exv4w1






Exhibit 4.1




 





USG CORPORATION




AND




WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee




 






INDENTURE




Dated as of November 1, 2008




 






      





 









 








CROSS REFERENCE SHEET *




     Provisions of Trust Indenture Act of 1939, as amended, and Indenture to be dated as of
November 1, 2008, between USG Corporation and Wells Fargo Bank, National Association, as Trustee:



	 	 	 
	Section of the Act	 	Section of Indenture
	310(a)(1) and (2) 
	 	6.9
	310(a)(3) and (4) 
	 	Inapplicable
	310(b) 
	 	6.8 and 6.10(a), (b) and (d)
	310(c) 
	 	Inapplicable
	311(a) 
	 	6.13(a) and (c)(1) and (2)
	311(b) 
	 	6.13(b)
	311(c) 
	 	Inapplicable
	312(a) 
	 	4.1 and 4.2(a)
	312(b) 
	 	4.2(a) and (b)
	312(c) 
	 	4.2(c)
	313(a) 
	 	4.4(a)(i), (ii), (iii), (iv), (v), (vi) and (vii)
	313(b)(1) 
	 	Inapplicable
	313(b)(2) 
	 	4.4
	313(c) 
	 	4.4
	313(d) 
	 	4.4
	314(a) 
	 	4.3
	314(b) 
	 	Inapplicable
	314(c)(1) and (2) 
	 	11.5
	314(c)(3) 
	 	Inapplicable
	314(d) 
	 	Inapplicable
	314(e) 
	 	11.5
	314(f) 
	 	Inapplicable
	315(a), (c) and (d) 
	 	6.1
	315(b) 
	 	5.11
	315(e) 
	 	5.12
	316(a)(1) 
	 	5.9 and 5.10
	316(a)(2) 
	 	Not required
	316(a) (last sentence) 
	 	7.4
	316(b) 
	 	5.7
	316(c) 
	 	7.6
	317(a) 
	 	5.2
	317(b) 
	 	3.4(a) and (b)
	318(a) 
	 	11.7








 




			
	*	 	This Cross Reference Sheet is not part of the Indenture.





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     THIS INDENTURE, dated as of November 1, 2008, between USG CORPORATION, a Delaware corporation
(the “Company”), and Wells Fargo Bank, National Association, a national banking association, as
Trustee (the “Trustee”),



W I T N E S S E T H:




     WHEREAS, the Company has duly authorized the issue from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more Series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly authorized the execution
and delivery of this Indenture; and



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;



     NOW, THEREFORE:



     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities as follows:



ARTICLE ONE




DEFINITIONS




     SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act
of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust
Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities
Act as in force at the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term “generally accepted accounting principles” means such
accounting principles as are generally accepted in the United States of America at the time of any
computation. The words “herein”, “hereof” and “hereunder” and other words of similar import refer
to this Indenture as a whole, as supplemented and amended from time to time, and not to any
particular Article, Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular.



     “Additional Amounts” has the meaning specified in Section 3.8.



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     “Board of Directors” means either the board of directors of the Company or any committee of
such Board duly authorized to act hereunder, as the case may be.



     “Business Day” means any calendar day that is not a Saturday, Sunday or legal holiday in New
York, New York, and on which commercial banks are open for business in New York, New York.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or if at any time after the
execution and delivery of this Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body performing such duties on such
date.



     “Common Stock” includes any stock of any class of the Company that has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is not subject to redemption by the
Company.



     “Company” means (except as otherwise provided in Article Six) USG Corporation, a Delaware
corporation, and, subject to Article Nine, its successors and assigns.



     “Company Notice” means the confirmation of the Company signed by an officer, transmitted by
facsimile and confirmed in writing to the Trustee of the terms of the issuance of any Securities
issuable in Tranches.



     “Conversion Date” has the meaning specified in Section 2.12.



     “Conversion Event” means the cessation of use of a Foreign Currency both by the government of
the country that issued such Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, at the
date as of which this Indenture is dated, located at 230 West Monroe Street, Suite 2900, Chicago,
Illinois 60606.



     “Coupon” means any interest coupon appertaining to any Security.



     “Coupon Security” means any Security authenticated and delivered with one or more Coupons
appertaining thereto.



     “Currency” means any currency or currencies issued by the government of one or more countries
or by any reorganized confederation or association of such governments.



     “Currency Determination Agent” means the New York clearing house bank, if any, from time to
time selected by the Company for purposes of Section 2.12.



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     “Dollar” means the coin or currency of the United States of America which as of the time of
payment is legal tender for the payment of public and private debts.



     “Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 2.12.



     “Event of Default” means any event or condition specified as such in Section 5.1.



     “Exchange Rate Officer’s Certificate” means a certificate setting forth (i) the applicable
Market Exchange Rate or the applicable quotation and (ii) the Dollar or Foreign Currency amounts
payable on the basis of such Market Exchange Rate or quotation in respect of the principal of and
interest on the applicable series of Registered Securities, signed by the treasurer or any
assistant treasurer of the Company, and delivered to the Trustee.



     “Foreign Currency” means any Currency issued by the government of one or more countries other
than the United States of America or by any recognized confederation or association of such
governments.



     “Government Obligations” means securities which are (i) direct obligations of the United
States of America or the government which issued the currency in which the Securities of a
particular Series are denominated or (ii) obligations of a Person controlled or supervised by, or
acting as an agency or instrumentality of, the United States of America or the government which
issued the currency in which the Securities of such Series are denominated, the payment of which
obligations is unconditionally guaranteed by such government, and which, in either case, are full
faith and credit obligations of such government, are denominated in the currency in which the
Securities of such Series are denominated and which are not callable or redeemable at the option of
the issuer thereof and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment of interest on
principal of any such Government Obligation held by such custodian for the account of the holder of
a depository 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 depository receipt from any amount
received by the custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such depository receipt.



     “Holder”, “Holder of Securities”, “Securityholder” or other similar terms mean the bearer of
an Unregistered Security or a Registered Holder of a Registered Security and, when used with
respect to any Coupon, means the bearer thereof.



     “Indenture” means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and shall include the forms
and terms of particular Series of Securities established as contemplated hereunder.



     “interest,” when used with respect to non-interest bearing Securities, means interest payable
at maturity and, when used with respect to a Security which provides for the payment of Additional
Amounts pursuant to Section 3.8 or otherwise, includes such Additional Amounts.



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     “Market Exchange Rate” has the meaning specified in Section 2.12.



     “non-United States Person” means a Person other than a United States Person.



     “Officers’ Certificate” means a certificate signed by the president or any vice president and
by the treasurer or any assistant treasurer or the secretary or any assistant secretary of the
Company and delivered to the Trustee. Each such certificate shall include the statements provided
for in Section 11.5 to the extent applicable.



     “Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an
employee of or counsel to the Company and who shall be satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 11.5, if and to the extent required
hereby.



     “Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.



     “Original Issue Discount Security” means any Security which provides for an amount less than
the stated principal amount thereof to be due and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 5.1.



     “Outstanding” when used with reference to Securities, shall, subject to the provisions of
Section 7.4, mean, as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except




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




     (b) Securities, or portions thereof, for the payment or redemption of which moneys in
the necessary amount and in the specified currency shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been set aside,
segregated and held in trust by the Company for the holders of such Securities (if the
Company shall act as its own paying agent), provided that if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the Trustee shall have been
made for giving such notice;




     (c) Securities in substitution for which other Securities shall have been authenticated
and delivered, or which shall have been paid, pursuant to the terms of Section 2.9 (except
with respect to any such Security as to which proof satisfactory to the Trustee and the
Company is presented that such Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Company); and



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     (d) Securities discharged pursuant to Section 10.1(A) or with respect to which the
Company has effected defeasance and/or covenant defeasance as provided in Section 10.1(B),
to the extent such Securities are not reinstated pursuant to Section 10.5.



     “Paying Agent” means any Person (which may include the Company) authorized by the Company to
pay the principal of or interest, if any, on any Security on behalf of the Company.



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



     “Place of Payment”, when used with respect to the Securities of any Series, means the place or
places where the principal of and interest, if any, on the Securities of that Series are payable as
specified pursuant to Section 3.2, and initially shall mean the designated office of the Trustee at
which the corporate trust paying agent office of the Trustee shall, at any particular time, be
administered, which office is, at the date of this Indenture, located at 608 Second Avenue South,
MAC N9303-121, Minneapolis, MN 55479, Attention Corporate Trust Operations.



     “Preferred Stock” includes any stock of any class of the Company that has a preference over
Common Stock in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company.



     “principal” whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any”.



     “Registered Holder” when used with respect to a Registered Security means the person in whose
name such Security is registered in the Security register.



     “Registered Security” means any Security registered in the Security register.



     “Responsible Officer” when used with respect to the Trustee shall mean any officer within the
corporate trust department (or any successor group) of the Trustee including any vice president,
assistant vice president, assistant secretary, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Office because of his or her knowledge of and familiarity with the particular
subject.



     “Security” or “Securities” has the meaning stated in the first recital of this Indenture, or,
as the case may be, Securities that have been authenticated and delivered under this Indenture.



     “Series” or “Series of Securities” means a series of Securities. Except in Sections 1.1 -
“Outstanding,” 2.3 and 7.4 and Articles Five, Six and Eleven, the terms “Series” or “Series of
Securities” shall also mean a Tranche in the event that the applicable Series may be issued in
separate Tranches.



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     “Subsidiary” means any Person which is consolidated in the Company’s accounts and any Person
of which at least a majority of the outstanding stock having by the terms thereof ordinary voting
power to elect a majority of the directors (or Persons performing similar functions) of such Person
(irrespective of whether or not at the time stock of any other class or classes of such Person
shall have or might have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by the Company, or by one or more Subsidiaries, or by
the Company and one or more Subsidiaries.



     “Tranche” means all Securities of the same Series which have the same issue date, maturity
date, interest rate or method of determining interest, and, in the case of Original Issue Discount
Securities, which have the same issue price.



     “Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article Six, any successor trustee.



     “Trust Indenture Act of 1939” or “Trust Indenture Act” (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, as in force at the date as
of which this Indenture was originally executed.



     “United States of America” means the fifty states constituting the United States of America as
of the date of this Indenture.



     “United States Person” means, unless otherwise specified with respect to any Securities
pursuant to Section 2.3, an individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the laws of the United
States or an estate or trust the income of which is subject to United States federal income
taxation regardless of its source. For purposes of this definition, the term United States means
the United States of America (including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.



     “Unregistered Security” means any Security not registered in the Security register.



     “Valuation Date” has the meaning specified in Section 2.12.



     “vice president” when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
of “vice president”.



     “Wholly-Owned Subsidiary” means any Subsidiary in which the Company and/or its other
wholly-owned Subsidiaries own all of the outstanding capital stock (other than directors’
qualifying shares).



ARTICLE TWO




SECURITIES




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     SECTION 2.1 Forms Generally. The Securities of each Series and the Coupons, if any,
shall be substantially in such form (not inconsistent with this Indenture) as shall be established
by or pursuant to a resolution of the Company’s Board of Directors or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture (the provisions of which shall be
appropriate to reflect the terms of each Series of Securities, including the currency or
denomination, which may be Dollars or any Foreign Currency) and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations pursuant thereto, or
with any rules of any securities exchange or to conform to general usage, all as may be determined
by the officers executing such Securities and Coupons, if any, as evidenced by their execution of
the Securities and Coupons, if any.



     The definitive Securities and Coupons, if any, shall be printed, or may be produced in any
other manner, all as determined by the officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if any. Unless otherwise provided in
or pursuant to this Indenture or any Securities, the Securities shall be issued in registered form
without Coupons and shall not be issuable upon the exercise of warrants.



     SECTION 2.2 Form of Trustee’s Certificate of Authentication. The Trustee’s
certificate of authentication on all Securities shall be in substantially the following form:



     This is one of the Securities of the Series designated herein and referred to in the
within-mentioned Indenture.



