustee shall be protected in
withholding such notice, if and so long as a Responsible Officer or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the interests of the
Holders of the Securities of such series.



     Section 11.04 Eligibility; Disqualification.



          (a) The Trustee shall at all times satisfy the requirements of TIA Section 310(a). The
Trustee shall have a combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition, and shall have a Corporate Trust Office. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section
11.04, it shall resign immediately in the manner and with the effect hereinafter specified in this
Article.




          (b) The Trustee shall comply with TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(i) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(i) are met. If
the Trustee has or shall acquire a conflicting interest within the


51









 







meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. If Section 310(b) of the Trust Indenture Act is
amended any time after the date of this Indenture to change the circumstances under which a Trustee
shall be deemed to have a conflicting interest with respect to the Securities of any series or to
change any of the definitions in connection therewith, this Section 11.04 shall be automatically
amended to incorporate such changes.




     Section 11.05 Registration and Notice; Removal. The Trustee, or any successor to it hereafter appointed, may at any time resign and be
discharged of the trusts hereby created with respect to any one or more or all series of Securities
by giving to the Company notice in writing. Such resignation shall take effect upon the
appointment of a successor Trustee and the acceptance of such appointment by such successor
Trustee. Any Trustee hereunder may be removed with respect to any series of Securities at any time
by the filing with such Trustee and the delivery to the Company of an instrument or instruments in
writing signed by the Holders of a majority in principal amount of the Securities of such series
then Outstanding, specifying such removal and the date when it shall become effective.



     If at any time:



     (1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written
request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months (or, if it is a shorter period, the period since
the initial issuance of the Securities of such series), or



     (2) the Trustee shall cease to be eligible under Section 11.04 and shall fail to resign after
written request therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months (or, if it is a shorter period, the period since
the initial issuance of the Securities of such series), or



     (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,


then, in any such case, (i) the Company by written notice to the Trustee may remove the Trustee and
appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Securityholder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period since
the initial issuance of the Securities of such series) may, on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.




     Upon its resignation or removal, any Trustee shall be entitled to the payment of reasonable
compensation for the services rendered hereunder by such Trustee and to the payment of all
reasonable expenses incurred hereunder and all moneys then due to it hereunder. The Trustee’s
rights to indemnification provided in Section 11.01(a) shall survive its resignation or removal.



     Section 11.06 Successor Trustee by Appointment.



52









 





          (a) In case at any time the Trustee shall resign, or shall be removed (unless the Trustee
shall be removed as provided in Section 11.04(b), in which event the vacancy shall be filled as
provided in said subdivision), or shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if any
public officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation with respect to the Securities of one or
more series, a successor Trustee with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one Trustee with respect to
the Securities of any series) may be appointed by the Holders of a majority in principal amount of
the Securities of that or those series then Outstanding, by an instrument or instruments in writing
signed in duplicate by such Holders and filed, one original thereof with the Company and the other
with the successor Trustee; but, until a successor Trustee shall have been so appointed by the
Holders of Securities of that or those series as herein authorized, the Company, or, in case all or
substantially all the assets of the Company shall be in the possession of one or more custodians or
receivers lawfully appointed, or of trustees in bankruptcy or reorganization proceedings (including
a trustee or trustees appointed under the provisions of the federal bankruptcy laws, as now or
hereafter constituted), or of assignees for the benefit of creditors, such receivers, custodians,
trustees or assignees, as the case may be, by an instrument in writing, shall appoint a successor
Trustee with respect to the Securities of such series. Subject to the provisions of Sections 11.04
and 11.05, upon the appointment as aforesaid of a successor Trustee with respect to the Securities
of any series, the Trustee with respect to the Securities of such series shall cease to be Trustee
hereunder. After any such appointment other than by the Holders of Securities of that or those
series, the Person making such appointment shall forthwith cause notice thereof to be mailed to the
Holders of Securities of such series at their addresses as the same shall then appear on the
Register of the Company but any successor Trustee with respect to the Securities of such series so
appointed shall, immediately and without further act, be superseded by a successor Trustee
appointed by the Holders of Securities of such series in the manner above prescribed, if such
appointment be made prior to the expiration of one year from the date of the mailing of such notice
by the Company, or by such receivers, trustees or assignees.




          (b) If any Trustee with respect to the Securities of one or more series shall resign or be
removed and a successor Trustee shall not have been appointed by the Company or by the Holders of
the Securities of such series or, if any successor Trustee so appointed shall not have accepted its
appointment within 30 days after such appointment shall have been made, the resigning Trustee at
the expense of the Company may apply to any court of competent jurisdiction for the appointment of
a successor Trustee. If in any other case a successor Trustee shall not be appointed pursuant to
the foregoing provisions of this Section 11.06 within three months after such appointment might
have been made hereunder, the Holder of any Security of the applicable series or any retiring
Trustee at the expense of the Company may apply to any court of competent jurisdiction to appoint a
successor Trustee. Such court may thereupon, in any such case, after such notice, if any, as such
court may deem proper and prescribe, appoint a successor Trustee.




