exv4w16






Exhibit 4.16




THE GREENBRIER COMPANIES, INC.




as the Company



and



THE SUBSIDIARIES NAMED HEREIN



as Guarantors



to



[                                        ]



as Trustee



Subordinated Indenture



Dated as of                     , 20___



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Other Definitions
	 	 	7	 
	SECTION 1.03. Compliance Certificates and Opinions
	 	 	7	 
	SECTION 1.04. Form of Documents Delivered to Trustee
	 	 	7	 
	SECTION 1.05. Acts of Holders; Record Dates
	 	 	8	 
	SECTION 1.06. Notices to Trustee, the Company or a Guarantor
	 	 	9	 
	SECTION 1.07. Notice to Holders; Waiver
	 	 	10	 
	SECTION 1.08. Conflict with Trust Indenture Act
	 	 	10	 
	SECTION 1.09. Effect of Headings and Table of Contents
	 	 	10	 
	SECTION 1.10. Successors and Assigns
	 	 	10	 
	SECTION 1.11. Separability Clause
	 	 	10	 
	SECTION 1.12. Benefits of Indenture
	 	 	10	 
	SECTION 1.13. Governing Law
	 	 	10	 
	SECTION 1.14. Legal Holidays
	 	 	10	 
	SECTION 1.15. Waiver of Jury Trial
	 	 	11	 
	SECTION 1.16. Force Majeure
	 	 	11	 
	ARTICLE II SECURITY FORMS
	 	 	11	 
	SECTION 2.01. Form and Dating
	 	 	11	 
	ARTICLE III THE SECURITIES
	 	 	11	 
	SECTION 3.01. Title and Terms
	 	 	11	 
	SECTION 3.02. Denominations
	 	 	12	 
	SECTION 3.03. Execution and Authentication
	 	 	12	 
	SECTION 3.04. Temporary Securities
	 	 	12	 
	SECTION 3.05. Registration, Registration of Transfer and Exchange
	 	 	13	 
	SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	14	 
	SECTION 3.07. Payment of Interest; Rights Preserved
	 	 	14	 
	SECTION 3.08. Persons Deemed Owners
	 	 	15	 
	SECTION 3.09. Cancellation
	 	 	15	 
	SECTION 3.10. Computation of Interest
	 	 	15	 
	SECTION 3.11. CUSIP and CINS Numbers
	 	 	15	 





Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.




-ii-









 








TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 3.12. Deposits of Monies
	 	 	16	 
	SECTION 3.13. Issuance of Additional Securities
	 	 	16	 
	ARTICLE IV SATISFACTION AND DISCHARGE
	 	 	17	 
	SECTION 4.01. Satisfaction and Discharge of Indenture
	 	 	17	 
	SECTION 4.02. Application of Trust Money
	 	 	18	 
	ARTICLE V REMEDIES
	 	 	18	 
	SECTION 5.01. Events of Default
	 	 	18	 
	SECTION 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	19	 
	SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	19	 
	SECTION 5.04. Trustee May File Proofs of Claim
	 	 	20	 
	SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities
	 	 	21	 
	SECTION 5.06. Application of Money Collected
	 	 	21	 
	SECTION 5.07. Limitation on Suits
	 	 	21	 
	SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest
	 	 	22	 
	SECTION 5.09. Restoration of Rights and Remedies
	 	 	22	 
	SECTION 5.10. Rights and Remedies Cumulative
	 	 	22	 
	SECTION 5.11. Delay or Omission Not Waiver
	 	 	22	 
	SECTION 5.12. Control by Holders
	 	 	22	 
	SECTION 5.13. Waiver of Past Defaults
	 	 	23	 
	SECTION 5.14. Undertaking for Costs
	 	 	23	 
	SECTION 5.15. Waiver of Stay or Extension Laws
	 	 	23	 
	ARTICLE VI THE TRUSTEE
	 	 	23	 
	SECTION 6.01. Certain Duties and Responsibilities
	 	 	23	 
	SECTION 6.02. Notice of Defaults
	 	 	24	 
	SECTION 6.03. Certain Rights of Trustee
	 	 	24	 
	SECTION 6.04. Not Responsible for Recitals or Issuance of Securities
	 	 	26	 
	SECTION 6.05. May Hold Securities
	 	 	26	 
	SECTION 6.06. Money Held in Trust
	 	 	26	 
	SECTION 6.07. Compensation and Reimbursement
	 	 	26	 
	SECTION 6.08. Conflicting Interests
	 	 	26	 
	SECTION 6.09. Corporate Trustee Required; Eligibility
	 	 	27	 





Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.




-iii-









 








TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 6.10. Resignation and Removal; Appointment of Successor
	 	 	27	 
	SECTION 6.11. Acceptance of Appointment by Successor
	 	 	28	 
	SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	28	 
	SECTION 6.13. Preferential Collection of Claims Against the Company or a Guarantor
	 	 	29	 
	SECTION 6.14. Appointment of Authenticating Agent
	 	 	29	 
	ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	30	 
	SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders
	 	 	30	 
	SECTION 7.02. Preservation of Information; Communications to Holders
	 	 	30	 
	SECTION 7.03. Reports by Trustee
	 	 	30	 
	SECTION 7.04. Reports by Company
	 	 	30	 
	ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	31	 
	SECTION 8.01. Company May Consolidate, Etc. Only on Certain Terms
	 	 	31	 
	SECTION 8.02. Successor Substituted
	 	 	31	 
	ARTICLE IX AMENDMENTS; WAIVERS; SUPPLEMENTAL INDENTURES
	 	 	31	 
	SECTION
9.01. Amendments, Waivers and Supplemental Indentures Without Consent of Holders
	 	 	31	 
	SECTION 9.02. Modifications, Amendments and Supplemental Indentures with Consent of
Holders
	 	 	32	 
	SECTION 9.03. Execution of Supplemental Indentures
	 	 	33	 
	SECTION 9.04. Effect of Supplemental Indentures
	 	 	33	 
	SECTION 9.05. Conformity with Trust Indenture Act
	 	 	33	 
	SECTION 9.06. Reference in Securities to Supplemental Indentures
	 	 	33	 
	SECTION 9.07. Waiver of Certain Covenants
	 	 	33	 
	SECTION 9.08. No Liability for Certain Persons
	 	 	34	 
	ARTICLE X COVENANTS
	 	 	34	 
	SECTION 10.01. Payment of Principal, Premium and Interest
	 	 	34	 
	SECTION 10.02. Maintenance of Office or Agency
	 	 	34	 
	SECTION 10.03. Money for Security Payments to be Held in Trust
	 	 	34	 
	SECTION 10.04. Existence; Activities
	 	 	35	 
	SECTION 10.05. Statement by Officers as to Default; Compliance Certificates
	 	 	35	 
	ARTICLE XI REDEMPTION OF SECURITIES
	 	 	36	 
	SECTION 11.01. Right of Redemption
	 	 	36	 





Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.







-iv-









 








TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 11.02. Applicability of Article
	 	 	36	 
	SECTION 11.03. Election to Redeem; Notice to Trustee
	 	 	36	 
	SECTION 11.04. Selection by Trustee of Securities to Be Redeemed
	 	 	36	 
	SECTION 11.05. Notice of Redemption
	 	 	36	 
	SECTION 11.06. Deposit of Redemption Price
	 	 	37	 
	SECTION 11.07. Securities Payable on Redemption Date
	 	 	37	 
	SECTION 11.08. Securities Redeemed in Part
	 	 	37	 
	ARTICLE XII DEFEASANCE AND COVENANT DEFEASANCE
	 	 	38	 
	SECTION 12.01. Company’s Option to Effect Defeasance or Covenant Defeasance
	 	 	38	 
	SECTION 12.02. Defeasance and Discharge
	 	 	38	 
	SECTION 12.03. Covenant Defeasance
	 	 	38	 
	SECTION 12.04. Conditions to Defeasance or Covenant Defeasance
	 	 	39	 
	SECTION 12.05. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions
	 	 	40	 
	SECTION 12.06. Reinstatement
	 	 	40	 
	ARTICLE XIII GUARANTEE
	 	 	41	 
	SECTION 13.01. Guarantee
	 	 	41	 
	SECTION 13.02. Limitation on Liability
	 	 	43	 
	SECTION 13.03. Execution and Delivery of Guarantees
	 	 	43	 
	SECTION 13.04. Guarantors May Consolidate, Etc., on Certain Terms
	 	 	43	 
	SECTION 13.05. Release of Guarantors
	 	 	43	 
	SECTION 13.06. Successors and Assigns
	 	 	43	 
	SECTION 13.07. No Waiver, etc
	 	 	44	 
	SECTION 13.08. Modification, etc
	 	 	44	 
	SECTION 13.09. Subordination of Guarantee
	 	 	44	 
	ARTICLE XIV SUBORDINATION
	 	 	44	 
	SECTION 14.01. Subordination Terms
	 	 	44	 






	 	 	 
	Schedule A
	 	The Guarantors
	Appendix
	 	Provisions Relating to Securities
	Exhibit A
	 	Form of Security
	Exhibit B
	 	Form of Guarantee





Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.