	 	 	 	 	 
	 	Wells Fargo Bank, National Association,

        as Trustee

 	 
	 	By 	 	 
	 	 	  Authorized Signatory 	 
	 	 	 	 
	 	or 	 
	 
	 	 	 
	 	 	  as Authentication Agent 	 
	 	 	 
	 	By 	
 	 
	 	 	  Authorized Officer] 	 
	 	 	 	 




     SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



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     The Securities may be issued in one or more Series. There shall be established in or pursuant
to a resolution of the Company’s Board of Directors and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance of Securities of
any Series,




     (1) the title of the Securities of the Series (which title shall distinguish the
Securities of the Series from all other Securities issued by the Company);




     (2) 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 registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Sections 2.8, 2.9, 2.11 or 12.2);




     (3) if other than 100% of their principal amount, the percentage of their principal
amount at which the Securities of the Series will be offered;




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




     (5) the rate or rates, which may be fixed or variable, at which the Securities of the
Series shall bear interest, if any, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be payable and, in the case of
Registered Securities, the record dates for the determination of Holders to whom interest is
payable;




     (6) the place or places where the principal and interest on Securities of the Series
shall be payable and where Securities of the Series may be surrendered for conversion or
exchange (if other than as provided in Section 3.2);




     (7) whether any of such Securities are to be redeemable at the option of the Company,
and if so, the price or prices at which, the period or periods within which and the terms
and conditions upon which Securities of the Series may be so redeemed, in whole or in part,
at the option of the Company, pursuant to any sinking fund or otherwise;




     (8) if other than the principal amount thereof, the portion of the principal amount of
Securities of the Series which shall be payable upon declaration of acceleration of the
maturity pursuant to Section 5.1 or provable in bankruptcy pursuant to Section 5.2;




     (9) the obligation, if any, of the Company to redeem, purchase or repay Securities of
the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices in the currency in which the Securities of such Series are
payable, at which and the period or periods within 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;



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     (10) the issuance as Registered Securities or Unregistered Securities or both, and the
rights of the Holders to exchange Unregistered Securities for Registered Securities of the
Series or to exchange Registered Securities of the Series for Unregistered Securities of the
Series and the circumstances under which any such exchanges, if permitted, may be made;




     (11) if other than denominations of $1,000 and any integral multiple thereof, the
denominations, which may be in Dollars or any Foreign Currency, in which Securities of the
Series shall be issuable;




     (12) the form of the Securities (or forms thereof if Unregistered and Registered
Securities shall be issuable in such Series), including such legends as required by law or
as the Company deems necessary or appropriate, the form of any coupons or temporary global
security which may be issued and the forms of any certificates which may be required
hereunder or which the Company may require in connection with the offering, sale, delivery
or exchange of Unregistered Securities;




     (13) if other than Dollars, the Currency or Currencies in which payments of interest or
principal and other amounts are payable with respect to the Securities of the Series are to
be denominated, payable, redeemable or repurchasable, as the case may be;




     (14) whether Securities of the Series are issuable in Tranches;




     (15) whether, and under what circumstances, the Securities of the Series shall be
convertible into Securities of any other Series or convertible or exchangeable into shares
of Common Stock or Preferred Stock of the Company or other securities or property; whether
such conversion or exchange is mandatory, either at the option of the Holder or at the
option of the Company; and the terms of any right to convert or exchange Securities of any
Series, either at the option of the Holder thereof or the Company, including without
limitation the period or periods within which and the price or prices (including adjustments
thereto) at which Securities of the Series shall be converted or exchanged, in whole or in
part;




     (16) if other than the Trustee, any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Securities of such Series;




     (17) if the Securities of such Series do not bear interest, the applicable dates for
purposes of Section 4.1 hereof;




     (18) any deletions from, modifications of or additions to the Events of Default or
covenants of the Company, if any, with respect to Securities of the Series, whether or not
such Events of Default or covenants are consistent with the Events of Default or covenants
set forth herein;



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     (19) whether, under what circumstances and the Currency in which, the Company will pay
Additional Amounts as contemplated by Section 3.8 on the Securities of the Series to any
Holder who is a non-United States Person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option); and




     (20) any other terms or conditions upon which the Securities of the Series are to be
issued (which terms shall not be inconsistent with the provisions of this Indenture).



     All Securities of any one Series shall be substantially identical except as to denomination,
except as provided in the immediately succeeding paragraph, and except as may otherwise be provided
in or pursuant to such resolution of the Company’s Board of Directors or in any such indenture
supplemental hereto. All Securities of any one Series need not be issued at the same time, and
unless otherwise provided, a Series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such Series or to establish additional terms of such Series
of Securities (which additional terms shall only be applicable to unissued or additional Securities
of such Series).



     Each Series may be issued in one or more Tranches. Except as provided in the foregoing
paragraph, all Securities of a Tranche shall have the same issue date, maturity date, interest rate
or method of determining interest, and, in the case of Original Issue Discount Securities, the same
issue price.



     SECTION 2.4 Authentication and Delivery of Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver Securities of any
Series having attached thereto appropriate Coupons, if any, executed by the Company to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver such Securities to or
upon the written order of the Company, signed by both (a) its chief executive officer, president or
any vice president and (b) by its treasurer or any assistant treasurer, secretary or any assistant
secretary without any further action by the Company. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 6.1) shall be fully protected in
relying upon:




     (1) a certified copy of any resolution or resolutions of the Company’s Board of
Directors authorizing the action taken pursuant to the resolution or resolutions delivered
under clause (2) below;




     (2) a copy of any resolution or resolutions of the Company’s Board of Directors
relating to such Series, in each case certified by the secretary or an assistant secretary
of the Company;




     (3) an executed supplemental indenture, if any;



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     (4) an Officers’ Certificate setting forth the form and terms of the Securities of such
Series as required pursuant to Sections 2.1 and 2.3, respectively, and prepared in
accordance with Section 11.5;




     (5) at the option of the Company, either an Opinion of Counsel, prepared in accordance
with Section 11.5, or a letter addressed to the Trustee allowing the Trustee to rely on an
Opinion of Counsel, substantially to the effect that:




     (a) the form or forms and terms of such Securities and Coupons, if any have
been established by or pursuant to a resolution of the Company’s Board of Directors
or by a supplemental indenture as permitted by Sections 2.1 and 2.3 in conformity
with the provisions of this Indenture;




     (b) such Securities and Coupons, if any have been duly authorized, and, when
authenticated and delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Company enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors’ rights and by general
equitable principles, regardless of whether such enforceability is considered in a
proceeding in equity or at law;




     (c) the execution and delivery by the Company of the Securities and Coupons, if
any, and the related supplemental indenture, if any, will not contravene any
provisions of applicable law;




     (d) [RESERVED];




     (e) no consent, approval, authorization or order of any court or governmental
agency or body in the United States is required for the issuance of the Securities
of such Series, except such as have been obtained and such as may be required under
the blue sky laws of any jurisdiction in the United States in connection with the
purchase and distribution of the Securities of such Series;




     (f) neither the issue nor sale of the Securities of such Series will contravene
the charter or by-laws of the Company or will conflict with, result in a breach of
or constitute a default under the terms of any indenture or other agreement or
instrument material to the Company and its Subsidiaries considered as one enterprise
which is known to such counsel and to which the Company or any of its Subsidiaries
is a party or is bound, or any order or regulation known to such counsel to be
applicable to the Company or any of its Subsidiaries of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the Company or
any of its Subsidiaries; and




     (g) the authentication and delivery of the Securities of such series by the
Trustee in accordance with the directions of the Company so to do, and the



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Company’s execution and delivery of the Securities of such series, will not
violate the terms of this Indenture;


provided, however, that in the case of any Series issuable in Tranches, if the
Trustee has previously received the documents referred to in Section 2.4(1)-(5) with respect to
such Series, the Trustee shall authenticate and deliver Securities of such Series executed and
delivered by the Company for original issuance upon receipt by the Trustee of the applicable
Company Notice.




     The Trustee shall have the right to decline to authenticate and deliver any Securities and
Coupons, if any, under this Section if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken by the Company or if the issue of such Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under this Indenture in a
manner not reasonably acceptable to the Trustee.



     Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 2.10, together with a written statement (which
need not comply with Section 11.5 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.



     SECTION 2.5 Execution of Securities. The Securities shall be signed on behalf of the
Company by both (a) its chief executive officer, president or any vice president and (b) its
treasurer, any assistant treasurer, its secretary or any assistant secretary, which may, but need
not, be attested. Such signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security that has been duly authenticated and delivered by
the Trustee. Any Coupons attached to any Unregistered Security shall be executed on behalf of the
Company by the manual or facsimile signature of any such officer of the Company.



     In case any officer of the Company who shall have signed any of the Securities or Coupons
shall cease to be such officer before the Security or Coupon so signed shall be authenticated (in
the case of the Securities) and delivered by the Trustee or disposed of by the Company, such
Security or Coupon nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Security or Coupon had not ceased to be such officer of the Company; and any
Security or Coupon may be signed on behalf of the Company by such persons as, at the actual date of
the execution of such Security or Coupon, shall be the proper officers of the Company, although at
the date of the execution and delivery of this Indenture any such person was not such an officer.



     SECTION 2.6 Certificate of Authentication. Only such Securities as shall bear
thereon a certificate of authentication substantially in the form hereinbefore recited, executed by
the



12









 







Trustee by the manual signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Indenture.



     The Trustee shall not authenticate or deliver any Unregistered Security until any matured
Coupons appertaining thereto have been detached and canceled, except as otherwise provided or
permitted by this Indenture.



     SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable in denominations as shall be specified as contemplated by Section 2.3.
In the absence of any such specification with respect to the Securities of any Series, the
Securities of such Series shall be issuable in denominations of $1,000 and any multiple thereof,
which may be in Dollars or any Foreign Currency, and interest shall be computed on the basis of a
360-day year of twelve 30-day months. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of the Company
executing the same may determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.



     Each Security shall be dated the date of its authentication, shall bear interest from the date
and shall be payable on the dates, in each case, which shall be specified as contemplated by
Section 2.3.



     Interest on any Security which is payable, and is punctually paid or duly provided for, on any
interest payment date shall be paid, in the case of Registered Securities, to the person in whose
name that Security (or one or more predecessor Securities) is registered at the close of business
on the regular record date for the payment of such interest and, in the case of Unregistered
Securities, upon surrender of the Coupon appertaining thereto in respect of the interest due on
such interest payment date.



     The term “record date” as used with respect to any interest payment date (except for a date
for payment of defaulted interest) shall mean the date specified as such in the terms of the
Securities of any particular Series, or, if no such date is so specified, if such interest payment
date is the first day of a calendar month, the close of business on the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth day of a calendar
month, the close of business on the first day of such calendar month, whether or not such record
date is a Business Day.



     Any interest on any Security of any Series which is payable, but is not punctually paid or
duly provided for, on any interest payment date (called “defaulted interest” for the purpose of
this Section) shall forthwith cease to be payable to the Registered Holder on the relevant record
date by virtue of his having been such Holder; and such defaulted interest may be paid by the
Company, at its election in each case, as provided in clause (1) or clause (2) below:



13









 






     (1) The Company may elect to make payment of any defaulted interest to the persons in
whose names any such Registered 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, 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
Security of such Series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the persons entitled to such
defaulted interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such defaulted interest in respect of Registered Securities
of such Series which shall be not more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such defaulted interest and the special record date thereof to be
mailed, first class postage prepaid, to each Registered Holder at his address as it appears
in the Security register, not less than 10 days prior to such special record date. Notice
of the proposed payment of such defaulted interest and the special record date therefor
having been mailed as aforesaid, such defaulted interest in respect of Registered Securities
of such Series shall be paid to the person in whose names such Securities (or their
respective predecessor Securities) are registered on such special record date and such
defaulted interest shall no longer be payable pursuant to the following clause (2).




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



     Any defaulted interest payable in respect of any Security of any Series which is not a
Registered Security shall be payable pursuant to such procedures as may be satisfactory to the
Trustee in such manner that there is no discrimination as between the Holders of Registered
Securities and other Securities of the same Series, and notice of the payment date therefor shall
be given by the Trustee, in the name and at the expense of the Company, by publication at least
once in a newspaper of general circulation in New York, New York.



     Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.



14









 





     In the case of any Security which is converted into Common Stock or Preferred Stock of the
Company after any regular record date and on or prior to the next succeeding interest payment date
(other than any Security whose maturity is prior to such interest payment date), interest whose
stated maturity is on such interest payment date shall be payable on such interest payment date
notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Security (or one or more predecessor
Securities) is registered at the close of business on such regular record date.  Except as
otherwise expressly provided in the immediately preceding sentence, in the case of any Security
which is converted, interest whose stated maturity is after the date of conversion of such Security
shall not be payable.



     SECTION 2.8 Registration, Transfer and Exchange. The Company will keep or will cause
to be kept at the office or agency of the Trustee to be maintained for the purpose as provided in
Section 3.2 a register or registers in which, subject to such reasonable regulations as it may
prescribe, the Company will provide for the registration and transfer of Registered Securities as
is provided in this Article Two. Such register shall be in written form in the English language or
in any other form capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by the Trustee.



     Upon due presentation for registration of transfer of any Registered Security of any Series at
any such office or agency to be maintained for the purpose as provided in Section 3.2, the Company
shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same Series in authorized
denominations for a like aggregate principal amount.