          (c) Any successor Trustee appointed hereunder with respect to the Securities of one or more
series shall execute, acknowledge and deliver to its predecessor Trustee and to the Company, or to
the receivers, trustees, assignees or court appointing it, as the



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case may be, an instrument accepting such appointment hereunder, and thereupon such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations with respect to such series of such
predecessor Trustee with like effect as if originally named as Trustee hereunder, and such
predecessor Trustee, upon payment of its charges and disbursements then unpaid, shall thereupon
become obligated to pay over, and such successor Trustee shall be entitled to receive, all moneys
and properties held by such predecessor Trustee as Trustee hereunder, subject nevertheless to its
lien provided for in Section 11.01(a). Nevertheless, on the written request of the Company or of
the successor Trustee or of the Holders of at least 10% in principal amount of the Securities of
such series then Outstanding, such predecessor Trustee, upon payment of its said charges and
disbursements, shall execute and deliver an instrument transferring to such successor Trustee upon
the trusts herein expressed all the rights, powers and trusts of such predecessor Trustee and shall
assign, transfer and deliver to the successor Trustee all moneys and properties held by such
predecessor Trustee, subject nevertheless to its lien provided for in Section 11.01(a); and, upon
request of any such successor Trustee and the Company shall make, execute, acknowledge and deliver
any and all instruments in writing for more fully and effectually vesting in and confirming to such
successor Trustee all such authority, rights, powers, trusts, immunities, duties and obligations.




     Section 11.07 Successor Trustee by Merger. Any Person into which the Trustee or any successor to it in the trusts created by this Indenture
shall be merged or converted, or any Person with which it or any successor to it shall be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee or any such successor to it shall be a party, or any Person to which the Trustee or any
successor to it shall sell or otherwise transfer all or substantially all of the corporate trust
business of the Trustee, shall be the successor Trustee under this Indenture without the execution
or filing of any paper or any further act on the part of any of the parties hereto; provided that
such Person shall be otherwise qualified and eligible under this Article. In case at the time such
successor to the Trustee shall succeed to the trusts created by this Indenture with respect to one
or more series of Securities, any of such Securities shall have been authenticated but not
delivered by the Trustee then in office, any successor to such Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the
name of the successor Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Securities or in this Indenture provided that the certificate of the
Trustee shall have; provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or consolidation.



     Section 11.08 Right to Rely on Officer’s Certificate. Subject to Section 11.02, and subject to the provisions of Section 16.01 with respect to the
certificates required thereby, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence, bad faith or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s
Certificate with



54









 







respect thereto delivered
to the Trustee, and such Officer’s Certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith thereof.



     Section 11.09 Appointment of Authenticating Agent. The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the
Company to authenticate the Securities, and the Trustee shall give written notice of such
appointment to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve. Unless limited by the terms of such appointment, any such Authenticating Agent
may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by the Authenticating Agent. Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder.



     Each Authenticating Agent shall at all times be a corporation organized and doing business and
in good standing under the laws of the United States, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this
Article XI, the combined capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Article XI, it shall resign immediately in the manner and with the effect specified in this Article
XI.



     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Article XI,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section 11.09, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and
shall give written notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section 11.09.



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     The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 11.09.



     Section 11.10 Communications by Securityholders with Other Securityholders. Holders of Securities may communicate pursuant to Section 312(b) of the Trust Indenture Act with
other Holders with respect to their rights under this Indenture or the Securities. The Company,
the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust
Indenture Act with respect to such communications.



ARTICLE XII




SATISFACTION AND DISCHARGE; DEFEASANCE




     Section 12.01 Applicability of Article. If, pursuant to Section 3.01, provision is made for the defeasance of Securities of a series and
if the Securities of such series are denominated and payable only in U.S. Dollars (except as
provided pursuant to Section 3.01), then the provisions of this Article shall be applicable except
as otherwise specified pursuant to Section 3.01 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a Foreign Currency may be specified pursuant to
Section 3.01.