-v-









 








Cross Reference Table (1)




			
	Trust Indenture Act Selection	 	Indenture Section
	310(a)(1)
	 	6.09
	310(a)(2)
	 	6.09
	310(a)(3)
	 	N.A. (2)
	310(a)(4)
	 	N.A.
	310(a)(5)
	 	N.A.
	310(b)
	 	6.08; 6.10
	310(c)
	 	N.A.
	311(a)
	 	6.13
	311(b)
	 	6.13
	311(c)
	 	N.A.
	312(a)
	 	7.01; 7.02
	312(b)
	 	7.02
	312(c)
	 	7.02
	313(a)
	 	7.03
	313(b)
	 	7.03
	313(c)
	 	1.07; 7.03
	313(d)
	 	7.03
	314(a)
	 	7.04
	314(a)(4)
	 	1.03; 10.05
	314(b)
	 	N.A.
	314(c)(1)
	 	1.03
	314(c)(2)
	 	1.03
	314(c)(3)
	 	N.A.
	314(d)
	 	N.A.
	314(e)
	 	1.03
	314(f)
	 	N.A.
	315(a)
	 	6.01
	315(b)
	 	6.02
	315(c)
	 	6.01
	315(d)
	 	6.01
	315(e)
	 	5.14
	316(a)(1)(A)
	 	5.12
	316(a)(1)(B)
	 	5.13
	316(a)(2)
	 	N.A.
	316(a)(last sentence)
	 	1.01(3)
	316(b)
	 	5.07; 5.08
	316(c)
	 	1.05
	317(a)(1)
	 	5.03
	317(a)(2)
	 	5.03; 5.04
	317(b)
	 	10.03
	318(a)
	 	1.08








 




			
	(1)	 	Note: This Cross Reference Table shall not, for any purpose, be deemed part of this Indenture.
	 
	(2)	 	Not Applicable.
	 
	(3)	 	Definition of “Outstanding.”






 











 





     SUBORDINATED INDENTURE, dated as of [               ], 20[     ], among THE GREENBRIER
COMPANIES, INC., a corporation duly organized and existing under the laws of the State of Oregon
(herein called the “Company”), having its principal office at One Centerpointe Drive, Suite 200,
Lake Oswego, Oregon, 97035, the Subsidiaries of the Company named in Schedule A (herein called the
“Guarantors”) and [               ], having its principal corporate trust office at [               ], as trustee (herein called the “Trustee”).



RECITALS OF THE COMPANY




          The Company has duly authorized the creation of an issue of [     ]% Subordinated Notes due [     ]
of substantially the tenor and amount hereinafter set forth, and to provide therefore, the
Company has duly authorized the execution and delivery of this Indenture.




          Each Guarantor desires to make the Guarantee provided herein and has duly authorized the
execution and delivery of this Indenture.




          All things necessary to make the Securities, when executed by the Company, authenticated and
delivered hereunder and duly issued by the Company, and each Guarantee, when executed and delivered
hereunder by each Guarantor, the valid and legally binding obligations of the Company and each
Guarantor, and to make this Indenture a valid and legally binding agreement of the Company and each
Guarantor, in accordance with their and its terms, have been done.




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




          For and in consideration of the premises and the purchase of the Securities by the Holders (as
defined herein) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities, as follows:




ARTICLE I




Definitions and Other Provisions of General Application



     SECTION 1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:



          (1) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;




          (2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;




          (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP (whether or not such is indicated herein);




          (4) unless the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or Section, as the case may be, of this Indenture;




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







1









 








          (6) each reference herein to a rule or form of the Commission shall mean such rule or
form and any rule or form successor thereto, in each case as amended from time to time;




          (7) “or” is not exclusive;




          (8) “including” means including without limitation;




          (9) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness;




          (10) the principal amount of any non-interest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP; and




          (11) all references to the date the Securities were originally issued shall refer to
the Issue Date, except as otherwise specified.




     Whenever this Indenture requires that a particular ratio or amount be calculated with respect
to a specified period after giving effect to certain transactions or events on a pro forma basis,
such calculation shall be made as if the transactions or events occurred on the first day of such
period, unless otherwise specified.



     “Act,” when used with respect to any Holder, has the meaning specified in Section 1.05.



     “Additional Securities” means, any additional amount of the Securities issued from time to
time after the Issue Date under the terms of this Indenture (other than pursuant to Section 3.04,
3.05, 3.06 or 11.08 of this Indenture).



     “Affiliate” means, with respect to any specified Person, (i) any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified Person, (ii) any other Person that owns, directly or indirectly, 10% or more of such
specified Person’s Capital Stock or (iii) any officer or director of (A) any such specified Person,
(B) any Subsidiary of such specified Person or (C) any Person described in clauses (i) or (ii)
above.



     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14
hereof to act on behalf of the Trustee to authenticate Securities.



     “Board of Directors” means the board of directors of a company or its equivalent, including
managers of a limited liability company, general partners of a partnership or trustees of a
business trust, or any duly authorized committee thereof.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of a company to have been duly adopted by the Board of Directors of such company and to
be in full force and effect on the date of such certification, and delivered to the Trustee.



     “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in the Borough of Manhattan, The City of New York, are authorized or
obligated by law or executive order to close.



     “Capital Stock” means, with respect to any Person, any and all shares, interests,
participations, rights in or other equivalents (however designated) of such Person’s capital stock
or equity participations,



2









 




and any rights (other than debt securities convertible into capital stock), warrants or
options exchangeable for or convertible into such capital stock and, including, without limitation,
with respect to partnerships, limited liability companies or business trusts, ownership interests
(whether general or limited) and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of assets of, such
partnerships, limited liability companies or business trusts.




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



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



     “Company Order” or “Company Request” means a written order or request signed in the name of
the Company by its Chairman of the Board of Directors, its Chief Executive Officer, its Chief
Financial Officer, its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee or Paying Agent, as
applicable.



     “control” when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
principal corporate trust business shall be administered, which address as of the date of this
Indenture is located at [                    ], Attention: Corporate Trust Administration
or such other address as the Trustee may designate from time to time by notice to the Holders and
the Company, or the principal corporate trust office of any successor Trustee (or such other
address as a successor Trustee may designate from time to time by notice to the Holders and the
Company).



     “corporation” means (except in the definition of “Subsidiary”) a corporation, association,
company, joint stock company or business trust.



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



     “Depositary” means The Depository Trust Company, a New York corporation, or its successor.



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



     “Federal Bankruptcy Code” means Title 11, U.S. Code.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States of America, as in effect on the date of any calculation
or determination required hereunder; provided that the Company, on any date, may elect to establish
that GAAP shall mean



3









 




GAAP as in effect on such date; provided further that any such election, once made, shall be
irrevocable. The Company shall give notice of any such election to the Trustee and the Holders of
Securities.




     “Global Security” has the meaning specified in the Appendix.



     “guarantee” means, as applied to any obligation, (i) a guarantee (other than by
endorsement of negotiable instruments for collection in the ordinary course of business), direct or
indirect, in any manner, of any part or all of such obligation and (ii) an agreement, direct or
indirect, contingent or otherwise, the practical effect of which is to assure in any way the
payment or performance (or payment of damages in the event of nonperformance) of all or any part of
such obligation, including, without limiting the foregoing, the payment of amounts available to be
drawn down under letters of credit of another Person. The term “guarantee” used as a verb has a
corresponding meaning. The term “guarantor” shall mean any Person providing a guarantee of any
obligation.



     “Guarantee” means each guarantee of the Securities contained in Article XIII given by each
Guarantor.



     “Guarantors” means the Persons named as “Guarantors” in the first paragraph of this
instrument.



     “Holder” means a Person in whose name a Security is registered in the Security Register.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively.



     “Interest Payment Date” means the Stated Maturity of an installment of interest on the
Securities.



     “Issue Date” means [                         ], 20[      ].



     “Notice of Default” means a written notice of the kind specified in Section 5.02.



     “Officer’s Certificate” means a certificate signed by the Chairman of the Board of Directors,
the Chief Executive Officer, the President or a Vice President, the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officer’s Certificate given pursuant to
Section 10.05 shall be the principal executive, financial or accounting officer of the Company.



     “Opinion of Counsel” means a written opinion of counsel reasonably acceptable to the Trustee,
who may be counsel for the Company.