     At the option of the Holder thereof, Unregistered Securities of a Series, which by their terms
are registerable as to principal and interest, may, to the extent and under the circumstances
specified pursuant to Section 2.3, be exchanged for Registered Securities of such Series, as may be
issued by the terms thereof. At the option of the Holder thereof, Registered Securities of a
Series, which by their terms provide for the issuance of Unregistered Securities, may, to the
extent and under the circumstances specified pursuant to Section 2.3, be exchanged for Unregistered
Securities of such Series. Securities so issued in exchange for other Securities shall be of any
authorized denomination and of like principal amount and maturity date, interest rate or method of
determining interest, and shall be issued upon surrender of the Securities for which they are to be
exchanged and, in the case of Coupon Securities, together with all unmatured Coupons and matured
Coupons in default appertaining thereto, at the office of the Company provided for in Section 3.2
and upon payment, if the Company shall require, of charges provided therein. Unregistered
Securities of any Series issued in exchange for Registered Securities of such Series between the
regular record date for such Registered Security and the next interest payment date will be issued
without the Coupon relating to such interest payment date, and Unregistered Securities surrendered
in exchange for Registered Securities between such dates shall be surrendered without the Coupon
relating to such interest payment date. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to



15









 







receive. Notwithstanding the foregoing, an Unregistered Security will not be delivered in
exchange for a Registered Security or Securities unless the Trustee receives a certificate signed
by the person entitled to delivery of such Security or other items or documents fulfilling such
conditions as shall be required by regulations of the United States Department of the Treasury, or
shall be notified by the Company that such a certificate shall not be required by such regulations;
provided, however, that no such Unregistered Security shall be delivered by the
Trustee if the Trustee or such agent shall have, or shall have been notified in writing by the
Company that the Company has, actual knowledge that such certificate is false.



     Upon presentation for registration of any Unregistered Securities of any Series which by its
terms is registerable as to principal, at the office or agency of the Company to be maintained as
provided in Section 3.2, such Security shall be registered as to principal in the name of the
Holder thereof and such registration shall be noted on such Security. Any Security so registered
shall be transferable on the registry books of the Company upon presentation of such Security at
such office or agency for similar notation thereon, but such Security may be discharged from
registration by being in a like manner transferred to bearer, whereupon transferability by delivery
shall be restored. Except as otherwise provided pursuant to Section 2.3 hereof, Unregistered
Securities shall continue to be subject to successive registrations and discharges from
registration at the option of the Holders thereof.



     Unregistered Securities shall be transferable by delivery, except while registered as to
principal. Registration of any Coupon Security shall not affect the transferability by delivery of
the Coupons appertaining thereto which shall continue to be payable to bearer and transferable by
delivery.



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



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



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Securities, other than
exchanges pursuant to Sections 2.11, 8.5 or 12.2 not involving any transfer.



     The Company shall not be required (i) to issue, register the transfer of or exchange any
Security during a period beginning at the opening of business 15 days before the day of mailing of
a notice of redemption of Securities for redemption under Article Twelve or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in part, except, in the
case of any Security to be redeemed in part, the portion thereof not redeemed.



16









 





     SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security or Coupon shall become mutilated, defaced or be destroyed, lost or
stolen, the Company in its discretion may execute, and upon the written request of any officer of
the Company, the Trustee shall authenticate and deliver, a new Security of the same Series or
Coupon, bearing a number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security or Coupon, or in lieu of and substitution for the Security or Coupon
so destroyed, lost or stolen. In every case the applicant for a substitute Security or Coupon
shall furnish to the Company and to the Trustee and to any agent of the Company or the Trustee such
security or indemnity as may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership thereof.



     Upon the issuance of any substitute Security or Coupon, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen,
the Company may, instead of issuing a substitute Security or Coupon, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated or defaced Security or
Coupon); provided, however, that interest represented by Coupons shall be payable
only upon presentation and surrender of such Coupons at an office or agency of the Company located
outside of the United States, unless otherwise provided pursuant to Section 2.3, if the applicant
for such payment shall furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company
and the Trustee and any agent of the Company or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership thereof.



     Every substitute Security of any Series or Coupon issued pursuant to the provisions of this
Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such Series or Coupons
duly authenticated and delivered hereunder. All Securities or Coupons shall be held and owned upon
the express condition that, to the extent permitted by the law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, destroyed, lost or
stolen Securities or Coupons and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without their surrender.



17









 





     SECTION 2.10 Cancellation of Securities. All Securities surrendered for payment,
redemption, registration of transfer or exchange, or for credit against any payment in respect of a
sinking or analogous fund and all Coupons surrendered for payment or exchange, shall, if
surrendered to the Company or any agent of the Company or the Trustee, be delivered to the Trustee
for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no Securities or
Coupons shall be issued in lieu thereof, except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall dispose of cancelled Securities in accordance with its customary
procedures. If the Company shall acquire any of the Securities and Coupons, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by such Securities and
Coupons unless and until the same are delivered to the Trustee for cancellation.



     SECTION 2.11 Temporary Securities. Pending the preparation of definitive Securities
for any Series, the Company may execute and the Trustee shall authenticate and deliver temporary
Securities for such Series (printed, lithographed, typewritten or otherwise reproduced, in each
case in form satisfactory to the Trustee). Temporary Securities of any Series may be issued as
Registered Securities or Unregistered Securities with or without Coupons attached thereto, of any
authorized denomination, and substantially in the form of the definitive Securities of such Series
but with such omissions, insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Company with the concurrence of the Trustee. Temporary Securities
may contain such reference to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall furnish definitive
Securities of such Series and thereupon temporary Securities of such Series may be surrendered in
exchange therefore without charge at each office or agency to be maintained by the Company for that
purpose pursuant to Section 3.2, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such Series a like aggregate principal amount of definitive Securities
of the same Series of authorized denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the temporary Securities of any
Series shall be entitled to the same benefits under this Indenture as definitive Securities of such
Series.



     SECTION 2.12 Currency and Manner of Payments in Respect of Securities.



     (a) With respect to Registered Securities of any Series with respect to which the Holders of
such Securities have not made the election provided for in paragraph (b) below, the following
payment provisions shall apply:




     (1) Except as provided in subparagraph (a)(2) or in paragraph (e) below, payment of the
principal of any Registered Security will be made at the Place of Payment by delivery of a
check in the Currency in which the Security is denominated on the payment date against
surrender of such Registered Security, and any interest on any Registered Security will be
paid at the Place of Payment by mailing a check in the



18









 







Currency in which the Securities were issued to the Person entitled thereto at the
address of such Person appearing on the Security register.




     (2) Payment of the principal of and interest on such Security may also, subject to
applicable laws and regulations, be made at such other place or places as may be designated
by the Company by any appropriate method.



     (b) With respect to Registered Securities of any Series, the following payment provisions
shall apply, except as otherwise provided in paragraphs (e) and (f) below:




     (1) The Company’s Board of Directors may provide with respect to any Series of such
Securities that Holders shall have the option to receive payments of principal of and
interest on such Security in any of the Currencies which may be designated for such election
in such Security (or if no such Currencies are designated, in the Currency in which the
Securities of such Series are denominated) by delivering to the Trustee a written election,
to be in form and substance satisfactory to the Trustee, not later than the close of
business on the record date immediately preceding the applicable payment date. Such
election will remain in effect for such Holder until changed by the Holder by written notice
to the Trustee (but any such change must be made not later than the close of business on the
record date immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change may be made with respect to payments to be
made on any Security with respect to which notice of redemption has been given by the
Company pursuant to Article Twelve). Any Holder of any such Security who shall not have
delivered any such election to the Trustee not later than the close of business on the
applicable record date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in paragraph (a) of this Section 2.12. Payment of principal
shall be made on the payment date against surrender of such Securities. Payment of
principal and interest shall be made at the Place of Payment by mailing a check in the
applicable currency to the Person entitled thereto at the address of such Person appearing
on the Security register.




     (2) Payment of the principal of and interest on such Security may also, subject to
applicable laws and regulations, be made at such other place or places as may be designated
by the Company by any appropriate method.



     (c) Payment of the principal of any Unregistered Security and of interest on any Coupon
Security will be made at such place or places outside the United States as may be designated by the
Company by any appropriate method only in the Currency in which the Security is payable (except as
provided in paragraph (e) below) on the payment date against surrender of the Unregistered
Security, in the case of payment of principal, or the relevant Coupon, in the case of payment of
interest. Except as provided in paragraph (e) below, payment with respect to Unregistered
Securities and Coupons will be made by check, subject to any limitations on the methods of
effecting such payment as shall be specified in the terms of the Security established as provided
in Section 2.3 and as shall be required under applicable laws and regulations. Payment of the
principal of and interest on Unregistered Securities may also,



19









 







subject to applicable laws and regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.



     (d) Not later than the fourth Business Day after the record date for each payment date, the
Trustee will deliver to the Company a written notice specifying, in the Currency in which each
Series of the Securities are denominated, the respective aggregate amounts of principal of and
interest on the Securities to be made on such payment date, specifying the amounts so payable in
respect of the Registered and the Unregistered Securities and in respect of the Registered
Securities as to which the Holders shall have elected to be paid in another Currency as provided in
paragraph (b) above. If the Company’s Board of Directors has provided for the election referred to
in paragraph (b) above and if at least one Holder has made such election, then not later than the
second Business Day preceding such record date the Company will deliver to the Trustee an Exchange
Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such
payment date. The Dollar or Foreign Currency amount receivable by Holders of Registered Securities
who have elected payment in another Currency as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business
Day (the “Valuation Date”) prior to such payment date and set forth in the applicable Exchange Rate
Officer’s Certificate.



     (e) If a Conversion Event occurs with respect to a Foreign Currency in which any of the
Securities are denominated or payable, then with respect to each date for the payment of principal
of, premium, if any, and interest on the applicable Foreign Currency denominated Securities
occurring after the last date on which the Foreign Currency was so used (the “Conversion Date”),
the Dollar shall be the currency of payment for use on each such payment date. The Dollar amount
to be paid by the Company to the Trustee and by the Trustee or any Paying Agent to the Holders of
such Securities with respect to such payment date shall be, in the case of a Foreign Currency, the
Dollar Equivalent of the Foreign Currency as determined by the Currency Determination Agent in the
manner provided in paragraphs (g) or (h) below.



     (f) If the Holder of a Registered Security elects payment in a specified Currency as provided
for by paragraph (b) and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been made in the absence
of such election; and if a Conversion Event occurs with respect to the Currency in which payment
would have been made in the absence of such election, such Holder shall receive payment in Dollars.



     (g) The “Dollar Equivalent of the Foreign Currency” shall be determined by the Currency
Determination Agent as of each Valuation Date and shall be obtained by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.



     (h) For purposes of this Section 2.12 the following terms shall have the following meanings:



     “Market Exchange Rate” shall mean for any currency the noon Dollar buying rate for that
currency for cable transfers quoted in New York City on the Valuation Date as certified for



20









 







customs purposes by the Federal Reserve Bank of New York. If such rates are not available for
any reason with respect to one or more Currencies for which an exchange rate is required, the
Currency Determination Agent shall use, in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City or in the country of issue of the currency
in question, or such other quotations as the Currency Determination Agent shall deem appropriate.
Unless otherwise specified by the Currency Determination Agent, if there is more than one market
for dealing in any currency by reason of foreign exchange regulations or otherwise, the market to
be used in respect of such currency shall be that upon which a nonresident issuer of securities
designated in such currency would purchase such currency in order to make payments in respect of
such securities.



     All decisions and determinations of the Currency Determination Agent regarding the Dollar
Equivalent of the Foreign Currency and the Market Exchange Rate as specified above shall be in its
sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company, the Trustee for the relevant series of Securities and all
Holders of such Securities.



     In the event that a Conversion Event has occurred with respect to a Foreign Currency, the
Company, after learning thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in Section 11.4 to the affected
Holders) specifying the Conversion Date.



     The Trustee shall be fully justified and protected in relying on and acting upon the
information so received by it from the Company and the Currency Determination Agent and shall not
otherwise have any duty or obligation to determine such information independently.



     SECTION 2.13 Compliance with Certain Laws and Regulations. If any Unregistered
Securities or Coupon Securities are to be issued in any Series of Securities, the Company will use
reasonable efforts to provide for arrangements and procedures designed pursuant to then applicable
laws and regulations, if any, to ensure that Unregistered Securities or Coupon Securities are sold
or resold, exchanged, transferred and paid only in compliance with such laws and regulations and
without adverse consequences to the Company.



     SECTION 2.14 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” or
“ISIN” numbers (if then generally in use), and, if so, the Trustee shall indicate the “CUSIP” or
“ISIN” numbers of the Securities in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of
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 of any change in the “CUSIP” or “ISIN”
numbers.



     SECTION 2.15 Securities in Global Form. Unless otherwise provided in or pursuant to
this Indenture or any Securities, the Securities shall be issuable in temporary or permanent global



21









 







form. If Securities of or within a Series are issuable in whole or in part in global form,
any such Security may provide that it shall represent the aggregate amount of Outstanding
Securities of such Series (or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase or decrease in the
amount, or changes in the rights of Holders, of Outstanding Securities represented thereby, shall
be made in such manner and by such Person or Persons as shall be specified therein or in the
Company order to be delivered to the Trustee pursuant to Section 2.4 or 2.11. Subject to the
provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company order. Any instructions by the Company with
respect to endorsement or deliver or redelivery of a Security in global form shall be in writing
but need not comply with Section 11.5 and need not be accompanied by an Opinion of Counsel.