     Section 12.02 Satisfaction and Discharge of Indenture. This Indenture, with respect to the Securities of any series (if all series issued under this
Indenture are not to be affected), shall, upon Company Order, cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of such Securities herein
expressly provided for and rights to receive payments of principal of and premium, if any, and
interest on such Securities) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when,



          (a) either:





          (i) all Securities of such series theretofore authenticated and delivered
(other than (A) Securities that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 3.07 and (B) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 6.03) have been delivered to the Trustee for
cancellation; or




          (ii) all Securities of such series not theretofore delivered to the Trustee for
cancellation,




               (A) have become due and payable, or




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




               (C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for



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the giving of notice by the Trustee in the name, and at the
expense, of the Company, and the Company,


and in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee
or Paying Agent as trust funds in trust for the purpose an amount in the Currency in which such
Securities are denominated (except as otherwise provided pursuant to Section 3.01) sufficient to
pay and discharge the entire Indebtedness on such Securities for principal and premium, if any, and
interest to the date of such deposit (in the case of Securities that have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be; provided, however, in the event a
petition for relief under federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, is filed with respect to
the Company within 91 days after the deposit and the Trustee is required to return the moneys then
on deposit with the Trustee to the Company, the obligations of the Company under this Indenture
with respect to such Securities shall not be deemed terminated or discharged;




          (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
and




          (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 11.01 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (a)(i) of this Section, the obligations of the Trustee under Section
12.07 and the last paragraph of Section 6.03(e) shall survive.




     Section 12.03 Defeasance upon Deposit of Moneys or U.S. Government Obligations. At the Company’s option, either (a) the Company shall be deemed to have been Discharged (as
defined below) from its obligations with respect to Securities of any series on the first day after
the applicable conditions set forth below have been satisfied or (b) the Company shall cease to be
under any obligation to comply with any term, provision or condition set forth in Section 6.04 or
Section 10.02 with respect to Securities of any series (and, if so specified pursuant to Section
3.01, any other restrictive covenant added for the benefit of such series pursuant to Section 3.01)
at any time after the applicable conditions set forth below have been satisfied (such action under
clauses (a) or (b) of this paragraph in no circumstance may be construed as an Event of Default
under Section 7.01):



          (a) The Company shall have deposited or caused to be deposited irrevocably with the Trustee as
trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities of such series (i) money in an amount, or (ii) U.S. Government
Obligations (as defined below) that through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination of (i) and (ii), sufficient to pay and
discharge each installment of principal (including any mandatory sinking fund payments) of and
premium, if any, and interest on, the Outstanding Securities of such series on the dates such
installments of interest or principal and premium are due;




57









 








          (b) No Default with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit (other than a Default resulting from the borrowing of funds
and the grant of any related liens to be applied to such deposit); and




          (c) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Securities of such series will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of the Company’s exercise of its option under this Section and will
be subject to federal income tax on the same amounts and in the same manner and at the same times
as would have been the case if such action had not been exercised and, in the case of the
Securities of such series being Discharged accompanied by a ruling to that effect received from or
published by the Internal Revenue Service.




     “Discharged” means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by, and obligations under, the Securities of such series and to have
satisfied all the obligations under this Indenture relating to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive, from the trust
fund described in clause (a) above, payment of the principal of and premium, if any, and interest
on such Securities when such payments are due, (B) the Company’s obligations with respect to
Securities of such series under Sections 3.04, 3.06, 3.07, 6.02, 12.06 and 12.07 and (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder.



     “U.S. Government Obligations” means securities that are (i) direct obligations of the United
States for the payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of the United States
the timely of payment of which is unconditionally guaranteed as a full faith and credit obligation
by the United States, that, in either case under clauses (i) or (ii) are not callable or redeemable
at the action of the issuer thereof, and shall also include a depositary receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depositary receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depositary receipt.



          (d) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating to the defeasance
of this Indenture have been complied with. Notwithstanding the defeasance of this Indenture, the
obligations of the Company to the Trustee under Section 11.01 shall survive.




     Section 12.04 Repayment to Company. The Trustee and any Paying Agent shall promptly pay to the Company (or to its designee) upon
Company Order any excess moneys or U.S. Government Obligations held by them at any time, including
any such moneys or obligations held by the Trustee under any escrow trust agreement entered into
pursuant to Section 12.06. The provisions of the last paragraph of Section 6.03 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains unclaimed for two years



58









 







after the Maturity of any series of
Securities for which money or U.S. Government Obligations have been deposited pursuant to Section
12.03.



     Section 12.05 Indemnity for U.S. Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the deposited U.S. Government Obligations or the principal or
interest received on such U.S. Government Obligations.



     Section 12.06 Deposits to Be Held in Escrow. Any deposits with the Trustee referred to in Section 12.03 above shall be irrevocable (except to
the extent provided in Sections 12.04 and 12.07) and shall be made under the terms of an escrow
trust agreement. If any Outstanding Securities of a series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any
mandatory or optional sinking fund requirement, the applicable escrow trust agreement shall provide
therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. The
agreement shall provide that, upon satisfaction of any mandatory sinking fund payment requirements,
whether by deposit of moneys, application of proceeds of deposited U.S. Government Obligations or,
if permitted, by delivery of Securities, the Trustee shall pay or deliver over to the Company as
excess moneys pursuant to Section 12.04 all funds or obligations then held under the agreement and
allocable to the sinking fund payment requirements so satisfied.