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



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




          (ii) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying




4









 









Agent) for the Holders of such Securities; provided, however, that, if such securities
are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture
or provision therefor satisfactory to the Trustee has been made; provided further that the
Paying Agent is not prohibited from paying such money to the Holders on that date pursuant
to Article XIV;



          (iii) Securities which have been paid pursuant to Section 3.06 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company; and




          (iv) Securities as to which Defeasance has been effected pursuant to Section 12.02;



provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding (it being understood that Securities to be
acquired by the Company pursuant to an offer to purchase shall not be deemed to be owned by the
Company until legal title to such Securities passes to the Company), except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of
the Trustee actually knows to be 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 Affiliate of the
Company or of such other obligor.




     “Paying Agent” means any Person authorized by the Company to pay the principal of (and
premium, if any) or interest on any Securities on behalf of the Company. The Company has initially
appointed the Trustee as its Paying Agent pursuant to Section 10.02 hereof.



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



     “principal” of a Security means the principal of the Security plus the premium, if any,
payable on that Security which is due or overdue or is to become due at the relevant time.



     “Record Expiration Date” has the meaning specified in Section 1.05.



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



     “Redemption Price,” when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.



     “Regular Record Date” for the interest payable on any Interest Payment Date means the [                         ]
or [     ] (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.



5









 





     “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Office, including, any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.



     “Securities” means the securities issued on the Issue Date and any Additional Securities.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.



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



     “Subsidiary” means, with respect to any Person, (i) a corporation a majority of whose Voting
Stock is at the time, directly or indirectly, owned by such Person, by one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof and (ii) any other Person (other
than a corporation), including, without limitation, a partnership, limited liability company,
business trust or joint venture, in which such Person, one or more Subsidiaries thereof or such
Person and one or more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the election of directors,
managers or trustees thereof (or other Person performing similar functions). For purposes of this
definition, any directors’ qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a Subsidiary. For purposes of
this Agreement, this definition does not include any special purpose entity or joint venture.



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.



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



     “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
“vice president.”



     “Voting Stock” means any class or classes of Capital Stock pursuant to which the holders
thereof have the general voting power under ordinary circumstances to elect at least a majority of
the board of directors, managers or trustees of any Person (irrespective of whether or not, at the
time, stock of any other class or classes shall have, or might have, voting power by reason of the
happening of any contingency).



6









 





     SECTION 1.02. Other Definitions.



	 	 	 
	Term	 	Defined in Section
	“Covenant Defeasance”

	 	Section 12.03
	“Defaulted Interest”

	 	Section 3.07
	“Defeasance”

	 	Section 12.02
	“Definitive Security”

	 	Appendix
	“Depositary”

	 	Appendix
	“Event of Default”

	 	Section 5.01
	“Global Security”

	 	Appendix
	“Guarantee Obligations”

	 	Section 13.01
	“Securities Custodian”

	 	Appendix
	“Security Register” or “Security Registrar”

	 	Section 3.05
	U.S. Government Obligation

	 	Section 12.03






     SECTION 1.03. Compliance Certificates and Opinions. Upon any application or request by the
Company or a Guarantor to the Trustee to take any action under any provision of this Indenture, the
Company or the Guarantor shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officer’s Certificate, if to be given by an officer of the Company or a Guarantor, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirement set forth in this Indenture.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:



          (i) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;




          (ii) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




          (iii) a statement that, in the opinion of each such individual, 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




          (iv) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.




     SECTION 1.04. Form of Documents Delivered to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.



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



7









 




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




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



     SECTION 1.05. Acts of Holders; Record Dates. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an 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 and, where it is hereby expressly required,
to the Company or a Guarantor, as applicable. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.



     The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.



     The ownership of Securities shall be proved exclusively by the Security Register for all
purposes.



     Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or
a Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.



     The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of Securities, provided, however, that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next paragraph. If any record date is
set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or not such Holders remain
Holders after such record date; provided, however, that no such action shall be effective hereunder
unless taken on or prior to the applicable Record Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall
prevent the Company from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date



8









 




previously set shall automatically and with no action by any Person be cancelled and of no
effect), nor shall anything in this paragraph be construed to render ineffective any action taken
pursuant to or in accordance with any other provision of this Indenture by Holders of the requisite
principal amount of Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Record Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner set forth in Section
1.07.




     The Trustee may but need not set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to
institute proceedings referred to in Section 5.07(ii) or (iv) any direction referred to in Section
5.12. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities
on such record date, and no other Holders, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such record date; provided,
however, that no such action shall be effective hereunder unless taken on or prior to the
applicable Record Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action (whereupon the record date previously set
shall automatically and without any action by any Person be cancelled and of no effect), nor shall
anything in this paragraph be construed to render ineffective any action taken pursuant to or in
accordance with any other provision of this Indenture by Holders of the requisite principal amount
of Outstanding Securities on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such
record date, the matter(s) to be submitted for potential action by Holders and the applicable
Record Expiration Date to be given to the Company in writing and to each Holder of Securities in
the manner set forth in Section 1.07.



     With respect to any record date set pursuant to this Section, the party hereto that sets such
record date may designate any day as the “Record Expiration Date” and from time to time may change
the Record Expiration Date to any earlier or later day, provided, however, that no such change
shall be effective unless notice of the proposed new Record Expiration Date is given to the other
party hereto in writing, and to each Holder of Securities in the manner set forth in Section 1.07,
on or before the existing Record Expiration Date. If a Record Expiration Date is not designated
with respect to any record date set pursuant to this Section, the party hereto that set such record
date shall be deemed to have initially designated the 180th day after such record date as the
Record Expiration Date with respect thereto, subject to its right to change the Record Expiration
Date as provided in this paragraph. Notwithstanding the foregoing, no Record Expiration Date shall
be later than the 180th day after the applicable record date.



     Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.



     SECTION 1.06. Notices to Trustee, the Company or a Guarantor. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed with,



          (i) the Trustee by any Holder or by the Company or a Guarantor shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing and mailed,
first-class postage prepaid, to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration,







9









 








          (ii) the Company or a Guarantor by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company or such Guarantor addressed to it at the
address of the Company’s principal office specified in the first paragraph of this
instrument, or at any other address previously furnished in writing to the Trustee by the
Company.




     SECTION 1.07. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at
his address as it appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail or receive such notice, nor
any defect in any such notice, to any particular Holder shall affect the sufficiency or validity of
such notice. 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 case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



     SECTION 1.08. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be part of and govern this Indenture, such provision of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, such provision shall be deemed to be so modified
or excluded, as the case may be.



     SECTION 1.09. Effect of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction
hereof.



     SECTION 1.10. Successors and Assigns. Without limiting Articles VIII and XIII hereof, all
covenants and agreements in this Indenture by each of the Company or the Guarantors shall bind
their respective successors and assigns, whether so expressed or not.



     SECTION 1.11. Separability Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.



     SECTION 1.13. Governing Law. This Indenture, the Securities and the Guarantees shall be
governed by and construed in accordance with the laws of the State of New York.



     SECTION 1.14. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or principal (and premium, if
any) need not be made on such date, but may be made on the next succeeding Business Day with the
same



10









 




force and effect (including with respect to the accrual of interest) as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity.




     SECTION 1.15. Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE
SECURITIES.



     SECTION 1.16. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



ARTICLE II




Security Forms



     SECTION 2.01. Form and Dating. Provisions relating to the Securities are set forth in the
Appendix, which is hereby incorporated in and expressly made a part of this Indenture. The
Securities and the Trustee’s certificate of authentication shall be substantially in the form of
Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company or any Guarantor is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company). Each Security shall
be dated the date of its authentication.



ARTICLE III




The Securities



     SECTION 3.01. Title and Terms. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. Additional Securities may be
issued, authenticated and delivered pursuant to Section 3.13, and Securities may be authenticated
and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Sections 3.04, 3.05, 3.06 or 9.06 or 11.08.



     The principal of (and premium, if any) and interest on the Securities shall be payable at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of New York, or such
other office maintained by the Trustee for such purpose and at any other office or agency
maintained by the Company for such purpose; provided, however, that, at the option of the Company,
payment of interest may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register, or wire transfer or other electronic means.



     The Securities shall be subordinated in right of payment as provided in Article XIV.



     The Securities shall be redeemable as provided in Article XI and the Securities.



11









 





     The Securities shall be subject to Defeasance and/or Covenant Defeasance as provided in
Article XII.



     SECTION 3.02. Denominations. The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 principal amount and any integral multiple thereof.



     SECTION 3.03. Execution and Authentication. The terms and provisions contained in the
Securities annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.



     The Securities shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its Chief Executive Officer, its President or one of its Vice Presidents, its Chief
Operating Officer, or its Chief Financial Officer. The signature of any of these officers on the
Securities may be manual or facsimile.



     Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, which shall specify
the amount of the Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated and, in the case of an issuance of Additional Securities pursuant
to Section 3.13 after the Issue Date, shall certify that such issuance is in compliance with this
Indenture; and the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities as provided in this Indenture and not otherwise.