     The provisions of the last paragraph of Section 2.4 shall apply to any Security in global form
if such Security was never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not comply with Section
11.5 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 2.4.



     Notwithstanding the provisions of Section 3.1, unless otherwise specified as contemplated by
Section 2.4, payment of principal of and interest on any Security in permanent global form shall be
made to the Person or Persons specified in such Security.



     SECTION 2.16 Form of Conversion Notice. The form of any conversion notice for the
conversion of Securities into shares of Common Stock, Preferred Stock or other securities of the
Company shall be in substantially the form included with the applicable form of Securities as shall
be established pursuant to Section 2.1.



ARTICLE THREE




COVENANTS OF THE ISSUER




     SECTION 3.1 Payment of Principal and Interest. The Company covenants and agrees for
the benefit of each Series of Securities that it will duly and punctually pay or cause to be paid
(in the currency in which the Securities of such Series and Coupons, if any, are payable, except as
otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided
in Section 2.12(b), (e) and (f) hereof) the principal of, and interest on, each of the Securities
of such Series in accordance with the terms of the Securities of such Series, any Coupons
appertaining thereto and this Indenture.



     The interest on Unregistered Securities shall be payable only upon presentation and surrender
of the several Coupons for such interest installments as are evidenced thereby as they



22









 







severally mature at the office of a Paying Agent outside the United States. The interest on
any temporary Unregistered Security shall be paid, as to any installment of interest evidenced by a
Coupon attached thereto, if any, only upon presentation and surrender of such Coupon, and, as to
the other installments of interest, if any, only upon presentation of such Securities for notation
thereon of the payment of such interest.



     SECTION 3.2 Offices for Payment, etc. So long as any of the Securities remain
outstanding, the Company will maintain the following for each Series: an office or agency (a)
where the Securities may be presented for payment, (b) where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided and (c) where notices and
demands to or upon the Company in respect of the Securities or of this Indenture may be served.
The Company will give to the Trustee written notice of the location of any such office or agency
and of any change of location thereof. In case the Company shall fail to so designate or maintain
any such office or agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made at the Place of Payment and notices may be
served at the Corporate Trust Office. Unless otherwise specified pursuant to Section 2.3, the
Trustee is appointed Paying Agent and Registrar.



     So long as any Coupon Securities or Unregistered Securities of any Series remain outstanding,
the Company will (except as specified pursuant to Section 2.3) maintain one or more offices or
agencies outside the United States in such city or cities as may be specified elsewhere in this
Indenture or as contemplated by Section 2.3, and shall maintain such office or offices for a period
of two years (or any period thereafter for which it is necessary in order to conform to United
States tax laws or regulations) after the principal on such Coupon Securities or Unregistered
Securities has become due and payable, with respect to such Series where Coupons appertaining to
Securities of such Series or Unregistered Securities of such Series may be surrendered or presented
for payment, or surrendered for exchange pursuant to Section 2.8 and where notices and demands to
or upon the Company in respect of Coupons appertaining to Securities of such Series or the
Unregistered Securities of such Series or of this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location and any change in the location, of any such
office or agency. If at any time the Company shall fail to maintain such required office or agency
or shall fail to furnish the Trustee with the address thereof, presentations, surrenders, notices
and demands in respect of Unregistered Securities may be made or served at the Corporate Trust
Office of the Trustee and the corporate trust office of any authenticating agent appointed
hereunder, and presentations, surrenders, notices and demands in respect of Coupons appertaining to
Securities of any Series and Unregistered Securities may be made or served at the corporate trust
office of the Trustee in the other city or cities referred to above; and the Company hereby
appoints the Trustee and any authenticating agent appointed hereunder its agents to receive all
such presentations, surrenders, notices and demands.



     SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to
each Series of Securities hereunder.



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     SECTION 3.4 Paying Agents. Whenever the Company shall appoint a Paying Agent other
than the Trustee with respect to the Securities of any Series, it will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such Agent shall agree with the Trustee,
subject to the provisions of this Section,




     (a) that it will hold all sums received by it as such Agent for the payment of the
principal of or interest on the Securities of such Series or Coupons (whether such sums have
been paid to it by the Company or by any other obligor on the Securities of such Series or
Coupons) in trust for the benefit of the Holders of the Securities of such Series or Coupons
or of the Trustee, and upon the occurrence of an Event of Default and upon the written
request of the Trustee, pay over all such sums received by it to the Trustee,




     (b) that it will give the Trustee notice of any failure by the Company (or by any other
obligor on the Securities of such Series) to make any payment of the principal of or
interest on the Securities of such Series or Coupons when the same shall be due and payable,
and




     (c) that it will give the Trustee notice of any change of address of any Holder of
which it is aware.



     The Company will, on or prior to each due date of the principal of or interest on the
Securities of such Series or Coupons, deposit with the Paying Agent a sum sufficient to pay such
principal or interest so becoming due, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of any failure to take such action.



     If the Company shall act as its own Paying Agent with respect to the Securities of any Series
or Coupons, it will, on or before each due date of the principal of or interest on the Securities
of such Series or Coupons, set aside, segregate and hold in trust for the benefit of the Holders of
the Securities of such Series or Holders of such Coupons a sum sufficient to pay such principal or
interest so becoming due. The Company will promptly notify the Trustee of any failure to take such
action.



     Anything in this Section to the contrary notwithstanding, the Company may at any time, for the
purpose of obtaining a satisfaction and discharge with respect to one or more or all Series of
Securities or Coupons hereunder, or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust for any such Series by the Company or any Paying Agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts herein contained.



     Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the provisions of Sections 10.3 and 10.4.



     SECTION 3.5 Written Statement to Trustee. The Company will deliver to the Trustee
for each Series of Securities on or before a date not more than four months after the end of each
of its fiscal years ending after the date hereof during which any Securities are outstanding a



24









 







written statement, signed by two of its officers (which need not comply with Section 11.5),
stating that in the course of the performance of their duties as officers of the Company they would
normally have knowledge of any default by the Company in the performance or fulfillment of any
covenant, agreement or condition contained in this Indenture, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof.



     SECTION 3.6 [RESERVED].



     SECTION 3.7 [RESERVED].



     SECTION 3.8 Additional Amounts. If Securities of a Series provide for the payment of
additional amounts to any Holder who is a non-United States Person in respect of any tax,
assessment or governmental charge (“Additional Amounts”), the Company will pay to the Holder of any
Security of such Series or any Coupon appertaining thereto such Additional Amounts as may be so
provided by Section 2.3. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or interest on, or in respect of, any Security of a Series or payment
of any related Coupon or the net proceeds received on the sale or exchange of a Security of a
Series, such mention shall be deemed to include mention of the payment of Additional Amounts
provided for by the terms of such Series established pursuant to Section 2.3 to the extent that, in
such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such
terms and express mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.



     Except as otherwise specified as contemplated by Section 2.3, if the Securities of a Series
provide for the payment of Additional Amounts, at least 10 days prior to each date of payment of
principal or interest on which any Additional Amount shall be payable, the Company will furnish the
Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with
a compliance certificate instructing the Trustee and such Paying Agent or Paying Agents whether
such payment of principal of or interest on the Securities of that Series shall be made to Holders
of Securities of that Series or any related Coupons who are non-United States Persons without
withholding for or on account of any tax, assessment or other governmental charge described in the
Securities of that Series. If any such withholding shall be required, then such compliance
certificate shall specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities of that Series or related Coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any of them in reliance
on any Officers’ Certificate furnished pursuant to this Section or in the event the Trustee shall
not withhold or deduct any sums as a result of the non-receipt of a compliance certificate pursuant
to this Section.



25









 





     SECTION 3.9 Calculation of Original Issue Discount. The Company shall promptly, at
the end of each calendar year, calculate the original issue discount accrued on Outstanding
Securities as of the end of such year and shall determine whether the amount of original issue
discount qualifies for the de minimis exception rule as set forth in
Section 1273(a)(3) of the Internal Revenue Code of 1986, as amended
from time to time. If such
calculated amount does not qualify for the de minimis exception rule, then the Company shall
subsequently file with the Trustee no later than January 15th of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates and accrual periods)
accrued on Outstanding Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time.



ARTICLE FOUR




SECURITYHOLDERS’ LISTS AND REPORTS BY THE

ISSUER AND THE TRUSTEE




     SECTION 4.1 Company to Furnish Trustee Information as to Names and Addresses of
Securityholders. The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee for the Securities of each Series a list in such form as the Trustee may
reasonably require of the names and addresses of the Holders of the Registered Securities of each
Series:




     (a) semiannually and not more than 15 days after each record date for the payment of
interest on such Securities, as hereinabove specified, as of such record date and on dates
to be determined pursuant to Section 2.3 for non-interest bearing securities in each year,
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 such list to be as of a date not more than 15
days prior to the time such information is furnished,


provided that if and so long as the Trustee shall be the Security registrar for such Series, such
list shall not be required to be furnished but in any event the Company shall be required to
furnish such information concerning the Holders of Coupon Securities and Unregistered Securities
which is known to it; provided, further, that the Company shall have no obligation to investigate
any matter relating to any Holder of an Unregistered Security or any Holder of a Coupon.




     SECTION 4.2 Preservation and Disclosure of Securityholders’ Lists. (a) The Trustee
for the Securities of each Series shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of each Series of
Securities contained in the most recent list furnished to it as provided in Section 4.1 or
maintained by the Trustee in its capacity as Security registrar for such Series, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 4.1 upon receipt of a new list
so furnished.



     (b) In case three or more Holders of Registered Securities of any Series (hereinafter referred
to as “applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six months preceding



26









 







the date of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in which case the applicants
must all hold Securities of such Series) or with Holders of all Securities with respect to their
rights under this Indenture or under such Securities and such application is accompanied by a copy
of the form of proxy or other communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of such application, at its election,
either




     (i) afford to such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section 4.2, or




     (ii) inform such applicants as to the approximate number of Holders of Securities of
such Series or all Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any, specified in such
application.



     If the Trustee shall elect not to afford to such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Securityholder of such
Series or all Securities, as the case may be, whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this
Section, a copy of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing, unless within five
days after such tender, the Trustee shall mail to such applicants and file with the Commission
together with a copy of the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such Series or all Securities, as the case may be, or could be in violation of
applicable law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of
such order sustaining one or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such Securityholders with
reasonable promptness after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants respecting their
application.



     (c) Each and every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent of the Company or
the Trustee shall be held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with the provisions of subsection
(b) of this Section, regardless of the source from which such



27









 







information was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under such subsection (b).



     SECTION 4.3 Reports by the Company. The Company covenants:



     (a) to file with the Trustee for the Securities of each Series, within 15 days after the
Company is required to file the same with the Commission (giving effect to any extensions thereof),
copies of the annual reports and of the information, documents, and other reports (or copies of
such portions of any of the foregoing as the Commissioner may from time to time by rules and
regulations prescribe) which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, or if the Company is not
required to file information, documents, or reports pursuant to either of such Sections, then to
file with the Trustee and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic information, documents, and
reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, or in
respect of a security listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;



     (b) to file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents, and reports
with respect to compliance by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and regulations; and



     (c) to transmit by mail to the Holders of Registered Securities in the manner and to the
extent required by Sections 4.4(a) and 11.4, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents, and reports required to be filed by the
Company pursuant to subsection (a) and (b) of this Section as may be required to be transmitted to
such Holders by rules and regulations prescribed from time to time by the Commission; provided that
any such information, documents or reports filed or furnished with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system shall be deemed to be filed
with the Trustee and Holders as of the time such information, documents or reports are filed or
furnished via EDGAR; and



     (d) to furnish to the Trustee, not less often than annually, a brief certificate from the
principal executive officer, principal financial officer or principal accounting officer of the
Company as to his or her knowledge of the Company’s compliance with all conditions and covenants
under this Indenture. For purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture.



     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).



28









 





     SECTION 4.4 Reports by the Trustee. (a) 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 pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15
following the date of this Indenture deliver to Holders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).



     (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the Trustee when the Securities
are listed on any stock exchange and of any delisting thereof.