     If Securities of a series with respect to which such deposits are made may be subject to later
redemption at the option of the Company or pursuant to optional sinking fund payments, the
applicable escrow trust agreement may, at the option of the Company, provide therefor. In the case
of an optional redemption in whole or in part, such agreement shall require the Company to deposit
with the Trustee on or before the date notice of redemption is given funds sufficient to pay the
Redemption Price of the Securities to be redeemed together with all unpaid interest thereon to the
Redemption Date. Upon such deposit of funds, the Trustee shall pay or deliver over to the Company
as excess funds pursuant to Section 12.04 all funds or obligations then held under such agreement
and allocable to the Securities to be redeemed. In the case of exercise of optional sinking fund
payment rights by the Company, such agreement shall, at the option of the Company, provide that
upon deposit by the Company with the Trustee of funds pursuant to such exercise the Trustee shall
pay or deliver over to the Company as excess funds pursuant to Section 12.04 all funds or
obligations then held under such agreement for such series and allocable to the Securities to be
redeemed.



     Section 12.07 Application of Trust Money.



          (a) Neither the Trustee nor any other Paying Agent shall be required to pay interest on any
moneys deposited pursuant to the provisions of this Indenture, except such as it shall agree with
the Company in writing to pay thereon. Any moneys so deposited for the payment of the principal
of, or premium, if any, or interest on the Securities of any series and remaining unclaimed for two
years after the date of the maturity of the Securities of such series or the date fixed for the
redemption of all the Securities of such series at the time outstanding, as the case may be, shall
be repaid by the Trustee or such other Paying Agent to the Company upon its written request and
thereafter, anything in this Indenture to the contrary notwithstanding, any



59









 






rights of the Holders of Securities of such series in respect of which such moneys shall have
been deposited shall be enforceable only against the Company, and all liability of the Trustee or
such other Paying Agent with respect to such moneys shall thereafter cease.




          (b) Subject to the provisions of the foregoing paragraph, any moneys which at any time shall
be deposited by the Company or on its behalf with the Trustee or any other Paying Agent for the
purpose of paying the principal of, premium, if any, and interest on any of the Securities shall be
and are hereby assigned, transferred and set over to the Trustee or such other Paying Agent in
trust for the respective Holders of the Securities for the purpose for which such moneys shall have
been deposited; but such moneys need not be segregated from other funds except to the extent
required by law.




     Section 12.08 Deposits of Non-U.S. Currencies. Notwithstanding the foregoing provisions of this Article, if the Securities of any series are
payable in a Currency other than U.S. Dollars, the Currency or the nature of the government
obligations to be deposited with the Trustee under the foregoing provisions of this Article shall
be as set forth in the Officer’s Certificate or established in the supplemental indenture under
which the Securities of such series are issued.



     Section 12.09 Reinstatement. If the Trustee or any Paying Agent is unable to apply any money or U.S. Government Obligations
in accordance with Section 12.03 by reason of any legal proceeding or by reason of any order of
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the obligations of the Company under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 12.03 until such time
as the Trustee or such Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 12.03; provided, however, that, if the Company has made any
payment of principal of or 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 U.S. Government Obligations held by the
Trustee or such Paying Agent.



ARTICLE XIII




IMMUNITY OF CERTAIN PERSONS




     Section 13.01 No Personal Liability. No recourse shall be had for the payment of the principal of, or the premium, if any, or
interest on, any Security or for any claim based thereon or otherwise in respect thereof or of the
Indebtedness represented thereby, or upon any obligation, covenant or agreement of this Indenture,
against any incorporator, stockholder, officer or director, as such, past, present or future, of
the Company or of any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitutional provision, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor



60









 




corporation, because of the
incurring of the Indebtedness hereby authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture
or in any of the Securities, or to be implied herefrom or therefrom, and that all liability, if
any, of that character against every such incorporator, stockholder, officer and director is, by
the acceptance of the Securities and as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of the Securities expressly waived and released.