     Each Security shall be dated the date of its authentication.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.



     Authentication by counterpart shall satisfy the requirements of this Section 3.03 and the
requirements of the Securities.



     SECTION 3.04. Temporary Securities. Pending the preparation of Definitive Securities, the
Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their execution of such
Securities.



     If temporary Securities are issued, the Company will cause Definitive Securities to be
prepared without unreasonable delay. After the preparation of Definitive Securities, the temporary
Securities shall be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or



12









 




agency of the Company designated pursuant to Section 10.02, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of
Definitive Securities of authorized denominations and of a like tenor. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits under this Indenture as
Definitive Securities.




     SECTION 3.05. Registration, Registration of Transfer and Exchange. The Company shall cause to
be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to Section 10.02 being herein
sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable
regulations as the Company may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities. The Trustee is hereby appointed (a) the initial
“Security Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided and (b) the Securities Custodian with respect to the Global Securities.



     The Securities shall be issued in registered form and shall be transferable only upon the
surrender of a Security for registration of transfer and in compliance with the Appendix. When a
Security is presented to the Security Registrar with a request to register a transfer, the Security
Registrar shall register the transfer as requested if its requirements therefor are met. When
Securities are presented to the Security Registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Security Registrar shall make the
exchange as requested if the same requirements are met. To permit registration of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate Securities at the Security
Registrar’s request.



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



     No service charge shall be made for any registration of transfer or exchange of Securities
except as provided in Section 3.06, 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 registration
of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, Section 3.12,
Section 9.06 or Section 11.08, and in any such case not involving any transfer.



     Neither the Company nor the Security Registrar shall 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 the mailing of a notice of redemption of Securities selected for redemption under
Section 11.05 and ending at the close of business on the day of such mailing, (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (iii) to register the transfer of any
Securities other than Securities having a principal amount of $1,000 or integral multiples thereof.



     Prior to the due presentation for registration of transfer of any Security, the Company, the
Guarantors, the Trustee, the Paying Agent, and the Security Registrar may deem and treat the Person
in whose name a Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company, any Guarantor, the
Trustee, the Paying Agent, or the Security Registrar shall be affected by notice to the contrary.



13









 





     Any Holder of a Global Security shall, by acceptance of such Global Security, agree that
transfers of beneficial interest in such Global Security may be effected only through a book-entry
system maintained by (a) the Holder of such Global Security (or its agent) or (b) any Holder of a
beneficial interest in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.



     SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.



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



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



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



     Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.



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



     SECTION 3.07. Payment of Interest; Rights Preserved. Interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment Date 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 the Regular Record Date for such interest payment.



     Any interest on any Security which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
paragraph (1) or (2) below:



          (1) the Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the 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


14









 







amount of Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 15 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date therefor to
be given to each Holder in the manner specified in Section 1.07, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).




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




     Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered
under this Indenture upon registration of 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.



     SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the
Person in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section 3.07) interest on
such Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.



     SECTION 3.09. Cancellation. All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in its
customary manner.



     SECTION 3.10. Computation of Interest. Interest on the Securities shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.



     SECTION 3.11. CUSIP and CINS Numbers. The Company in issuing the Securities may use “CUSIP”
and “CINS” numbers (if then generally in use), and, if so, the Trustee shall use the CUSIP or




15











 




CINS numbers in notices of redemption or repurchase as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of a redemption or
repurchase and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption or repurchase shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP
or CINS numbers.




     SECTION 3.12. Deposits of Monies. Except to the extent payment of interest is made by the
Company’s check pursuant to Section 3.01, prior to 11:00 a.m., New York City time, on each Interest
Payment Date, Redemption Date and Stated Maturity, the Company shall deposit with the Paying Agent
in immediately available funds money sufficient to make cash payments, if any, due on such Interest
Payment Date, Redemption Date or Stated Maturity in a timely manner which permits the Paying Agent
to remit payment to the Holders on such Interest Payment Date, Redemption Date or Stated Maturity.



     SECTION 3.13. Issuance of Additional Securities. The Company shall be entitled, subject to
its compliance with this Indenture, to issue Additional Securities under this Indenture which shall
have identical terms as the Securities issued on the Issue Date, other than with respect to the
date of issuance and issue price provided, however, that no Additional Securities shall be issued
that are not fungible for U.S. Federal income tax purposes, with any other securities issued under
this Indenture. The Securities issued on the Issue Date and any Additional Securities shall be
treated as a single class for all purposes under this Indenture.



     With respect to any Additional Securities, the Company shall set forth in a resolution of its
Board of Directors and an Officer’s Certificate, a copy of each which shall be delivered to the
Trustee, the following information:



          (1) whether such Additional Securities shall be issued as part of a new or existing
series of Securities and the title of such Additional Securities (which shall distinguish
the Additional Securities of the series from Securities of any other series);




          (2) the aggregate principal amount of such Additional Securities which may be
authenticated and delivered under this Indenture, which may be in an unlimited aggregate
principal amount;




          (3) the issue price and issuance date of such Additional Securities, including the date
from which interest on such Additional Securities shall accrue; and




          (4) if applicable, that such Additional Securities shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the respective
depositaries for such Global Securities, the form of any legend or legends which shall be
borne by such Global Securities in addition to or in lieu of those set forth in Exhibit A
hereto and any circumstances in addition to or in lieu of those set forth in Section 2.4 of
the Appendix in which any such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the depositary for such
Global Security or a nominee thereof.







16









 








ARTICLE IV




Satisfaction and Discharge



     SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture shall cease to be of
further effect (except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when




     (1) either




     (A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or
repaid as provided in Section 3.06 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or




     (B) all Securities not theretofore delivered to the Trustee for cancellation
(other than Securities which have been destroyed, lost or stolen and which have been
replaced or repaid as provided in Section 3.06),




     (i) have become due and payable, or




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




     (iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,


and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire Indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest on the Securities to the date of
such deposit (in the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be, together with irrevocable instructions from the
Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption,
as the case may be;





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




     (3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture pursuant to this Article IV,
the obligations of the Company to the Trustee under Section 6.07, the obligations of the Company to
any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive such satisfaction and
discharge.



17









 





     SECTION 4.02. Application of Trust Money. Subject to the provisions of the last paragraph of
Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited with the Trustee.
Money so held in trust is not subject to Article XIV.



ARTICLE V




Remedies



     SECTION 5.01. Events of Default. “Event of Default,” wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):




     (1) default in the payment of the principal of or premium, if any, when due and
payable, on any of the Securities (at Stated Maturity, upon optional redemption or
otherwise), whether or not prohibited by Article XIV; or




     (2) default in the payment of an installment of interest on any of the Securities, when
due and payable, for 30 days, whether or not prohibited by Article XIV; or




     (3) the entry of a decree or order by a court having jurisdiction in the premises (A)
for relief in respect of the Company in an involuntary case or proceeding under the Federal
Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency,
reorganization or similar law or (B) adjudging the Company bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under
the Federal Bankruptcy Code or any other similar federal, state or foreign law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of any of its properties, or
ordering the winding up or liquidation of any of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60 consecutive days; or




     (4) the institution by the Company of a voluntary case or proceeding under the Federal
Bankruptcy Code or any other similar federal, state or foreign law or any other case or
proceedings to be adjudicated a bankrupt or insolvent, or the consent by the Company to the
entry of a decree or order for relief in respect of the Company in any involuntary case or
proceeding under the Federal Bankruptcy Code or any other similar federal, state or foreign
law or to the institution of bankruptcy or insolvency proceedings against the Company, or
the filing by the Company of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other similar federal, state or foreign law,
or the consent by it to the filing of any such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or other
similar official) of any of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due or the taking of
corporate action by the Company in furtherance of any such action; or



18









 






     (5) any of the Guarantees ceases to be in full force and effect or any of the
Guarantees is declared to be null and void and unenforceable or any of the Guarantees is
found to be invalid or any of the Guarantors denies its liability under its Guarantee (other
than by reason of release of Guarantor in accordance with the terms of this Indenture).



     SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default
(other than those covered by clause (3) or (4) of Section 5.01 with respect to the Company) shall
occur and be continuing, the Trustee, by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then Outstanding, by notice to the Trustee and the
Company, may declare the principal of, premium, if any, and accrued and unpaid interest, if any, on
all of the Outstanding Securities due and payable immediately, upon which declaration, all amounts
payable in respect of the Securities shall be due and payable as of the date which is five Business
Days after the giving of such notice. If an Event of Default specified in clause (3) or (4) of
Section 5.01 with respect to the Company occurs and is continuing, then the principal of, premium,
if any, and accrued and unpaid interest, if any, on all the Outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder of Securities.