ARTICLE FIVE




REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT




     SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default.
In case one or more of the following Events of Default (unless it is either inapplicable to a
particular Series or it is specifically deleted from or modified in the instrument establishing
such Series and the form of Security for such Series) shall have occurred and be continuing with
respect to any Series of Securities, that is to say:



     (a) default in the payment of any installment of interest upon any Security of such Series as
and when the same shall become due and payable, and continuance of such default for a period of 30
days; or



     (b) default in the payment of the principal of, or any premium on, the Securities of such
Series as and when the same shall become due and payable either at maturity, upon redemption (for
any sinking fund payment or otherwise), by declaration or otherwise; or



     (c) failure on the part of the Company duly to observe or perform any other of the covenants
or agreements on the part of the Company in the Securities of such Series, or in this Indenture
contained and relating to such Series, for a period of 60 days after the date on which written
notice specifying such failure and requiring the Company to remedy the same and stating that such
notice is a “Notice of Default” hereunder shall have been given by registered or certified mail to
the Company by the Trustee for the Securities of such Series, or to the Company and the Trustee by
the Holders of at least twenty-five percent in aggregate principal amount at maturity of the
Securities of such Series at the time outstanding; or



     (d) a default occurs under any debt of the Company having an outstanding principal amount in
excess of $50,000,000 in the aggregate which, as a result thereof, the holder(s) of such debt have
declared such debt to be due prior to its stated maturity date, or the Company is required to
repurchase or redeem such debt prior to its stated maturity and, in either case, such debt has not
been discharged in full or such acceleration or redemption has not been rescinded or annulled
within 30 days of the effectiveness thereof; or



29









 





     (e) the Company shall make an assignment for the benefit of creditors, or shall file a
petition in bankruptcy; or the Company shall be adjudicated insolvent or bankrupt, or shall
petition or shall apply to any court having jurisdiction in the premises for the appointment of a
receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of
the property of the Company; or the Company shall commence any proceeding relating to the Company
or any substantial portion of the property of the Company under any insolvency, reorganization,
arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or
liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in
this subsection (e) called “Proceeding”); or if there shall be commenced against the Company any
Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain
undischarged or unstayed for a period of 60 days; or a receiver, trustee, liquidator or
sequestrator of, or for, the Company or any substantial portion of the property of the Company
shall be appointed and shall not be discharged or unstayed within a period of 60 days; or the
Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or
the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any
substantial portion of the property of the Company; provided that a resolution or order for
winding-up the Company with a view to its consolidation, amalgamation or merger with another
company or the transfer of its assets as a whole, or substantially as a whole, to such other
company as provided in Section 9.1 shall not make the rights and remedies herein enforceable under
this subsection (e) of Section 5.1 if such last-mentioned company shall, as a part of such
consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the
resolution or the date of the order, comply with the conditions to that end stated in Section 9.1;
or



     (f) any other Event of Default provided in the Supplemental Indenture or resolution of the
Company’s Board of Directors under which such Series of Securities is issued or in the form of
Security for such Series;


then and in each and every such case (other than an Event of Default under clause (e) above), so
long as such Event of Default with respect to such Series shall not have been remedied or waived,
unless the principal of all Securities of such Series shall have already become due and payable,
either the Trustee for such Series or the Holders of not less than twenty-five percent in aggregate
principal amount at maturity of the Securities of such Series then Outstanding hereunder, by notice
in writing to the Company (and to the Trustee if given by such Holders), may declare the principal
(or, in the case of Original Issue Discount Securities, such principal amount as may be determined
in accordance with the terms thereof) of all the Securities of such Series to be due and payable
immediately, and upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such Series contained to the contrary
notwithstanding. With respect to an Event of Default described under clause (e) above, the
principal of all Securities of such Series shall become immediately due and payable without any
declaration or other act by the Trustee or the Holders. This provision, however, is subject to the
condition that if at any time after the principal of the Securities of such Series (or, in the case
of Original Issue Discount Securities, such principal amount as may be determined in accordance
with the terms thereof) shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall


30









 






have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay in the currency in which the Securities of such Series are
payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and
except as provided in Section 2.12(b), (e) and (f) hereof) all matured installments of interest, if
any, upon all the Securities of such Series and the principal of any and all Securities of such
Series which shall have become due otherwise than by such acceleration (with interest upon such
principal and, to the extent that payment of such interest is enforceable under applicable law,
upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in
the case of Original Issue Discount Securities, at the yield to maturity) to the date of such
payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel and all other expenses and
liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and
any and all defaults under this Indenture, other than the nonpayment of the principal of Securities
of such Series which shall have become due by such acceleration, shall have been remedied then and
in every such case the Holders of a majority in aggregate principal amount at maturity of the
Securities of such Series then Outstanding, by written notice to the Company and to the Trustee for
the Securities of such Series, may waive all defaults and rescind and annul such declaration and
its consequences; but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.




     SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The
Company covenants that (a) in case default shall be made in the payment of any installment of
interest on any of the Securities of any Series when such interest shall have become due and
payable, and such default shall have continued for a period of 30 days or (b) in case default shall
be made in the payment of all or any part of the principal of any of the Securities of any Series
when the same shall have become due and payable, whether upon maturity of the Securities of such
Series or upon any redemption or by declaration or otherwise, then upon demand of the Trustee for
the Securities of such Series, the Company will pay to the Trustee for the Securities of such
Series for the benefit of the Holders of the Securities of such Series and the Holders of any
Coupons appertaining thereto the whole amount that then shall have become due and payable on all
Securities of such Series or such Coupons for principal of or interest, as the case may be (with
interest to the date of such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of interest at the same
rate as the rate of interest specified in the Securities of such Series); and in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their respective agents,
attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee.



     Until such demand is made by the Trustee, the Company may pay the principal of and interest on
the Securities of any Series to the persons entitled thereto, whether or not the principal of and
interest on the Securities of such Series are overdue.



     In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee for
the Securities of such Series, in its own name and as trustee of an express trust, shall



31









 







be entitled and empowered to institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or final decree against the Company or
other obligor upon such Securities and collect in the manner provided by law out of the property of
the Company or other obligor upon such Securities and Coupons, wherever situated, the moneys
adjudged or decreed to be payable.



     In case there shall be pending proceedings relative to the Company or any other obligor upon
the Securities and Coupons under Title 11 of the United States Code or any other applicable Federal
or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Company or other obligor under the
Securities of any Series and Coupons, if any, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then
be due and payable as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:




     (a) to file and prove a claim or claims for the whole amount of principal (or, if the
Securities of such Series are Original Issue Discount Securities, such portion of the
principal amount as may be due and payable with respect to the Securities of such Series
pursuant to a declaration in accordance with Section 5.1 hereof) and interest owing and
unpaid in respect of the Securities of any Series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee,) and of the Securityholders and the Holders of any Coupons appertaining
thereto allowed in any judicial proceedings relative to the Company or other obligor upon
all Securities of any Series, or to the creditors or property of the Company or such other
obligor, and




     (b) to collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by each of the Holders
to make payments to the Trustee for the Securities of such Series, and, in the event that
such Trustee shall consent to the making of payments directly to the Securityholders, to pay
to such Trustee such amounts as shall be sufficient to cover reasonable compensation to such
Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by such Trustee and each
predecessor Trustee and all other amounts due to such Trustee or any predecessor Trustee
pursuant to Section 6.6.



32









 





     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of any Series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.



     All rights of action and of asserting claims under this Indenture, or under any of the
Securities or any Coupon appertaining thereto, may be enforced by the Trustee for the Securities of
such Series without the possession of any of the Securities of such Series or any Coupon
appertaining thereto or the production thereof at any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents
and attorneys, shall be for the ratable benefit of the Holders of the Securities and Holders of any
Coupons in respect of which such action was taken.



     In any proceedings brought by the Trustee for the Securities of such Series (and also any
proceedings involving the interpretation of any provision of this Indenture to which the Trustee
shall be a party), the Trustee shall be held to represent all the Holders of the Securities and
Coupons appertaining thereto in respect to which such action was taken, and it shall not be
necessary to make any Holders of such Securities and Coupons appertaining thereto parties to any
such proceedings.



     SECTION 5.3 Application of Proceeds. Any moneys collected by the Trustee for the
Securities of such Series pursuant to this Article in respect of the Securities of any Series shall
be applied in the following order at the date or dates fixed by such Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon presentation of the several
Securities and any Coupons appertaining thereto in respect of which moneys have been collected and
stamping (or otherwise noting) thereon the payment, or issuing Securities of such Series in reduced
principal amounts in exchange for the presented Securities of like Series if only partially paid,
or upon surrender thereof if fully paid:




     FIRST: To the payment of costs and expenses applicable to such Series in respect of
which moneys have been collected, including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and of all expenses and
liabilities incurred, including the costs and expenses of collection, and all advances made,
by the Trustee and each predecessor Trustee and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.6;




     SECOND: In case the principal of the Securities of such Series in respect of which
moneys have been collected shall not have become and be then due and payable, to the payment
of interest on the Securities of such Series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the same



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rate as the rate of interest specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or preference;




     THIRD: In case the principal of the Securities of such Series in respect of which
moneys have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of such Series for
principal and interest, with interest upon the overdue principal, and (to the extent that
payment of such interest is permissible by law and that such interest has been collected by
the Trustee) upon overdue installments of interest at the same rate as the rate of interest
specified in the Securities of such Series; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Securities of such Series, then to
the payment of such principal and interest without preference or priority of principal over
interest or of interest over principal, 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 accrued and unpaid interest; and




     FOURTH: To the payment of the remainder, if any, to the Company or to such party as a
court of competent jurisdiction shall direct.



     SECTION 5.4 Suits for Enforcement. In case an Event of Default has occurred, has not
been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.



     SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In case the Trustee
for the Securities of any Series shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case the Company and the Trustee shall
be restored respectively to their former positions and rights hereunder, and all rights, remedies
and powers of the Company, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.



     SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any Security of
any Series or Holder of any Coupon shall have any right by virtue or by availing of any provision
of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such Series then Outstanding shall have made
written request upon the Trustee to institute such action or proceedings in its own name as trustee



34









 







hereunder and shall have offered to the Trustee such reasonable indemnity, as it may require
against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 5.9; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security and by a Holder of each Coupon
appertaining thereto with every other taker and Holder of a Security or Holder of any Coupon
appertaining thereto and the Trustee, that no one or more Holders of Securities of any Series or
one or more Holders of any Coupons appertaining thereto shall have any right in any manner
whatever, by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or any other Holders of such Coupons,
or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce
any right under this Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable Series and all the Holders of Coupons
appertaining thereto. For the protection and enforcement of the provisions of this Section, each
and every Securityholder and the Trustee shall be entitled to such relief as can be given either at
law or in equity.



     SECTION 5.7 Unconditional Right of Securityholders to Institute Certain Suits.
Notwithstanding any provision in this Indenture and any provision of any Security or Coupon, the
right of any Holder of any Security and the right of any Holder of any Coupon appertaining thereto
to receive payment of the principal of and interest on such Security at the respective rates, in
the respective amount and in the currency therein prescribed on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the consent of such Holder.



     SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except as provided in Sections 2.9 and 5.6, no right or remedy herein conferred upon or reserved to
the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.



     No delay or omission of the Trustee or of any Securityholder to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every power and remedy given by this Indenture or by law to
the Trustee, to the Securityholders or to the Holder of any Coupon appertaining thereto may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee, the
Securityholders or Holders of any Coupon.



35









 





     SECTION 5.9 Control by Securityholders. The Holders of a majority in aggregate
principal amount of the Securities of each Series affected (with each Series treated as a separate
class) at the time Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such Series by this Indenture; provided
that such direction shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 6.1) the Trustee shall
have the right to decline to follow any such direction if the Trustee, being advised by counsel,
shall determine that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by a trust committee of Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forbearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of Holders of the
Securities of all Series or of the Holders of any Coupons appertaining thereto so affected not
joining in the giving of said direction, it being understood that (subject to Section 6.1) the
Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.



     Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.



     SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of the acceleration
of the maturity of the Securities of any Series as provided in Section 5.1, the Holders of a
majority in aggregate principal amount of the Securities of such Series at the time Outstanding may
on behalf of the Holders of all the Securities of such Series and Holders of all Coupons, if any,
appertaining thereto waive any past default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities of such Series. In the case of
any such waiver, the Company, the Trustee, the Holders of the Securities of such Series and the
Holder of any Coupon appertaining thereto shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.



     Upon any such waiver, such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured
and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right consequent thereon.



     SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall transmit to the Securityholders of any Series notice in the
manner and to the extent provided in Section 11.4, of all defaults which have occurred with respect
to such Series, such notice to be transmitted within 90 days after the occurrence thereof, unless
such defaults shall have been cured before the giving of such notice (the term “default” or
“defaults” for the purposes of this Section being hereby defined to mean any event or condition



36









 







which is, or with notice or lapse of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the principal of or interest on any of the
Securities of such Series or any default in the payment of any sinking fund installment or
analogous obligation in respect of any of the Securities of such Series, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of Responsible Officers of
the Trustee in good faith determines that the withholding of such notice is in the interests of the
Securityholders of such Series.



     SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs. All
parties to this Indenture agree, and each Holder of any Security and each Holder of any Coupon, by
his acceptance thereof, shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any Series holding in the aggregate more than 25% in aggregate principal amount
of the Securities of such Series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security on or after the due date
expressed in such Security.



ARTICLE SIX




CONCERNING THE TRUSTEE




     SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default. With respect to the Holders of any Series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a
particular Series and after the curing or waiving of all Events of Default which may have occurred
with respect to such Series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with respect to the
Securities of a Series has occurred (which has not been cured or waived) of which a Responsible
Officer has actual knowledge, the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person’s own affairs.