ARTICLE XIV




SUPPLEMENTAL INDENTURES




     Section 14.01 Without Consent of Securityholders. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, the Company and the Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the Trustee, for any one or more of or
all the following purposes:



          (a) to add to the covenants and agreements of the Company, to be observed thereafter and
during the period, if any, in such supplemental indenture or indentures expressed, and to add
Events of Default, in each case for the protection or benefit of the Holders of all or any series
of the Securities (and if such covenants, agreements and Events of Default are to be for the
benefit of fewer than all series of Securities, stating that such covenants, agreements and Events
of Default are expressly being included for the benefit of such series as shall be identified
therein), or to surrender any right or power herein conferred upon the Company;




          (b) to delete or modify any Events of Default with respect to all or any series of the
Securities, the form and terms of which are being established pursuant to such supplemental
indenture as permitted in Section 3.01 (and, if any such Event of Default is applicable to fewer
than all such series of the Securities, specifying the series to which such Event of Default is
applicable), and to specify the rights and remedies of the Trustee and the Holders of such
Securities in connection therewith;




          (c) to add to or change any of the provisions of this Indenture to provide, change or
eliminate any restrictions on the payment of principal of or premium, if any, on Securities;
provided that any such action shall not adversely affect the interests of the Holders of Securities
of any series in any material respect;




          (d) to change or eliminate any of the provisions of this Indenture; provided that any such
change or elimination shall become effective only when there is no Outstanding Security of any
series created prior to the execution of such supplemental indenture that is entitled to the
benefit of such provision and as to which such supplemental indenture would apply;




          (e) to evidence the succession of another corporation to the Company, or successive
successions, and the assumption by such successor of the covenants and obligations of the Company
contained in the Securities of one or more series and in this Indenture or any supplemental
indenture;




61









 








          (f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to one or more series of Securities and to add to or change any
of the provisions of this Indenture as shall be necessary for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 11.06(c);




          (g) to secure any series of Securities;




          (h) to evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or 11.07
hereof as permitted by the terms thereof;




          (i) to cure any ambiguity or to correct or supplement any provision contained herein or in any
indenture supplemental hereto which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to conform the
terms hereof, as amended and supplemented, that are applicable to the
Securities of any Series to the description of the terms of such
Securities in the offering memorandum, prospectus supplement or
other offering document applicable to such Securities at the time of
initial sale thereof;




          (j) to add to or change or eliminate any provision of this Indenture as shall be necessary or
desirable in accordance with any amendments to the Trust Indenture Act;




          (k) to
add guarantors or co-obligors with respect to any series of
Securities, or to release guarantors from their guarantees of
Securities in accordance with the terms of the applicable series of
Securities;




          (l) to make any change in any series of Securities that does not adversely affect in any
material respect the interests of the Holders of such Securities;




          (m) to provide for uncertificated securities in addition to certificated securities;




          (n) to supplement any of the provisions of this Indenture to such extent as shall be necessary
to permit or facilitate the defeasance and discharge of any series of Securities; provided that any
such action shall not adversely affect the interests of the Holders of Securities of such series or
any other series of Securities;




          (o) to prohibit the authentication and delivery of additional series of Securities; or




          (p) to establish the form and terms of Securities of any series as permitted in Section 3.01,
or to authorize the issuance of additional Securities of a series previously authorized or to add
to the conditions, limitations or restrictions on the authorized amount, terms or purposes of
issue, authentication or delivery of the Securities of any series, as herein set forth, or other
conditions, limitations or restrictions thereafter to be observed.




     Subject to the provisions of Section 14.03, the Trustee is authorized to join with the Company
in the execution of any such supplemental indenture, to make the further agreements and
stipulations which may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property or assets thereunder.



     Any supplemental indenture authorized by the provisions of this Section 14.01 may be executed
by the Company and the Trustee without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 14.02.



62









 





     Section 14.02 With Consent of Securityholders; Limitations.



          (a) With the consent of the Holders (evidenced as provided in Article VIII) of a majority in
aggregate principal amount of the Outstanding Securities of each series affected by such
supplemental indenture voting separately, the Company and the Trustee may, from time to time and at
any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of such series to be affected;
provided, however, that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each such series affected thereby,





          (i) extend the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption thereof, or extend the Stated
Maturity of, or change place of payment where, or the Currency in which the
principal of and premium, if any, or interest on such Security is denominated or
payable, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 7.02, or impair the right to institute suit for
the enforcement of any payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or materially adversely affect
the economic terms of any right to convert or exchange any Security as may be
provided pursuant to Section 3.01; or




          (ii) reduce the percentage in principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any supplemental indenture,
or the consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or certain Defaults hereunder and their
consequences provided for in this Indenture; or




          (iii) modify any of the provisions of this Section, Section 7.06 or Section
6.06, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this Section
and Section 6.06, or the deletion of this proviso, in accordance with the
requirements of Sections 11.06 and 14.01(f); or




          (iv) change the Company’s obligation to pay additional amounts; or




          (v) modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.



          (b) A supplemental indenture that changes or eliminates any provision of this Indenture which
has expressly been included solely for the benefit of one or more particular



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series of Securities
or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.




          (c) It shall not be necessary for the consent of the Securityholders under this Section 14.02
to approve the particular form of any proposed supplemental indenture, but it shall be sufficient
if such consent shall approve the substance thereof.