     After a declaration of acceleration under this Indenture, but before a judgment or decree for
payment of the money due has been obtained by the Trustee, the Holders of a majority in aggregate
principal amount of the Outstanding Securities, by written notice to the Company and the Trustee,
may rescind such declaration if




     (1) the Company or any Guarantor has paid or deposited with the Trustee a sum
sufficient to pay:




     (A) all sums paid or advanced by the Trustee under this Indenture and the
reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel;




     (B) all overdue interest on all Securities;




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




     (D) to the extent that payment of such interest is lawful, interest upon
overdue interest and overdue principal at the rate set forth in the Securities which
has become due otherwise than by such declaration of acceleration;




     (2) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and




     (3) all Events of Default, other than the non-payment of principal of, premium, if any,
and interest on the Securities that have become due solely by such declaration of
acceleration, have been cured or waived.



     No such rescission shall affect any subsequent default or impair any right consequent thereto.



     SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
and each Guarantor covenants that if:



19









 






     (i) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or




     (ii) default is made in the payment of the principal of (or premium, if any, on) any
Security on the due date for payment thereof,


the Company or such Guarantor will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such Securities for principal
(and premium, if any) and interest, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.




     In addition to the rights and powers set forth in Section 317(a) of the Trust Indenture Act,
the Trustee shall be entitled to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Holders of the Securities allowed
in any judicial proceeding relative to the Company, any Guarantor or any other obligor upon the
Securities, its creditors, or its property, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the same after the deduction of its
charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the Holders to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for compensation and expenses, including counsel fees incurred by it
up to the date of such distribution.



     If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem necessary to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper remedy.



     SECTION 5.04. Trustee May File Proofs of Claim. In case of any judicial proceeding relative
to the Company, a Guarantor (or any other obligor upon the Securities), any of their property or
any of their creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in
order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular,
the Trustee shall be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.



     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.



20









 





     SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities. All rights of
action and claims under this Indenture or the Securities may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, distributions and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.



     SECTION 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:




     FIRST: To the payment of all amounts due the Trustee under Section 6.07;




     SECOND: To the payment of all indebtedness of the Company to which such Series of
Securities is subordinated to the extent required by Section 6.07 and Article XV;




     THIRD: To the payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively;




     FOURTH: To the payment of any and all other amounts due under this Indenture, the
Securities or the Guarantees; and




     FIFTH: To the Company (or such other Person as a court of competent jurisdiction may
direct).



     SECTION 5.07. Limitation on Suits. Subject to Section 5.08, no Holder of any Security shall
have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless




     (i) such Holder has previously given written notice to the Trustee of a continuing
Event of Default;




     (ii) the Holders of not less than 25% in principal amount of the Outstanding Securities
shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;




     (iii) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in
compliance with such request;




     (iv) the Trustee for 45 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (v) no direction inconsistent with such written request has been given to the Trustee
during such 45-day period by the Holders of a majority in principal amount of the
Outstanding



21









 






Securities; it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Holders.



     SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of a redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.



     SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such proceeding, the
Company, each Guarantor, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted, subject to the
determination in such proceeding.



     SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders 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.



     SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.



     SECTION 5.12. Control by Holders. The Holders of a majority in principal amount of the
Outstanding Securities 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, provided that:




     (i) such direction shall not be in conflict with any rule of law or with this
Indenture, and




     (ii) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



22









 





     SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a majority in principal
amount of the Outstanding Securities may on behalf of the Holders of all the Securities waive any
past default hereunder and its consequences, except a default




     (i) in the payment of the principal of (or premium, if any) or interest on any
Security, or




     (ii) in respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each Outstanding Security affected.



     Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.



     SECTION 5.14. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay
the costs of such suit (including reasonable counsel fees and expenses), and may assess costs
against any such party litigant, in the manner and to the extent provided in the Trust Indenture
Act; provided, that neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any suit instituted by
the Company or a Guarantor, in any suit instituted by the Trustee, in any suit instituted by any
Holder or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or in any suit instituted by any Holder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security on or after the Stated
Maturity expressed in such Security (or, in the case of a redemption, on or after the Redemption
Date).



     SECTION 5.15. Waiver of Stay or Extension Laws. The Company and each Guarantor covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company and each Guarantor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law had been enacted.



ARTICLE VI




The Trustee



     SECTION 6.01. Certain Duties and Responsibilities. (a) Except during the continuance of an
Event of Default,




     (i) the Trustee undertakes to perform such duties and only such duties 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 its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions
which by the



23









 






provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated therein).




     (b) In case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent Person would exercise or use under
the circumstances in the conduct of such Person’s own affairs.




     (c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent misconduct, except that no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers under this Indenture, unless the Trustee has received security and
indemnity satisfactory to it against any loss, liability or expense. The Trustee shall not
be liable for any error of judgment unless it is proved that the Trustee was negligent in
the performance of its duties hereunder.




     (d) Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 6.01.



     SECTION 6.02. Notice of Defaults. If a Default or an Event of Default occurs and is known to
the Trustee, the Trustee shall transmit by mail to all Holders, as their names and addresses appear
in the Security Register, notice of such Default or Event of Default hereunder known to the Trustee
within 90 days after obtaining such knowledge, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.



     SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of Section 6.01:




     (a) the Trustee may conclusively rely as to the truth of the statements and correctness
of the opinions expressed therein and shall be fully protected in acting or refraining from
acting upon any resolution, Officer’s Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness 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 or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of Directors
of the Company may be sufficiently evidenced by a Board Resolution of the Company;




     (c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer’s Certificate;



24









 






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




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




     (f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled (subject to
reasonable confidentiality arrangements as may be proposed by the Company or any Guarantor)
to make reasonable examination (upon prior notice and during regular business hours) of the
books, records and premises of the Company or a Guarantor, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;




     (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 or custodians or nominees and
the Trustee shall not be responsible for the supervision of, or any misconduct or negligence
on the part of, any agent or attorney appointed with due care by it hereunder;




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




     (i) in the event that the Trustee is also acting as Authenticating Agent, Paying Agent,
Security Registrar or Securities Custodian hereunder, the rights and protections afforded to
the Trustee pursuant to this Article VI, including its right to be indemnified, shall also
be afforded to such Authenticating Agent, Paying Agent, Security Registrar and Securities
Custodian;




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




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




     (l) the Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.



25









 





     SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. The recitals contained
herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken
as the statements of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.



     SECTION 6.05. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar, any Securities Custodian or any other agent of the Company or any
Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company or a Guarantor with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar, Securities Custodian or such other agent.



     SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise agreed in writing
with the Company.



     SECTION 6.07. Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee
from time to time such compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust); (2) except as
otherwise expressly provided herein, to promptly reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement or advance as may
have been caused by its negligence or bad faith; and (3) to indemnify the Trustee, its directors,
officers, agents and employees for, and to hold them harmless against, any and all loss, damage,
claim, liability or expense incurred without negligence or bad faith on its part, including taxes
(other than taxes based upon, measured by or determined by the revenue or income of the Trustee),
arising out of or in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim (whether asserted by the Company, a Holder
or any other Person) or liability in connection with the exercise or performance of any of its
powers or duties hereunder.



     The Trustee shall have a lien prior to the Securities as to all property and funds held by it
hereunder for any amount owing to it pursuant to this Section 6.07, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.01(3) or Section 5.01(4), 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.



     Notwithstanding any provisions of this Indenture, the provisions of this Section shall survive
the resignation or removal of the Trustee and any satisfaction and discharge of this Indenture.



     SECTION 6.08. Conflicting Interests. If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.



26









 





     SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as
such and has, or is a wholly owned subsidiary of a bank holding company that has, a combined
capital and surplus of at least $50,000,000 and a Corporate Trust Office in the Borough of
Manhattan, The City of New York. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of a Federal or State supervising or examining authority,
then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.



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




     (b) The Trustee may resign at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee in accordance with the applicable
requirements of Section 6.11 shall not have been delivered to the Company and the resigning
Trustee within 30 days after the giving 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.




     (c) The Trustee may be removed at any time by Act of the Holders of a majority in
principal amount of the Outstanding Securities, delivered to the Trustee and to the Company.
If an instrument of acceptance by a successor Trustee in accordance with the applicable
requirements of Section 6.11 shall not have been delivered to the Company and the Trustee
being removed within 30 days after the giving 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.




     (d) If at any time:




     (i) the Trustee shall fail to comply with Section 6.08 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or




     (ii) the Trustee shall cease to be eligible under Section 6.09 and shall fail to
resign after written request therefor by the Company, any Guarantor or by any such
Holder, or




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


then, in any such case, (A) the Company or any Guarantor, in each case by a Board Resolution, may
remove the Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security 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.







27









 









     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.11, become the successor Trustee and supersede
the successor Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in accordance with the
applicable requirements of Section 6.11, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a successor
Trustee.