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




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



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     (i) the duties and obligations of the Trustee with respect to the Securities of
any Series shall be determined solely by the express provisions of this Indenture,
and the Trustee need only perform such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




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




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




     (c) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders pursuant to
Section 5.9 relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.



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



     Whether or not therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the conditions of this Section 6.1.



     SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:




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




     (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof
be herein specifically prescribed); and any resolution of the Company’s



38









 







Board of Directors may be evidenced to the Trustee by a copy thereof certified by the
secretary or any assistant secretary of the Company;




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




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




     (e) 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 the discretion, rights or powers conferred
upon it by this Indenture;




     (f) prior to the occurrence of any Event of Default hereunder and after the curing or
waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in writing to do so by
the Holders of not less than a majority in aggregate principal amount of the Securities of
all Series affected then Outstanding; provided that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by the Company
or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the Company upon
demand;




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



          (h) the Trustee shall not be deemed to have notice of any Default or Event of Default (other
than any Event of Default under Section 5.1(a) or 5.1(b)) unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of such Default or Event of Default
is received by the Trustee at the Corporate Trust Office of the Trustee;





	 	1.	 	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




39









 






	 	 	 	capacities hereunder, and each agent, custodian and other Person employed to
act hereunder; and
	 
	 	2.	 	the Trustee may request that the Company deliver an Officers’
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 Officers’ Certificate may be signed by and person authorized to sign an
Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.





     SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof. The recitals contained herein and in the Securities, except
the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the Securities or the
Coupons. The Trustee represents that it is duly authorized to execute and deliver this Indenture
and perform its obligations hereunder. The Trustee shall not be accountable for the use or
application by the Company of any of the Securities or of the proceeds thereof.



     SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. The Trustee,
any Paying Agent, Security registrar, or any agent of the Company or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities or Coupons with the same
rights it would have if it were not the Trustee or such agent and, subject to Sections 6.8 and
6.13, if operative, may otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not the Trustee or such
agent.



     SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section 10.4
hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be segregated from other funds
except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under any liability for interest on any moneys received by it
hereunder.



     SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim. The
Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed in writing between the Company and the Trustee in
Dollars (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Company covenants and agrees to pay or reimburse the Trustee
and each predecessor Trustee upon its request in Dollars for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The Company also covenants
to indemnify the Trustee and each predecessor Trustee for, and to



40









 







hold it harmless against, any and all loss, liability, damage, claim or expense, including
taxes (other than taxes based on the income of the Trustee), incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the reasonable costs and
expenses of defending itself against or investigating any claim (whether asserted by the Company, a
Holder or any other Person) of liability in the premises. The obligations of the Company under
this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for reasonable expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or the Holders of particular
Coupons, and the Securities are hereby subordinated to such senior claim.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1(d), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or other similar law.



     SECTION 6.7 Right of Trustee to Rely on Officers’ Certificate, etc. Subject to
Sections 6.1 and 6.2, whenever in the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate
complying with Section 11.5 delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it or under the provisions of this Indenture upon the faith
thereof.



     SECTION 6.8 Disqualification of Trustee; Conflicting Interests. If the Trustee for
the Securities of any Series has or shall acquire any conflicting interest, as defined in the Trust
Indenture Act, it shall, within 90 days after ascertaining that it has such conflicting interest,
and if the default (as defined in the Trust Indenture Act) to which such conflicting interest
relates has not been cured or waived or otherwise eliminated before the end of such 90-day period,
the Trustee shall, either eliminate such conflicting interest or resign in the manner and with the
effect specified in the Trust Indenture Act and this Indenture.



     SECTION 6.9 Persons Eligible for Appointment as Trustee. The Trustee for each Series
of Securities hereunder shall at all times be a corporation organized and doing business under the
laws of the United States of America or of any State or the District of Columbia having a combined
capital and surplus of at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal, State or District
of Columbia authority and which has a Corporate Trust Office in any State of the United States of
America. If such corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then for the



41









 







purposes of this Section, 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. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.



     SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this
Article shall become effective until acceptance of such appointment by the successor Trustee in
accordance with Section 6.11.



     (b) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with
respect to one or more or all Series of Securities by giving written notice of resignation to the
Company and by mailing notice thereof to the Holders in the manner and to the extent provided in
Section 11.4. Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees with respect to the applicable Series by written instrument in
duplicate, executed by authority of the Company’s Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If
no successor trustee shall have been so appointed with respect to any Series and have accepted
appointment within 30 days after the mailing of such notice of resignation, the resigning trustee
may petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable Series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor trustee.



     (c) In case at any time any of the following shall occur:




     (i) the Trustee shall fail to comply with the provisions of Section 6.8 with respect to
any Series of Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security or Securities of such Series
for at least six months unless the Trustee’s duty to resign is stayed in accordance with the
provisions of Section 310(b) of the Trust Indenture Act; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.9 and shall fail to resign after written request therefor by the Company or by any
Securityholder; or




     (iii) the Trustee shall become incapable of acting with respect to any Series of the
Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator 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;



42









 




then, in any such case, the Company may remove the Trustee with respect to the applicable Series of
Securities and appoint a successor trustee for such Series by written instrument, in duplicate,
executed by order of the Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 5.12, any Securityholder who has been a bona fide Holder of a Security or
Securities of such Series for at least six months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such Series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.




     (d) The Holders of a majority in aggregate principal amount of the Securities of each Series
at the time Outstanding may at any time remove the Trustee with respect to Securities of such
Series and appoint a successor trustee with respect to the Securities of such Series by delivering
to the Trustee so removed, to the successor trustee so appointed and to the Company the evidence
provided for in Section 7.1 of the action in that regard taken by the Securityholders.



     If no successor Trustee shall have been appointed with respect to such series within 30 days
after the mailing of such notice of removal, the Trustee being removed may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     (e) Any resignation or removal of the Trustee with respect to any Series and any appointment
of a successor trustee with respect to such Series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.



     SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any successor trustee
appointed as provided in Section 6.10 shall execute and deliver to the Company and to its
predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any applicable Series
shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all rights, powers, duties and obligations with respect to such Series of
its predecessor hereunder, with like effect as if originally named as trustee for such Series
hereunder; but, nevertheless, on the written request of the Company or of the successor trustee,
upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such trustee to secure any amounts then due
it pursuant to the provisions of Section 6.6.



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     If a successor trustee is appointed with respect to the Securities of one or more (but not
all) Series, the Company, the predecessor Trustee and each successor trustee with respect to the
Securities of any applicable Series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of
any Series as to which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust
or trusts under separate indentures.



     No successor trustee with respect to any Series of Securities shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.8 and eligible under the provisions of Section 6.9.



     Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the
Company shall give notice in the manner and to the extent provided in Section 11.4 to the Holders
of Securities of any Series for which such successor trustee is acting as trustee at their last
addresses as they shall appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 6.10. If the Company fails to mail
such notice within ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.



     SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
that such corporation shall be qualified under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary notwithstanding.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any Series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any Series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee 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 of such Series or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities of any Series in the name



44









 







of any predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.



     SECTION 6.13 Preferential Collection of Claims Against the Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).



ARTICLE SEVEN




CONCERNING THE SECURITYHOLDERS




     SECTION 7.1 Evidence of Action Taken by Securityholders.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in principal amount of
the Securityholders of any or all Series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such specified percentage of Securityholders
in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this Article.




	     (b) The ownership of Registered Securities shall be proved by the Security
register.





     (c) The amount of Unregistered Securities held by any Person executing any instrument or
writing as a Securityholder, the numbers of such Unregistered Securities, and the date of his
holding the same may be proved by the production of such Securities or by a certificate executed by
any trust company, bank, broker or member of a national securities exchange (wherever situated), as
depositary, if such certificate is in form satisfactory to the Trustee, showing that at the date
therein mentioned such Person had on deposit with such depositary, or exhibited to it, the
Unregistered Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person executing such instrument or writing as a Securityholder, if such
certificate or affidavit is in form satisfactory to the Trustee. The Trustee and the Company may
assume that such ownership of any Unregistered Security continues until (i) another certificate or
affidavit bearing a later date issued in respect of the same Unregistered Security is produced, or
(ii) such Unregistered Security is produced by some other person, or (iii) such Unregistered
Security is surrendered in exchange for a Registered Security, or (iv) such Unregistered Security
has been cancelled in accordance with Section 2.10.



     SECTION 7.2 Proof of Execution of Instruments. Subject to Sections 6.1 and 6.2, the
execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee.



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     SECTION 7.3 Holders to Be Treated as Owners. The Company, the Trustee and any agent
of the Company or the Trustee may deem and treat the person in whose name any Security shall be
registered upon the Security register for such Series 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 the purpose of receiving payment of or on account of the principal of
and interest on such Security and for all other purposes; and neither the Company nor the Trustee
nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Security.



     SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In determining
whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or
all Series have concurred in any direction, consent or waiver under this Indenture or whether a
quorum is present at a meeting of Holders of Securities, Securities which are owned by the Company
or any other obligor on the Securities with respect to which such determination is being made or by
any person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, and for purposes of determining the
presence of a quorum, only Securities which a Responsible Officer of the Trustee actually knows are
so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full protection in respect
of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying
all Securities, if any, known by the Company to be owned or held by or for the account of any of
the above-described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of any such
determination.



     SECTION 7.5 Right of Revocation of Action Taken. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action by
the Holders of the percentage in aggregate principal amount of the Securities of any or all Series,
as the case may be, specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and upon



46









 







all future Holders and owners of such Security and of any Securities issued in exchange or
substitution therefore, irrespective of whether or not any notation in regard thereto is made upon
any such Security. Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all Series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Securities affected by such action.



     SECTION 7.6 Record Date for Determination of Holders Entitled to Vote. The Company
may, in the circumstances permitted by the Trust Indenture Act, set a record date for the purpose
of determining the Securityholders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Securityholders. If not set by the Company prior to the first
solicitation of a Securityholder made by any Person in respect of any such action, or, in the case
of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th
day (or, if later, the date of the most recent list of Holders required to be provided pursuant to
Section 4.1) prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly appointed proxies) shall be entitled to
give or take, or vote on, the relevant action.



ARTICLE EIGHT

SUPPLEMENTAL INDENTURES




     SECTION 8.1 Supplemental Indentures Without Consent of Securityholders. The Company,
when authorized by a resolution of its Board of Directors, and the Trustee for the Securities of
any and all Series may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of the execution thereof), in form satisfactory to such Trustee, for one or more
of the following purposes:




     (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more Series any property or assets;




     (b) to evidence the succession of another corporation to the Company, or successive
successions, and the assumption by the successor corporation of the covenants, agreements
and obligations of the Company pursuant to Article Nine;




     (c) to add to the covenants and/or Events of Default of the Company such further
covenants, restrictions, conditions, provisions and/or Events of Default as its Board of
Directors and the Trustee shall consider to be for the protection of the Holders of
Securities of any or all Series and, if such additional covenants and/or Events of Default
are to be for the benefit of less than all the Series of Securities stating that such
covenants and/or Events of Default are being added solely for the benefit of such Series,
and to make the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture as herein



47









 







set forth (and if such additional Events of Default are to be for the benefit of less
than all Series of the Securities stating that such Events of Default are being added solely
for the benefit of such Series); provided, that in respect of any such additional covenant,
restriction, condition, provision and/or Events of Default such supplemental indenture may
provide for a particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such Series to waive such an Event of
Default;




     (d) to cure any ambiguity or to correct or supplement any provision contained herein or
in any supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture; or to make such other
provisions in regard to matters or questions arising under this Indenture or under any
supplemental indenture as the Company’s Board of Directors may deem necessary or desirable
and which shall not materially and adversely affect the interests of the Holders of the
Securities or the Holders of any Coupons;




     (e) to establish the form or terms of Securities of any Series as permitted by Sections
2.1 and 2.3; or




     (f) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than the one Trustee, pursuant to the
requirements of Section 6.11.



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



     Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 8.2.



     SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With the
consent (evidenced as provided in Article Seven) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of each Series affected by
such supplemental indenture (treated as one class), the Company, when authorized by a resolution of
its Board of Directors, and the Trustee for such Series of Securities may, from time to time and at
any time, enter into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of execution



48









 







thereof) for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of the Securities of each such Series; provided, that the
following modifications and amendments will not be effective against any Holder without its
consent: no such supplemental indenture shall: (a) a change in the stated maturity date of any
payment of principal or interest; (b) a reduction in the principal amount of, or premium or
interest on, any Security; (c) a reduction in the conversion rate, or increase in the conversion
price, of any Security, if applicable; (d) a change in place of payment where, or the currency in
which, any payment on the Securities is payable; (e) an impairment of a Holder’s right to sue the
Company and its Subsidiaries for the enforcement of payments due on the Securities; or (f) a
reduction in the percentage of outstanding Securities required to consent to a modification or
amendment of the Indenture or required to consent to a waiver of compliance with certain provisions
of the Indenture or certain defaults under the Indenture.