          (d) The Company may set a record date for purposes of determining the identity of the Holders
of each series of Securities entitled to give a written consent or waive compliance by the Company
as authorized or permitted by this Section. Such record date shall not be more than 30 days prior
to the first solicitation of such consent or waiver or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 312 of the Trust Indenture
Act.




          (e) Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 14.02, the Company shall mail a notice, setting forth in
general terms the substance of such supplemental indenture, to the Holders of Securities at their
addresses as the same shall then appear in the Register of the Company. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.




     Section 14.03 Trustee Protected. Upon the request of the Company, accompanied by the Officer’s Certificate and Opinion
of Counsel required by Section 16.01 and also stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture, and evidence reasonably satisfactory to the
Trustee of consent of the Holders if the supplemental indenture is to be executed pursuant to
Section 14.02, the Trustee shall join with the Company in the execution of said supplemental
indenture unless said supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into said supplemental indenture. The Trustee shall be fully protected in
relying upon such Officer’s Certificate and an Opinion of Counsel.



     Section 14.04 Effect of Execution of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions of this Article XIV,
this Indenture shall be deemed to be modified and amended in accordance therewith and, except as
herein otherwise expressly provided, the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the Holders of all of
the Securities or of the Securities of any series affected, as the case may be, shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all purposes.



     Section 14.05 Notation on or Exchange of Securities. Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article may bear a notation in the form approved by
the Trustee as to any matter provided for in such supplemental indenture. If the Company or the
Trustee shall so 


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determine, new
 Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors of the
Company, to any modification of this Indenture contained in any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
the Securities then Outstanding in equal aggregate principal amounts, and such exchange shall be
made without cost to the Holders of the Securities.



     Section 14.06 Conformity with TIA. Every supplemental indenture executed pursuant to the provisions of this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.



ARTICLE XV




SUBORDINATION OF SECURITIES




     Section 15.01 Agreement to Subordinate. In the event a series of Securities is designated as subordinated pursuant to Section 3.01, and
except as otherwise provided in a Company Order or in one or more indentures supplemental hereto,
the Company, for itself, its successors and assigns, covenants and agrees, and each Holder of
Securities of such series by his, her or its acceptance thereof, likewise covenants and agrees,
that the payment of the principal of (and premium, if any) and interest, if any, on each and all of
the Securities of such series is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness.
In the event a series of Securities is not designated as subordinated
pursuant to Section 3.01(t),
this Article XV shall have no effect upon the Securities.



     Section 15.02 Distribution on Dissolution, Liquidation and Reorganization; Subrogation of
Securities. Subject to Section 15.01, upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment for the benefit of creditors or
any other marshalling of the assets and liabilities of the Company or otherwise (subject to the
power of a court of competent jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to
the Securities and the holders thereof by a lawful plan of reorganization under applicable
bankruptcy law):



          (a) the holders of all Senior Indebtedness shall be entitled to receive payment in full of the
principal thereof (and premium, if any) and interest due thereon before the Holders of the
Securities are entitled to receive any payment upon the principal (or premium, if any) or interest,
if any, on Indebtedness evidenced by the Securities; and




          (b) any payment or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XV shall be paid by the liquidation trustee or
agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or
their representative or representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may



65









 






have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if
any) and interest on the Senior Indebtedness held or represented by
each, to the extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and




          (c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities prohibited by the
foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice
to a Responsible Officer of the Trustee, to the holder of such Senior Indebtedness or his, her or
its representative or representatives or to the trustee or trustees under any indenture under which
any instrument evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, as calculated by the Company, for application to payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.




          (d) Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness (to the extent that
distributions otherwise payable to such holder have been applied to the payment of Senior
Indebtedness) to receive payments or distributions of cash, property or securities of the Company
applicable to Senior Indebtedness until the principal of (and premium, if any) and interest, if
any, on the Securities shall be paid in full and no such payments or distributions to the Holders
of the Securities of cash, property or securities otherwise distributable to the holders of Senior
Indebtedness shall, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of this Article XV are and are
intended solely for the purpose of defining the relative rights of the Holders of the Securities,
on the one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing contained
in this Article XV or elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and
the Holders of the Securities, the obligation of the Company, which is unconditional and absolute,
to pay to the Holders of the Securities the principal of (and premium, if any) and interest, if
any, on the Securities as and when the same shall become due and payable in accordance with their
terms, or to affect the relative rights of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness, nor shall anything herein or in the
Securities prevent the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article XV of the holders of Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy. Upon any payment or distribution of
assets of the Company referred to in this Article XV, the Trustee, subject to the provisions of
Section 15.05, shall be entitled to conclusively rely upon a certificate of the liquidating trustee
or agent or other person making any distribution to the Trustee for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereof and all other facts pertinent thereto or to this Article XV.