     (f) The Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee to all Holders in the manner provided in Section
1.07. Each notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.




     (g) The resignation or removal of the Trustee pursuant to this Section 6.10 shall not
affect the obligation of the Company to indemnify the Trustee pursuant to Section 6.07(3) in
connection with the exercise or performance by the Trustee prior to its resignation or
removal of any of its powers or duties hereunder.




     (h) No Trustee under this Indenture shall be liable for any action or omission of any
successor Trustee.



     SECTION 6.11. Acceptance of Appointment by Successor. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.



     SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. 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, however, that such
corporation shall be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to



28









 




such authenticating Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself authenticated such
Securities.




     SECTION 6.13. Preferential Collection of Claims Against the Company or a Guarantor. If and
when the Trustee shall be or become a creditor of the Company or a Guarantor (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 such Guarantor (or any such other
obligor).



     SECTION 6.14. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating
Agent or Agents which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange or registration of transfer or partial
redemption or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination by Federal or State authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with these provisions,
it shall resign immediately in the manner and with the effect specified in this Section.



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



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.07, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.



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



29









 





ARTICLE VII




Holders’ Lists and Reports by Trustee and Company



     SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will
furnish or cause to be furnished to the Trustee a list of the names and addresses of the Holders in
such form as the Trustee may reasonably request in writing, within 30 days after the receipt by the
Company of any such request, as of a date not more than 15 days prior to the time such list is
furnished; excluding from any such list names and addresses received by the Trustee in its capacity
as Security Registrar.



     SECTION 7.02. Preservation of Information; Communications to Holders. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as Security Registrar, if so
acting.




     (b) The rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding rights and duties
of the Trustee, shall be as provided by the Trust Indenture Act.




     (c) Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company, any Guarantor nor the Trustee nor any
agent of any of them shall be held accountable by reason of any disclosure of information as
to the names and addresses of Holders made pursuant to the Trust Indenture Act.



     SECTION 7.03. Reports by Trustee. (a) Within 60 days after June 15 of each year, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture
to the extent required pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.




     (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 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.



     SECTION 7.04. Reports by Company. The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such summaries thereof,
as may be required pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to the Trust Indenture Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is so required to be filed with the
Commission.



     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 Officer’s Certificates).



30









 





ARTICLE VIII




Consolidation, Merger, Conveyance, Transfer or Lease



     SECTION 8.01. Company May Consolidate, Etc. Only on Certain Terms. The Company will not, in
any transaction or series of transactions, merge or consolidate with or into, or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its properties and
assets as an entirety to, any Person or Persons unless at the time and after giving effect thereto:




     (1) either:




     (x) if the transaction or transactions is a merger or consolidation, the Company
shall be the surviving Person of such merger or consolidation, or




     (y) the Person formed by such consolidation or into which the Company is merged
or to which the properties and assets of the Company are transferred substantially as
an entirety (any such surviving Person or transferee Person being the “Surviving
Entity”) shall be a corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and shall expressly
assume by a supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the Securities
and this Indenture, and this Indenture, the Securities and the Guarantees shall
remain in full force and effect; and




     (2) immediately after giving effect to such transaction or series of transactions on a
pro forma basis, no Default or Event of Default shall have occurred and be continuing.



     In connection with any consolidation, merger, transfer, lease, assignment or other disposition
contemplated by the foregoing provisions of this Section 8.01, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
transfer, lease, assignment, or other disposition and the supplemental indenture in respect thereof
(required under clause (1)(y) of this Section 8.01) comply with the requirements of this Indenture.



     SECTION 8.02. Successor Substituted. Except as otherwise provided by Section 13.05, upon any
consolidation or merger, or any sale, assignment, conveyance, transfer, lease or disposition of all
or substantially all of the properties and assets of the Company in accordance with Section 8.01,
the successor Person formed by such consolidation or into which the Company is merged or the
successor Person to which such sale, assignment, conveyance, transfer, lease or disposition is made
shall succeed to, and be substituted for, and may exercise every right and power of the Company
under the Securities and this Indenture with the same effect as if such successor had been named as
the Company in the Securities and this Indenture and, except in the case of a lease, the Company
shall be released and discharged from its obligations thereunder.



ARTICLE IX




Amendments; Waivers; Supplemental Indentures



     SECTION 9.01. Amendments, Waivers and Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, when authorized by a Board Resolution, the Company and



31









 




each Guarantor, and the Trustee, at any time and from time to time, may together amend, waive
or supplement this Indenture or the Securities, for any of the following purposes:





     (i) to evidence the succession of another Person to the Company or a Guarantor and the
assumption by any such successor of the covenants of the Company or such Guarantor herein
and in the Securities or such Guarantor’s Guarantee and to evidence the assumption of
obligations under this Indenture;




     (ii) to add to the covenants of the Company or a Guarantor for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company or a
Guarantor;




     (iii) to secure the Securities;




     (iv) to comply with any requirements of the Commission in order to effect or maintain
the qualification of this Indenture under the Trust Indenture Act; or




     (v) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture;


provided, however, that (a) such amendment, waiver or supplement does not adversely affect the
rights of any Holder of Securities and (b) the Company shall have delivered to the Trustee an
Opinion of Counsel and Officer’s Certificate stating that such action pursuant to clauses (i),
(ii), (iii), (iv) or (v) above is permitted by this Indenture. The Trustee shall not be obligated
to enter into any such amendment, waiver or supplemental indenture that adversely affects its own
rights, duties or immunities under this Indenture or otherwise.




     SECTION 9.02. Modifications, Amendments and Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding
Securities, by Act of said Holders delivered to the Company and the Trustee, the Company and the
Guarantors, when authorized by Board Resolutions, and the Trustee may together modify, amend or
supplement this Indenture or the Securities for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner
the rights of the Holders under this Indenture; provided, however, that no such modification,
amendment or supplemental indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,




     (i) reduce the principal amount of, extend the Stated Maturity of or alter the
redemption provisions of, the Securities,




     (ii) change the currency in which any Securities or any premium or the interest
thereon is payable,




     (iii) reduce the percentage in principal amount of Outstanding Securities that must
consent to an amendment, supplement or waiver or consent to take any action under this
Indenture or the Securities or any Guarantee,




     (iv) impair the right to institute suit for the enforcement of any payment on or with
respect to the Securities or any Guarantee,



32









 






     (v) waive a default in payment with respect to the Securities or any Guarantee,




     (vi) reduce or change the rate or time for payment of interest on the Securities, or




     (vii) modify or change any provision of this Indenture affecting the ranking of the
Securities or any Guarantee in a manner adverse to the Holders of the Securities.



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



     The Trustee shall join with the Company and each Guarantor in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amendment or supplemental indenture.



     SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be given, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s
Certificate stating that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but 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; provided that the Trustee shall enter into and execute all other supplemental indentures
which satisfy all applicable conditions under this Article IX.



     SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



     SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in
effect.



     SECTION 9.06. Reference in Securities to Supplemental Indentures. Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture, provided that any failure by the Trustee to make such
notation shall not affect the validity of the matter provided for in such supplemental indenture or
any Security or Guarantee hereunder. If the Company shall so determine, new Securities or
Guarantees so modified as to conform, in the opinion of the Trustee, the Guarantors and the
Company, to any such supplemental indenture may be prepared and executed by the Company or
Guarantor and authenticated and delivered by the Trustee in exchange for Outstanding Securities.



     SECTION 9.07. Waiver of Certain Covenants. The Company may omit in any particular instance to
comply with any covenant or condition set forth in Section 8.01, and pursuant to Section 9.01(i),
if before the time for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become



33









 




effective, the obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.




     SECTION 9.08. No Liability for Certain Persons. No director, officer, employee, or
stockholder of the Company, nor any director, officer or employee of any Guarantor, as such, shall
have any liability for any obligations of the Company or any Guarantor under the Securities, the
Guarantees or this Indenture based on or by reason of such obligations or their creation. Each
Holder by accepting a Security waives and releases all such liability. The foregoing waiver and
release are an integral part of the consideration for the issuance of the Securities and the
Guarantees.



ARTICLE X




Covenants



     SECTION 10.01. Payment of Principal, Premium and Interest. The Company shall duly and
punctually pay the principal of (and premium, if any) and interest on the Securities in accordance
with the terms of the Securities and this Indenture. The Company will deposit or cause to be
deposited with the Trustee or its nominee, no later than the opening of business on the date of the
Stated Maturity of any Security or no later than the opening of business on the due date for any
installment of interest, all payments so due, which payments shall be in immediately available
funds on the date of such Stated Maturity or due date as the case may be.



     SECTION 10.02. Maintenance of Office or Agency. The Company shall maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company or any Guarantor in respect of the
Securities, the Guarantees and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at a Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands. In the event any such notice or demands are so made or served on the Trustee, the Trustee
shall promptly forward copies thereof to the Company.