     Upon the request of the Company, accompanied by a copy of a resolution of its Board of
Directors certified by the secretary or an assistant secretary of the Company authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee for such Series
of Securities of evidence of the consent of Securityholders as aforesaid and other documents, if
any, required by Section 7.1, the Trustee for such Series of Securities shall join with the Company
in the execution of such supplemental indenture unless such supplemental indenture affects such
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case such
Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.



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



     Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Company shall give notice in the manner and to the
extent provided in Section 11.4 to the Holders of Securities of each Series affected thereby at
their addresses as they shall appear on the Securities register of the Company, setting forth in
general terms the substance of such supplemental indenture. 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.



     For the purposes of this Section 8.2 only, if the Securities of any Series are issuable upon
the exercise of warrants, each holder of an unexercised and unexpired warrant with respect to such
series shall be deemed to be a Holder of Outstanding Securities of such Series in the amount
issuable upon the exercise of such warrant. For such purposes, the ownership of any such warrant
shall be determined by the Company in a manner consistent with customary commercial practices. The
Trustee for such series shall be entitled to rely on an Officers’ Certificate as to the principal
amount of Securities of such Series in respect of which consents shall have been executed by
holders of such warrants.



49









 





     SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the Holders of
Securities of each Series and Holders of Coupons affected thereby 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 8.4 Documents to Be Given to Trustee. The Trustee, subject to the provisions
of Sections 6.1 and 6.2, shall receive an Officers’ Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this Article Eight
complies with the applicable provisions of this Indenture.



     SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures. Securities
of any Series (including any Coupons appertaining thereto) authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this Article may bear, upon
the direction of the Company, a notation in form satisfactory to the Trustee for the Securities of
such Series as to any matter provided for by such supplemental indenture or as to any action taken
at any such meeting. If the Company or the Trustee shall so determine, new Securities of any
Series and any Coupons appertaining thereto so modified as to conform, in the opinion of the
Trustee and the Company’s Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of such Series then Outstanding and any Coupons
appertaining thereto then Outstanding.



ARTICLE NINE




CONSOLIDATION, MERGER, SALE OR CONVEYANCE




     SECTION 9.1 Company May Consolidate, etc., on Certain Terms. (a) Nothing contained
in this Indenture or in any of the Securities shall prevent any consolidation or merger of the
Company with or into any other entity or entities (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or successors shall be a
party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the
property of the Company to any other entity (whether or not affiliated with the Company) authorized
to acquire and operate the same; provided, that in any such case: (i) either the Company
shall be the surviving or continuing entity or the resulting or acquiring entity, if other than the
Company, is organized and existing under the laws of a United States jurisdiction and assumes all
of the Company’s responsibilities and liabilities under the Indenture, including the payment of all
amounts due on the Securities and performance of the covenants in the Indenture; (ii) immediately
after the transaction, and giving effect to the transaction, no Event of Default under the
Indenture exists; and (iii) the Company has delivered to the Trustee an Officers’ Certificate and
an opinion of counsel, each stating that the transaction and, if a supplemental indenture is
required in connection with the transaction, the supplemental indenture



50









 







comply with the Indenture and that all conditions precedent to the transaction contained in
the Indenture have been satisfied.




     (b) If the Company consolidates or merges with or into any other entity or sells or
leases all or substantially all of the Company’s assets in compliance with the terms and
conditions of this Indenture, the resulting or acquiring entity will be substituted for the
Company in this Indenture and the Securities with the same effect as if such entity had been
an original party to this Indenture and the Securities. As a result, such successor entity
may exercise the Company’s rights and powers under the Indenture and the Securities, in the
Company’s name and, except in the case of a lease, the Company will be released from all its
liabilities and obligations under the Indenture and under the Securities.




     (c) Notwithstanding the foregoing provisions, the Company may transfer all of its
property and assets to another entity if, immediately after giving effect to the transfer,
such corporation is a Wholly-Owned Subsidiary.



     SECTION 9.2 [RESERVED].



     SECTION 9.3 Successor Corporation Substituted. In case of any such consolidation,
merger, sale or conveyance, and following such an assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with the same effect as
if it had been named herein. Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Company prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation instead of the Company
and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities and Coupons, if any, appertaining thereto,
which previously shall have been signed and delivered by the officers of the Company to the Trustee
for authentication, and any Securities which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All of the Securities and Coupons, if
any, appertaining thereto, so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities and Coupons, if any, appertaining thereto, theretofore or
thereafter issued in accordance with the terms of this Indenture as though all of such Securities
and Coupons, if any, appertaining thereto, had been issued at the date of the execution hereof.



     In case of any such consolidation, merger, sale, lease or conveyance such changes in
phraseology and form (but not in substance) may be made in the Securities and Coupons, if any,
appertaining thereto, thereafter to be issued as may be appropriate.



     In the event of any such sale or conveyance (other than a conveyance by way of lease) the
Company or any successor corporation which shall theretofore have become such in the manner
described in this Article shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.



51









 





     SECTION 9.4 Opinion of Counsel to Trustee. The Trustee, subject to the provisions of
Sections 6.1 and 6.2, shall receive an Opinion of Counsel, prepared in accordance with Section
11.5, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and
any such assumption, and any such liquidation or dissolution, complies with the applicable
provisions of this Indenture.



ARTICLE TEN




SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS




     SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any time (a) the
Company shall have paid or caused to be paid the principal of and interest on all the Securities of
any Series and Coupons, if any, appertaining thereto Outstanding hereunder (other than Securities
and Coupons which have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due and payable, or (b) the Company
shall have delivered to the Trustee for cancellation all Securities of any Series and Coupons
theretofore authenticated (other than any Securities of such Series and Coupons which have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.9) or
(c)(i) all the Securities of such Series and Coupons not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and (ii) the Company shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire amount in the
currency required (other than moneys repaid by the Trustee or any Paying Agent to the Company in
accordance with Section 10.4) and/or Government Obligations maturing as to principal and interest
in such amounts and at such times as will, in aggregate, ensure the availability of cash
sufficient, in the opinion of a firm of independent certified public accountants, to pay at
maturity or upon redemption all Securities of such Series and Coupons (other than any Securities of
such Series and Coupons which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such date of maturity as the
case may be, and if, in any such case, the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to Securities of such Series and Coupons, then
this Indenture shall cease to be of further effect with respect to Securities of such Series and
Coupons (except as to (i) rights of registration of transfer and exchange, and the Company’s right
of optional redemption, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities and Coupons, (iii) rights of Holders to receive payments of principal thereof and
interest thereon upon the original stated due dates therefore (but not upon acceleration) and
remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the rights of the
Securityholders of such Series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them), and, subject to Section 10.5, the Trustee, on
demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture with respect to



52









 







such Series; provided, that the rights of Holders of the Securities and Holders of Coupons to
receive amounts in respect of principal of and interest on the Securities and Coupons held by them
shall not be delayed longer than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Company agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection
with this Indenture, the Securities of such Series and Coupons.



     (B) In addition to the provisions of Section 10.1(A), the Company may terminate its
obligations under the Securities of any Series and this Indenture with respect to such Series,
except those obligations referred to in the penultimate paragraph of this Section 10.1, if the
Company has irrevocably deposited or caused to be deposited with the Trustee at its Corporate Trust
Office or such other office as the Trustee may designate, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Securityholders of such Series for that purpose, (i) cash in the currency required
and/or, (ii) Government Obligations maturing as to principal and interest in such amounts and at
such times as are sufficient, in the opinion of a firm of independent certified public accountants,
without consideration of any reinvestment of such principal or interest, to pay the principal of
and interest on the outstanding Securities of such Series and Coupons to maturity or redemption, as
the case may be, provided that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such Government Obligations to the payment of said principal of and
interest on the Outstanding Securities and Coupons of such Series.



     Such irrevocable trust agreement shall include, among other things, provision for (1) payment
of the principal of and interest on the Securities of such Series and Coupons when due (by
redemption, sinking fund payments or otherwise), (2) the payment of the expenses of the Trustee
incurred or to be incurred in connection with carrying out such trust provisions, (3) rights of
registration, transfer, substitution and exchange of Securities of such Series and Coupons in
accordance with the terms stated in this Indenture and (4) continuation of the rights and
obligations and immunities of the Trustee as against the Securityholders of such Series as stated
in this Indenture.



     Notwithstanding the first paragraph of this Section 10.1(B), the Company’s obligations in
Sections 2.8, 2.9, 3.1, 3.2, 3.8, 5.1, 6.6, 6.10, 10.4 and 10.5 shall survive until the Securities
of such Series and Coupons, if any, are no longer Outstanding; provided, however, that the
Company’s obligations in Section 5.1 shall survive only with respect to Events of Default as
defined in Sections 5.1(a), 5.1(b) and, to the extent relating to continuing obligations of the
Company, 5.1(c). Thereafter, the Company’s obligations in Sections 6.6, 10.4 and 10.5 shall
survive.



     After any such irrevocable deposit, accompanied by an Officers’ Certificate which shall state
that the provisions of the first two paragraphs of this Section 10.1(B) have been complied with,
and upon delivery by the Company to the Trustee of (i) an Opinion of Counsel to the effect that
either (a) as a result of such deposit and the related exercise of the Company’s option under this
Section 10.1(B) registration will not be required under the Investment Company Act of



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1940, as amended, by the Company, the trust funds representing such deposit or the Trustee or
(b) all necessary registrations under such Act have been effected, (ii) an Opinion of Counsel that
such deposit and the related exercise of the Company’s option under this Section 10.1(B) would not
cause any outstanding Security of such Series then listed on any nationally recognized or foreign
securities exchange to be delisted as a result thereof, and (iii) an Opinion of Counsel to the
effect that Securityholders of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same time as would have been the case if
such deposit and discharge had not occurred, then the Company shall be discharged of its
obligations under the Securities of such Series and this Indenture with respect to such Series
except for those surviving obligations specified above, and the Trustee upon request shall
acknowledge in writing such discharge. Prior to the delivery of such acknowledgment, the Trustee
may require the Company to deliver to it an Officers’ Certificate and Opinion of Counsel, each
stating that all conditions precedent provided for herein relating to the deposit and discharge
contemplated by this provision have been complied with, and the Trustee may also require that the
Opinion of Counsel referred to in clause (i) of this paragraph shall also state that such deposit
does not violate applicable law.




     SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 10.4, all moneys deposited with the Trustee pursuant to Section 10.1 shall be
held in trust and applied by it to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Holders of the particular Securities
of such Series and any Coupons appertaining thereto for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds except to the extent
required by law.



     SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any Series or Coupons,
all moneys then held by any Paying Agent under the provisions of this Indenture with respect to
such Series of Securities or Coupons shall, upon demand of the Company, be repaid to it or paid to
the Trustee and thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.



     SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent. Any moneys
deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of or
interest on any Security of any Series or Coupons and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Company and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company
by the Trustee for such Series or such Paying Agent, and the Holder of the Security of such Series
or Holders of Coupons appertaining thereto shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such Holder may be entitled to



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collect, and all liability of the Trustee or any Paying Agent with respect to such moneys
shall thereupon cease.



     SECTION 10.5 Reinstatement of Company’s Obligations. If the Trustee is unable to
apply any funds or Government Obligations in accordance with Section 10.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application or by reason of the Trustee’s inability to
convert any such funds or Government Obligations into the currency required to be paid with respect
to the Securities of such Series, the Company’s obligations under this Indenture and the Securities
of any Series for which such application is prohibited shall be revived and reinstated as if no
deposit had occurred pursuant to Section 10.1 until such time as the Trustee is permitted to apply
all such funds or Government Obligations in accordance with Section 10.1 or is able to convert all
such funds or Government Obligations; provided, however, that if the Company has made any payment
of interest on or principal of any of such Securities or Coupons because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Securityholders of such
Securities to receive such payment from the funds or Government Obligations held by the Trustee.



ARTICLE ELEVEN




MISCELLANEOUS PROVISIONS




     SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or Coupon appertaining thereto, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past,
present or future stockholder, officer or director, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released by the acceptance
of the Securities and Coupons, if any, by the Holders thereof and as part of the consideration for
the issue of the Securities.



     SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities or Coupons, expressed or
implied, shall give or be construed to give to any Person, firm or corporation, other than the
parties hereto, any Paying Agent and their successors hereunder and the Holders of the Securities
and Coupons, if any, any legal or equitable right, remedy or claim under this Indenture or under
any covenant or provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the Holders of the Securities and
Coupons.



     SECTION 11.3 Successors and Assigns of Company Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so expressed or not.



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     SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders. Any notice
or demand which by any provision of this Indenture is required or permitted to be given or served
by the Trustee, by the Holders of Securities, or by the Holders of Coupons to or on the Company may
be given or served by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Company is filed by the
Company with the Trustee) to USG Corporation, P.O. Box 6721, Chicago, Illinois 60680-6721,
attention of the Legal Department. Any notice, direction, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made at the Corporate Trust Office.