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     Section 15.03 No Payment on Securities in Event of Default on Senior Indebtedness. Subject to Section 15.01, no payment by the Company on account of principal (or premium, if any),
sinking funds or interest, if any, on the Securities shall be made at anytime if: (i) a default on
Senior Indebtedness exists that permits the holders of such Senior Indebtedness to accelerate its
maturity and (ii) the default is the subject of judicial proceedings or the Company has received
notice of such default. The Company may resume payments on the Securities when full payment of
amounts then due for principal (premium, if any), sinking funds and interest on Senior Indebtedness
has been made or duly provided for in money or money’s worth.



     In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee
when such payment is prohibited by the preceding paragraph of this Section 15.03, such payment
shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of
such Senior Indebtedness or their respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Company, but only to the extent that the
holders of such Senior Indebtedness (or their representative or representatives or a trustee)
notify the Trustee in writing within 90 days of such payment of the amounts then due and owing on
such Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid
to the holders of such Senior Indebtedness.



     Section 15.04 Payments on Securities Permitted. Subject to Section 15.01, nothing contained in this Indenture or in any of the Securities shall
(a) affect the obligation of the Company to make, or prevent the Company from making, at any time
except as provided in Sections 15.02 and 15.03, payments of principal of (or premium, if any) or
interest, if any, on the Securities or (b) prevent the application by the Trustee of any moneys or
assets deposited with it hereunder to the payment of or on account of the principal of (or premium,
if any) or interest, if any, on the Securities, unless a Responsible Officer of the Trustee shall
have received at its Corporate Trust Office written notice of any fact prohibiting the making of
such payment from the Company or from the holder of any Senior Indebtedness or from the trustee for
any such holder, together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such trustee more than two Business Days prior to the date
fixed for such payment.



     Section 15.05 Authorization of Securityholders to Trustee to Effect Subordination. Subject to Section 15.01, each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his, her or its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XV and appoints the Trustee
his attorney-in-fact for any and all such purposes.



     Section 15.06 Notices to Trustee. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact
known to the Company that would prohibit the making of any payment of monies or assets to or by the
Trustee in respect of the Securities of any series pursuant to the provisions of this Article XV.
Subject to Section 15.01, notwithstanding the provisions of this Article XV or any other provisions
of this Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be
charged with knowledge of the existence of any Senior Indebtedness or of any fact which would
prohibit the making of any payment of moneys or assets to or by the Trustee or such Paying Agent,
unless



67









 







and until a Responsible Officer of the Trustee or such Paying Agent shall have received (in
the case of a Responsible
Officer of the Trustee, at the Corporate Trust Office of the Trustee) written notice thereof from
the Company or from the holder of any Senior Indebtedness or from the trustee for any such holder,
together with proof satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee and, prior to the receipt of any such written notice, the Trustee shall
be entitled in all respects conclusively to presume that no such facts exist; provided, however,
that if at least two Business Days prior to the date upon which by the terms hereof any such moneys
or assets may become payable for any purpose (including, without limitation, the payment of either
the principal (or premium, if any) or interest, if any, on any Security) a Responsible Officer of
the Trustee shall not have received with respect to such moneys or assets the notice provided for
in this Section 15.06, then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such moneys or assets and to apply the same to the
purpose for which they were received, and shall not be affected by any notice to the contrary which
may be received by it within two Business Days prior to such date. The Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has
been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XV, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article XV and, if such
evidence is not furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.



     Section 15.07 Trustee as Holder of Senior Indebtedness. Subject to Section 15.01, the Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder. Nothing in this Article XV
shall apply to claims of, or payments to, the Trustee under or pursuant to Sections 7.05 or 11.01.



     Section 15.08 Modifications of Terms of Senior Indebtedness. Subject to Section 15.01, any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of their rights under any
instrument creating or evidencing Senior Indebtedness, including, without limitation, the waiver of
default thereunder, may be made or done all without notice to or assent from the Holders of the
Securities or the Trustee. No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any liability or obligation
under or in respect of, or of any of the terms, covenants or conditions of any indenture or other
instrument under which any Senior Indebtedness is outstanding or of such Senior Indebtedness,
whether or not such release is in accordance with the provisions of any applicable document, shall
in any way alter or affect any of the provisions of this Article XV or of the Securities relating
to the subordination thereof.



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     Section 15.09 Reliance on Judicial Order or Certificate of Liquidating Agent. Subject to Section 15.01, upon any payment or distribution of assets of the Company referred to
in this Article XV, the Trustee and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating
trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XV.



     Section 15.10 Satisfaction and Discharge; Defeasance and Covenant Defeasance. Subject to Section 15.01, amounts and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Article XII and not, at the time of such deposit,
prohibited to be deposited under Sections 15.02 or 15.03 shall not be subject to this Article XV.