     The Company may also from time to time designate one or more other offices or agencies (in or
outside the Borough of Manhattan, The City of New York) where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New
York, for such purposes. The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.



     The Company hereby initially designates the Trustee as Paying Agent and Security Registrar,
and the Corporate Trust Office of the Trustee, as one such office or agency of the Company for each
of the aforesaid purposes.



     SECTION 10.03. Money for Security Payments to be Held in Trust. If the Company shall at any
time act as its own Paying Agent, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due




34












 




until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.




     Whenever the Company shall have one or more Paying Agents, the Company will, prior to 11:00
a.m., New York City time, on each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.



     The Company shall cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will: (i) comply with the provisions of the
Trust Indenture Act applicable to it as Paying Agent and (ii) during the continuance of any default
by the Company (or any other obligor upon the Securities) in the making of any payment in respect
of the Securities, upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent as such.



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by such Paying Agent; and, upon such
payment by any Paying Agent (other than the Company) to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on any Security and
remaining unclaimed for two years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining will be repaid to the
Company.



     SECTION 10.04. Existence; Activities. Subject to Article VIII, the Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and material franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors of the Company in good
faith shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any material respect to
the Holders.



     SECTION 10.05. Statement by Officers as to Default; Compliance Certificates. (a) The Company
shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an
Officer’s Certificate, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or requirement of notice
provided hereunder), and if the



35









 




Company shall be in default, specifying all such defaults and the nature and status thereof of
which he may have knowledge.





     (b) The Company shall deliver to the Trustee, as soon as possible and in any event
within five days after the Company becomes aware of the occurrence of a Default or an Event
of Default, an Officer’s Certificate setting forth the details of such Default or Event of
Default, and the action which the Company proposes to take with respect thereto.



ARTICLE XI




Redemption of Securities



     SECTION 11.01. Right of Redemption. The Securities may be redeemed at the election of the
Company, in the amounts, at the times, at the Redemption Prices (together with any applicable
accrued and unpaid interest to the Redemption Date), and subject to the conditions specified in the
form of Security and hereinafter set forth.



     SECTION 11.02. Applicability of Article. Redemption of Securities at the election of the
Company, as permitted by this Indenture and the provisions of the Securities, shall be made in
accordance with such provisions and this Article.



     SECTION 11.03. Election to Redeem; Notice to Trustee. The election of the Company to redeem
any Securities pursuant to Section 11.01 shall be evidenced by a Board Resolution. In the event of
any redemption at the election of the Company pursuant to Section 11.01, the Company shall notify
the Trustee, in case of a redemption of less than all the Securities, at least 60 days, and in the
case of a redemption of all the Securities, at least 40 days, prior to the Redemption Date fixed by
the Company (in each case, unless a shorter notice shall be satisfactory to the Trustee) of such
Redemption Date and of the principal amount of Securities to be redeemed.



     SECTION 11.04. Selection by Trustee of Securities to Be Redeemed. In the event that less than
all of the Securities are to be redeemed at any time, selection of such Securities for redemption
will be made by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities are listed or, if the Securities are not then
listed on a national securities exchange, on a pro rata basis, by lot or by such method as the
Trustee shall deem fair and appropriate (subject to the rules of the Depositary); provided,
however, that Securities shall only be redeemable in amounts of $1,000 or an integral multiple of
$1,000.



     The Trustee shall promptly notify the Company and each Security Registrar in writing of the
Securities selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.



     For all purposes of this Indenture and of the Securities, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.



     SECTION 11.05. Notice of Redemption. Notice of redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the Security Register, except
that redemption notices may be mailed more than 60 days prior to the Redemption Date if the notice
of



36









 




redemption is issued in connection with (i) a satisfaction and discharge of securities in
accordance with Article IV or (ii) a defeasance in accordance with Article XII.




     All notices of redemption shall identify the Securities to be redeemed (including, if used,
CUSIP or CINS numbers) and shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price;




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




     (iv) that on the Redemption Date the Redemption Price and accrued interest to, but
excluding, the Redemption Date will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on and after such Redemption Date;
and




     (v) the place or places where such Securities are to be surrendered for payment of the
Redemption Price and accrued interest to, but excluding, the Redemption Date.



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request and provision of such notice information five
days prior to the notice being mailed, by the Trustee in the name and at the expense of the Company
and shall be irrevocable.



     SECTION 11.06. Deposit of Redemption Price. Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
any applicable accrued interest on, all the Securities which are to be redeemed on that date.



     SECTION 11.07. Securities Payable on Redemption Date. Notice of redemption having been given
as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and any applicable accrued interest or the
Paying Agent is prohibited from making such payment pursuant to Article XIV) interest shall cease
to accrue on such Securities or portions thereof. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with any applicable accrued and unpaid interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or more predecessor
securities, registered as such at the close of business on the relevant record dates according to
their terms and the provisions of Section 3.07.



     If any Security called for redemption in accordance with the election of the Company made
pursuant to Section 11.01 shall not be so paid upon surrender thereof for redemption, the principal
(and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate
provided by the Security.



     SECTION 11.08. Securities Redeemed in Part. Any Security which is to be redeemed only in part
shall be surrendered at an office or agency of the Company designated for that purpose pursuant to



37









 




Section 10.02 (with, if the Company or the Trustee so requires, due endorsement by, or 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), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as requested by such Holder,
in aggregate principal amount at Stated Maturity equal to and in exchange for the unredeemed
portion of the principal amount at Stated Maturity of the Security so surrendered.




ARTICLE XII




Defeasance and Covenant Defeasance



     SECTION 12.01. Company’s Option to Effect Defeasance or Covenant Defeasance. The Company may
elect, at its option at any time, to have Section 12.02 or Section 12.03 applied to the Outstanding
Securities (as a whole and not in part) upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution.



     SECTION 12.02. Defeasance and Discharge. Upon the Company’s exercise of its option to have
this Section applied to the Outstanding Securities (as a whole and not in part), the Company shall
be deemed to have been discharged from its obligations with respect to such Securities as provided
in this Section on and after the date the conditions set forth in Section 12.04 are satisfied
(hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by such Securities and to
have satisfied all its other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall survive until otherwise
terminated or discharged hereunder: (1) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 12.04 and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest on such Securities
when payments are due, (2) the Company’s obligations with respect to such Securities under Sections
3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may
exercise its option to have this Section applied to the Outstanding Securities (as a whole and not
in part) notwithstanding the prior exercise of its option to have Section 12.03 applied to such
Securities.



     SECTION 12.03. Covenant Defeasance. Upon the Company’s exercise of its option to have this
Section applied to the Outstanding Securities (as a whole and not in part), (i) the Company shall
be released from its obligations under Article VIII and Sections 7.04, 10.02, 10.04 and 10.05 as
well as any additional covenants specified in any applicable supplemental indenture and the
Guarantors shall be released from their obligations under Article XIII and the Guarantees, and (ii)
the occurrence of any event specified in such provisions, and any such covenants provided pursuant
to Section 9.01, shall be deemed not to be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date the conditions set
forth in Section 12.04 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose,
such Covenant Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth
in any such specified Section, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.



38









 





     SECTION 12.04. Conditions to Defeasance or Covenant Defeasance. The following shall be the
conditions to the application of Section 12.02 or Section 12.03 to the Outstanding Securities:




     (1) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 6.09
and agrees to comply with the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of, premium, if any, and any
installment of interest on such Securities on the respective Stated Maturities or Redemption
Date thereof, in accordance with the terms of this Indenture and such Securities. As used
herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation
of the United States of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable or redeemable
at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a) (2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.




     (2) In the event of an election to have Section 12.02 apply to the Outstanding
Securities, the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (A) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this instrument, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not recognize gain or loss
for federal income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.




     (3) In the event of an election to have Section 12.03 apply to the Outstanding
Securities, the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Securities will not recognize gain or loss for federal
income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.




     (4) No Default or Event of Default with respect to the Outstanding Securities shall
have occurred and be continuing at the time of such deposit.



39









 






     (5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest with respect to any securities of the Company or any Guarantor.




     (6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation
of, or constitute a default under, any other material agreement or instrument to which the
Company or any Subsidiary is a party or by which it is bound.




     (7) The Company shall have delivered to the Trustee an Opinion of Counsel (which
opinion may be subject to customary assumptions and exceptions) to the effect that after the
91st day following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally.




     (8) The Company shall have delivered to the Trustee an Officer’s Certificate stating
that the deposit was not made by the Company with the intent of preferring the Holders of
the Securities over the other creditors of the Company or any Guarantor with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or
others.




     (9) No event or condition shall exist that would prevent the Company from making
payments of the principal of, premium, if any, and interest on the Securities on the date of
such deposit or at any time ending on the 91st day after the date of such deposit.