     Where this Indenture provides for notice to Holders of any event, (1) if any of the Securities
affected by such event are Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed by first-class mail, postage prepaid
to such Registered Holders as their names and addresses appear in the Security register within the
time prescribed and (2) if any of the Securities affected by such event are Unregistered Securities
or Coupon Securities, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if published once in a newspaper of general circulation in New York, New York, within the
time prescribed. 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 upon 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 which is
mailed in the manner herein provided shall be conclusively presumed to have been duly given.



     In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Company and Securityholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.



     SECTION 11.5 Officers’ Certificates and Opinions of Counsel; Statements to Be Contained
Therein. Upon any application or demand by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (a)
a statement that the person making such certificate or opinion has read such covenant



56









 







or condition, (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with and (d) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with.



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



     Any certificate, statement or opinion of an officer of the Company or of counsel 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 in the employ of the Company, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.



     Any certificate or opinion of any independent firm of public accountants filed with the
Trustee shall contain a statement that such firm is independent.



     SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date of
maturity of interest on or principal of the Securities of any Series or Coupons appertaining
thereto or the date fixed for redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest, premium, if any, or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.



     SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939.
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to be included herein by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.



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     SECTION 11.8 New York Law to Govern. This Indenture and each Security shall be
deemed to be a contract under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such State.



     SECTION 11.9 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.



     SECTION 11.10 Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.



     SECTION 11.11 Determination of Principal Amount. In determining whether the Holders
of the requisite principal amount of outstanding Securities of any Series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, whether a quorum is present
at a meeting of Holders of Securities or whether sufficient funds are available for redemption or
for any other purpose, the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.1 and the principal amount of any Securities denominated in
a Foreign Currency that shall be deemed to be outstanding for such purposes shall be determined by
converting the Foreign Currency into Dollars at the Market Exchange Rate as of the date of such
determination.



     SECTION 11.12 Waiver. The Holder of at least a majority of the total principal
amount of the outstanding the Securities may, on behalf of all Holders of the Securities: (a) waive
compliance by the Company of restrictive provisions in this Indenture; and (b) waive any past
default under this Indenture, except: (i) a default in the payment of the principal of, or any
premium or interest on, any Securities; or (ii) a default under any provision of this Indenture
which itself cannot be modified or amended with the consent of the holders of each outstanding
Security.



ARTICLE TWELVE




REDEMPTION OF SECURITIES




     SECTION 12.1 Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Securities of any Series to be redeemed as a whole or in part at the option of the
Company shall be given by giving notice of such redemption as provided in Section 11.4, at least 30
days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities
of such Series. Failure to give notice by mail, or any defect in the notice to the Holder of any
Security of a Series designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such Series.



     The notice of redemption to each such Holder shall identify the Securities to be redeemed
(including “CUSIP” or “ISIN” numbers), specify the date fixed for redemption, the redemption price,
the Place or Places of Payment, that payment will be made upon presentation and



58









 







surrender of such Securities, and that, unless otherwise specified in such notice, Coupon
Securities, if any, surrendered for payment must be accompanied by all Coupons maturing subsequent
to the redemption date, failing which the amount of any such missing Coupon or Coupons will be
deducted from the sum due for payment, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue, the conversion rate or
price, the date on which the right to convert the Securities to be redeemed will terminate and the
place or places where such Securities may be surrendered for conversion, if applicable, and that,
if less than all of the Outstanding Securities of a Series are to be redeemed, the identification
and principal amount of the Securities to be redeemed. If less than all of the Securities of any
Series and to be redeemed, the notice of redemption shall specify the numbers of the Securities of
such Series to be redeemed, and, if only Unregistered Securities of any Series are to be redeemed,
and if such Unregistered Securities may be exchanged for Registered Securities, the last date on
which exchanges of Unregistered Securities for Registered Securities not subject to redemption may
be made. In case any Security of a Series is to be redeemed in part, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Security and any Coupons appertaining
thereto, a new Security or Securities of such Series in principal amount equal to the unredeemed
portion thereof with appropriate Coupons will be issued.



     The notice of redemption of Securities of any Series to be redeemed at the option of the
Company 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. The Company shall give the Trustee at least 45 days prior written
notice of any redemption hereunder.



     Not later than 9:00 a.m., New York time, on the redemption date specified in the notice of
redemption given as provided in this Section, the Company will have on deposit with the Trustee or
with one or more paying agents (or, if the Company is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 3.4) an amount of money in the currency in which
the Securities of such Series and any Coupons appertaining thereto are payable (except as otherwise
specified pursuant to Section 2.3 and except as provided in Sections 2.12(b), (e) and (f) of this
Indenture) sufficient to redeem on the redemption date all the Securities of such Series so called
for redemption at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If any Security to be redeemed is converted into Common Stock or Preferred
Stock of the Company, any money deposited with the Trustee or with any paying agent or so
segregated and held in trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any predecessor Security to receive interest as provided in the last
paragraph of Section 2.7) be paid to the Company upon the written request of the Company or, if
then held by the Company, shall be discharged from such trust. If less than all the Outstanding
Securities of a Series are to be redeemed, the Company will deliver to the Trustee at least 60 days
prior to the date fixed for redemption an Officers’ Certificate stating the aggregate principal
amount of Securities to be redeemed.



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     If less than all the Securities of a Series are to be redeemed, the Trustee shall select, in
such manner as it shall deem appropriate and fair, Securities of such Series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such Series or any multiple thereof. The Trustee shall promptly
notify the Company in writing of the Securities of such Series selected for redemption and, in the
case of any Securities of such Series selected for partial redemption, the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any Series 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 which has been or is to be redeemed. If any Security to be redeemed in part is converted
in part before termination of the conversion right with respect to the portion of the Security so
selected, the converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption.  Securities (or portions thereof) which have been converted during
a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.  In any case where more than one Security is registered in the same
name, the Trustee in its discretion may treat the aggregate principal amount so registered as if it
were represented by one Security.



     SECTION 12.2 Payment of Securities Called for Redemption. If notice of redemption
has been given as above provided, the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as provided in Sections 6.5
and 10.4, such Securities shall cease from and after the date fixed for redemption to be entitled
to any benefit or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified portions thereof shall
be paid and redeemed by the Company at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that any semiannual payment of interest
on Registered Securities becoming due on the date fixed for redemption shall be payable to the
Holders of such Securities registered as such on the relevant record date subject to the terms and
provisions of Section 2.4 hereof.



     If any Coupon Security surrendered for redemption shall not be accompanied by all appurtenant
Coupons maturing on or after the date fixed for redemption, such Security may be paid after
deducting from the redemption price an amount equal to the face amount of all such missing Coupons
or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee, if
there be furnished to them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying
Agent any missing Coupon in respect of which a deduction shall have been made from the redemption
price, such Holder shall be entitled to receive the amount so deducted; provided, however, that,
unless otherwise provided pursuant to



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Section 2.3, interest represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an office or agency located outside of the United States.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest borne by the Security.



     Upon presentation of any Security redeemed in part only and the Coupons appertaining thereto,
the Company shall execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Company, a new Security or Securities and the Coupons
appertaining thereto, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.



     SECTION 12.3 Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in a written statement signed by an
authorized officer of the Company and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and beneficially by, and
not pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in
such written statement directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company.



     SECTION 12.4 Repayment at the Option of the Holders. Securities of any Series which
are repayable at the option of the Holders thereof before their stated maturity shall be repaid in
accordance with the terms of the Securities of such Series.



     The repayment of any principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their stated maturity, for purposes of Section 10.1, shall
not operate as a payment, redemption or satisfaction of the indebtedness represented by such
Securities unless and until the Company, at its option, shall deliver or surrender the same to the
Trustee with a directive that such Securities be cancelled.



ARTICLE THIRTEEN




HOLDERS’ MEETINGS




     SECTION 13.1. Purposes of Meetings. A meeting of Holders of Securities of any or all
Series may be called at any time and from time to time pursuant to the provisions of this Article
Thirteen for any of the following purposes:




     (a) to give any notice to the Company or to the Trustee for the Securities of such
Series, or to give any directions to the Trustee for such Series, or to consent to the
waiving of any default hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the provisions of Article Five;



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     (b) to remove the Trustee for such Series and nominate a successor Trustee pursuant to
the provisions of Article Six;




     (c) to consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 8.2; and




     (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 provision of this Indenture or under applicable law.



     SECTION 13.2. Call of Meetings by Trustee. The Trustee for the Securities of any
Series may at any time call a meeting of Holders of Securities of such Series to take any action
specified in Section 13.1, to be held at such time and at such place in Chicago, Illinois, or such
other Place of Payment as the Trustee for such Series shall determine. Notice of every meeting of
the Holders of Securities of any 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 given to Holders of
Securities of such Series in the manner and to the extent provided in Section 11.4. Such notice
shall be given not less than 20 nor more than 90 days prior to the date fixed for the meeting.



     SECTION 13.3. Call of Meetings by Company or Holders. In case at any time the
Company, pursuant to a resolution of its Board of Directors, or the Holders of at least 10% in
aggregate principal amount of the Outstanding Securities of any or all Series, as the case may be,
shall have requested the Trustee for such Series to call a meeting of Holders of Securities of any
or all Series, as the case may be, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee for such Series shall not have given the
notice of such meeting within 20 days after receipt of such request, then the Company or such
Holders may determine the time and the place in Chicago, Illinois, or such other Place of Payment
for such meeting and may call such meeting to take any action authorized in Section 13.1, by giving
notice thereof as provided in Section 13.2.



     SECTION 13.4. Qualifications for Voting. To be entitled to vote at any meeting of
Holders, a person shall be (a) a Holder of one or more Securities with respect to which such
meeting is being held or (b) a person appointed by an instrument in writing as proxy by such
Holder. The only persons who shall be entitled to be present or to speak at any meeting of Holders
shall be the persons entitled to vote at such meeting and their counsel and any representatives of
the Trustee for the Securities of the Series with respect to which such meeting is being held and
its counsel and any representatives of the Company and its counsel.



     SECTION 13.5. Regulations. Notwithstanding any other provisions of this Indenture,
the Trustee for the Securities of any Series may make such reasonable regulations as it may deem
advisable for any meeting of Holders of the Securities of such Series, in regard to proof of the
holding of Securities of such Series 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 think fit.



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     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 Holders of the Securities of such
Series as provided in Section 13.3, in which case the Company or the Holders calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the meeting.



     Subject to Section 7.4, at any meeting each Holder of Securities with respect to which such
meeting is being held or proxy therefore shall be entitled to one vote for each $1,000 (or the
equivalent in the currency in which such Securities are denominated, as determined pursuant to
Section 11.11) principal amount (in the case of the Original Issue Discount Securities, such
principal amount to be determined as provided in Section 11.11) of Securities held or represented
by him. However, no vote shall be cast or counted at any meeting in respect of any such 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 the Securities of such
Series held by him or instruments in writing aforesaid duly designating him as the person to vote
on behalf of other Holders of such Series. At any meeting of Holders, the presence of persons
holding or representing Securities with respect to which such meeting is being held in an aggregate
principal amount sufficient to take action on the business for the transaction of which such
meeting was called shall constitute a quorum, but, if less than a quorum is present, the persons
holding or representing a majority in aggregate principal amount of such Securities represented at
the meeting may adjourn such meeting with the same effect, for all intents and purposes, as though
a quorum had been present. Any meeting of Holders of Securities with respect to which a meeting
was duly called pursuant to the provisions of Section 13.2 or Section 13.3 may be adjourned from
time to time by a majority of such Holders present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.



     SECTION 13.6. Voting. The vote upon any resolution submitted to any meeting of
Holders of Securities with respect to which such meeting is being held shall be by written ballots
on which shall be subscribed the signatures of such Holders or of their representatives by proxy
and the serial number or numbers of the Securities 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 Holders shall be prepared by the secretary of the
meeting and there shall be attached to such 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 such notice was given in
the manner and to the extent provided in Section 11.4. The record shall show the serial numbers 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.



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



     SECTION 13.7. No Delay of Rights by Meeting. Nothing in this Article Thirteen shall
be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders 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 Holders under
any of the provisions of this Indenture or of the Securities of any Series.



[signature page follows]




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



	 	 	 	 	 
	 	USG CORPORATION

 	 
	 	By:  	/s/
Karen L. Leets	 
	 	 	Name:  	Karen L. Leets	 
	 	 	Title:  	Vice President and Treasurer	 
	 	 	 
	 	By:  	
/s/ Ellis A. Regenbogen	 
	 	 	Name:  	Ellis A. Regenbogen	 
	 	 	Title:  	Vice President, Corporate Secretary and
Assistant General Counsel	 
	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

     as Trustee

 	 
	 	By:  	/s/
Gregory S. Clarke	 
	 	 	Name:  	Gregory S. Clarke	 
	 	 	Title:  	Vice President	 
	 




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