     Section 15.11 Trustee Not Fiduciary for Holders of Senior Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or observe
only such of its covenants and obligations as are specifically set forth in this Article XV, and no
implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness. The Trustee shall not be liable to any such holder if it
shall pay over or distribute to or on behalf of Holders of Securities or the Company, or any other
Person, moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article XV or otherwise.



ARTICLE XVI




MISCELLANEOUS PROVISIONS




     Section 16.01 Certificates and Opinions as to Conditions Precedent.



          (a) Upon any request or application by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of such document is specifically
required by any provision of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.




          (b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this Indenture (other than
the certificates provided pursuant to Section 6.05 of this Indenture) shall include (i) a statement
that the Person giving such certificate or opinion has read such covenant

69









 








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




          (c) Any certificate, statement or opinion of an officer of the Company may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his or her certificate,
statement or opinion is based are erroneous. Any certificate, statement or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate, statement or opinion of, or
representations by, an officer or officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate, statement or opinion or
representations with respect to such matters are erroneous.




          (d) Any certificate, statement or opinion of an officer of the Company or of counsel to the
Company may be based, insofar as it relates to accounting matters, upon a certificate or opinion
of, or representations by, an accountant or firm of accountants, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the accounting matters upon which his or her
certificate, statement or opinion may be based are erroneous. Any certificate or opinion of any
firm of independent registered public accountants filed with the Trustee shall contain a statement
that such firm is independent.




          (e) In any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.




          (f) Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.




     Section 16.02 Trust Indenture Act Controls. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or another provision included in this Indenture which is required to be
included in this Indenture by any of the provisions of Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties or incorporated provision shall control.



     Section 16.03 Notices to the Company and Trustee. Any notice or demand authorized by this Indenture to be made upon, given or furnished to, or
filed with, the Company or the



70









 







Trustee shall be
sufficiently made, given, furnished or filed for all purposes if it shall be mailed, delivered or
telefaxed to:



          (a) the Company, at Seven Sylvan Way, Parsippany, New Jersey 07054, Attention: Legal
Department, Facsimile No.: (973) 753-6496 or at such other address or facsimile number as may have
been furnished in writing to the Trustee by the Company.




          (b) the Trustee, at the Corporate Trust Office of the Trustee, Attention: Trust, Facsimile
No.: (212) 514-6841.



Any such notice, demand or other document shall be in the English language.




     Section 16.04 Notices to Securityholders; Waiver. Any notice required or permitted to be given to Securityholders shall be sufficiently given
(unless otherwise herein expressly provided),



          (a) if to Holders, if given in writing by first class mail, postage prepaid, to such Holders
at their addresses as the same shall appear on the Register of the Company.




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




          (c) Where this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken
in reliance on such waiver. In any case where notice to Holders is given by mail; neither the
failure to mail such notice nor any defect in any notice so mailed to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders, and any notice that is mailed
in the manner herein provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so published as to any
particular Holder shall not affect the sufficiency of such notice with respect to other Holders,
and any notice that is published in the manner herein provided shall be conclusively presumed to
have been duly given.




     Section 16.05 Legal Holiday. Unless otherwise specified pursuant to Section 3.01, in any case where any Interest Payment
Date, Redemption Date or Maturity of any Security of any series shall not be a Business Day at any
Place of Payment for the Securities of that series, then payment of principal and premium, if any,
or interest need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on such
Interest Payment Date, Redemption Date or Maturity and no interest shall accrue on such payment for
the period from and after such Interest Payment Date, Redemption Date or Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such Business Day.



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     Section 16.06 Effects of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



     Section 16.07 Successors and Assigns. All covenants and agreements in this Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their permitted successors and assigns, whether
so expressed or not.



     Section 16.08 Separability Clause. 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 16.09 Benefits of Indenture. Nothing in this Indenture expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or to give to, any Person or corporation
other than the parties hereto and their successors and the Holders of the Securities any benefit or
any right, remedy or claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and
agreements in this Indenture contained shall be for the sole and exclusive benefit of the parties
hereto and their successors and of the Holders of the Securities.



     Section 16.10 Counterparts Originals. This Indenture may be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute but one and the same
instrument.



     Section 16.11 Governing Law; Waiver of Trial by Jury. This Indenture and the Securities shall be deemed to be contracts made under the law of the
State of New York, and for all purposes shall be governed by and construed in accordance with the
law of said State.



     Section 16.12 Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.



     EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.



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



	 	 	 	 	 
	 	WYNDHAM WORLDWIDE CORPORATION,

as Issuer

 	 
	 	By:  	/s/
Virginia M. Wilson	 
	 	 	Name:  	Virginia M. Wilson	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	/s/
William G. Keenan	 
	 	 	Name:  	William G. Keenan	 
	 	 	Title:  	Vice President