     (10) The Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent under this Indenture to
either Defeasance or Covenant Defeasance, as the case may be, have been complied with.



     SECTION 12.05. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee
or other qualifying trustee (solely for purposes of this Section and Section 12.06, the Trustee and
any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 12.04 in
respect of the Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 12.04 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 12.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be deposited to effect
the Defeasance or Covenant Defeasance, as the case may be, with respect to the Outstanding
Securities.



     SECTION 12.06. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article with respect to any Securities by reason of any order or judgment



40









 




of any court or governmental authority enjoining, restraining, or otherwise prohibiting such
application, then the obligations under this Indenture, such Securities and the Guarantees from
which the Company and the Guarantors have been discharged or released pursuant to Section 12.02 or
Section 12.03 shall be revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 12.05 with respect to such
Securities in accordance with this Article; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in trust.




ARTICLE XIII




Guarantee



     SECTION 13.01. Guarantee. Each Guarantor hereby unconditionally and irrevocably guarantees on
a subordinated basis, jointly and severally, to each Holder and to the Trustee and its successors
and assigns (a) the full and prompt payment (within applicable grace periods) of principal of and
interest on the Securities when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under this Indenture and the
Securities and (b) the full and prompt performance within applicable grace periods of all other
obligations of the Company under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the “Guarantee Obligations”). Each Guarantor further agrees that
the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Guarantor, and that such Guarantor will remain bound under this Article
XIII notwithstanding any extension or renewal of any Guarantee Obligation.



     To the extent that any Guarantor shall be required to pay any amounts on account of the
Securities pursuant to a Guarantee in excess of an amount calculated as the product of (i) the
aggregate amount payable by the Guarantors on account of the Securities pursuant to their
respective Guarantees times (ii) the proportion (expressed as a fraction) that such Guarantor’s net
assets (determined in accordance with GAAP) at the date enforcement of the Guarantees is sought
bears to the aggregate net assets (determined in accordance with GAAP) of all Guarantors at such
date, then such Guarantor shall be reimbursed by the other Guarantors for the amount of such
excess, pro rata, based upon the respective net assets (determined in accordance with GAAP) of such
other Guarantors at the date enforcement of the Guarantees is sought. This paragraph is intended
only to define the relative rights of Guarantors as among themselves, and nothing set forth in this
paragraph is intended to or shall impair the joint and several obligations of the Guarantors under
their respective Guarantees.



     The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long
as the exercise of such right does not impair the rights of the Holders under any Guarantee.



     Each Guarantor waives presentation to, demand of payment from and protest to the Company of
any of the Guarantee Obligations and also waives notice of protest for nonpayment. Each Guarantor
waives notice of any default under the Securities or the Guarantee Obligations. The obligations of
each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any right or remedy against the Company or any other
Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension
or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Securities or any other agreement; (d) the release of
any security held by any Holder or the Trustee for the Guarantee Obligations or any of them; (e)
the failure of any Holder or Trustee to exercise



41









 




any right or remedy against any other guarantor of the Guarantee Obligations; or (f) any
change in the ownership of any Guarantor (subject to Section 13.05).




     Each Guarantor further agrees that its Guarantee herein constitutes a guaranty of payment,
performance and compliance when due (and not a guaranty of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security held for payment of the
Guarantee Obligations.



     To the fullest extent permitted by law, the obligations of each Guarantor hereunder shall not
be subject to any reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guarantee Obligations or otherwise. Without
limiting the generality of the foregoing, to the fullest extent permitted by law, the obligations
of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the Guarantee
Obligations, or by any other act or thing or omission or delay to do any other act or thing which
may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise
operate as a discharge of each Guarantor as a matter of law or equity.



     Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or
interest on any Guarantee Obligation is rescinded or must otherwise be restored by any Holder or
the Trustee upon the bankruptcy or reorganization of the Company or otherwise.



     In furtherance of the foregoing and not in limitation of any other right which any Holder or
the Trustee has at law or in equity against each Guarantor by virtue hereof, upon the failure of
the Company to pay the principal of or interest on any Guarantee Obligation when and as the same
shall become due, whether at maturity, by acceleration, by redemption or otherwise (within
applicable grace periods), or to perform or comply with any other Guarantee Obligation (within
applicable grace periods), each Guarantor hereby promises to and shall, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee
an amount equal to the sum of (i) the unpaid principal amount of such Guarantee Obligations, (ii)
accrued and unpaid interest on such Guarantee Obligations (but only to the extent not prohibited by
law) and (iii) all other monetary Guarantee Obligations of the Company to the Holders and the
Trustee.



     Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any Guarantee Obligations guaranteed hereby until payment in full of all
Guarantee Obligations. Each Guarantor further agrees that, as between the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Guarantee
Obligations guaranteed hereby may be accelerated as provided in Article V for the purposes of its
Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guarantee Obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such Guarantee Obligations as provided in Article V, such Guarantee
Obligations (whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purposes of this Section.



     Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under
this Section.



42









 





     SECTION 13.02. Limitation on Liability. Any term or provision of this Indenture to the
contrary notwithstanding, the maximum aggregate amount of the obligations guaranteed hereunder by
each Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering
this Indenture, as it relates to such Guarantor, voidable under applicable federal or state law
relating to fraudulent conveyance or fraudulent transfer.



     SECTION 13.03. Execution and Delivery of Guarantees. The Guarantees to be endorsed on the
Securities shall be in the form set forth in Exhibit B. Each of the Guarantors hereby agrees to
execute its Guarantee in such form, to be endorsed on each Security authenticated and delivered by
the Trustee.



     Each Guarantee shall be executed on behalf of each respective Guarantor by any one of such
Guarantor’s Chairman of the Board of Directors, Vice Chairman of the Board of Directors, President,
Chief Financial Officer or Vice Presidents and any authorized signatories for any Guarantors that
are not corporations. The signature of any or all of these officers on the Guarantee may be manual
or facsimile.



     A Guarantee bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of a Guarantor shall bind such Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and delivery of the
Security on which such Guarantee is endorsed or did not hold such offices at the date of such
Guarantee.



     Each Guarantee shall be registered, transferred, exchanged and cancelled, and shall be held in
definitive or global form, in the same manner and together with, the Security to which it relates,
in accordance with Article III.



     The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantors. Each of the
Guarantors hereby jointly and severally agrees that its Guarantee set forth in Section 13.01 shall
remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Security.



     SECTION 13.04. Guarantors May Consolidate, Etc., on Certain Terms. Nothing contained in this
Indenture or in any of the Securities or any Guarantee shall prevent any consolidation or merger of
a Guarantor with or into the Company or a Guarantor shall prevent any sale or conveyance of the
assets of a Guarantor as an entirety or substantially as an entirety or the Capital Stock of a
Guarantor to the Company or a Guarantor.



     SECTION 13.05. Release of Guarantors. The Guarantee of a Guarantor shall automatically be
released from all obligations under its Guarantee endorsed on the Securities and under this Article
XIII without need for any further act or the execution or delivery or any document: (i) upon the
sale or other disposition (including by way of consolidation or merger) of such Guarantor other
than to the Company or another Guarantor and as permitted by this Indenture; (ii) upon the sale or
disposition of all or substantially all of the assets of such Guarantor other than to the Company
or another Guarantor and as permitted by this Indenture or (iii) upon Defeasance or Covenant
Defeasance in accordance with Article XII. Upon delivery by the Company to the Trustee of an
Officer’s Certificate to the effect that such transaction was made in accordance with the
provisions hereof, the Trustee shall execute any documents reasonably required in order to evidence
the release of such Guarantor from its obligations under its Guarantee endorsed on the Securities
and under this Article XIII.



     SECTION 13.06. Successors and Assigns. This Article XIII shall be binding upon each Guarantor
and its successors and assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or
the Trustee, the rights and privileges conferred upon that party in this Indenture and in the
Securities shall



43









 




automatically extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of this Indenture.




     SECTION 13.07. No Waiver, etc. Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this Article XIII shall
operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this
Article XIII, at law, in equity, by
statute or otherwise.



     SECTION 13.08. Modification, etc. No modification, amendment or waiver of any provision of
this Article, nor the consent to any departure by a Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given. No
notice to or demand on a Guarantor in any case shall entitle such Guarantor or any other guarantor
to any other or further notice or demand in the same, similar or other circumstances.



     SECTION 13.09. Subordination of Guarantee. The obligations of each Guarantor pursuant to its
Guarantee and this Article XIII shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such Securities, and the Securities were referenced to such
Guarantor and such Guarantor’s Guarantee.



ARTICLE XIV




Subordination



     SECTION 14.01. Subordination Terms. The payment by the Company of the principal of, premium,
if any, and interest on any series of Securities issued hereunder shall be subordinated to the
extent set forth in an indenture supplemental hereto relating to such Securities.



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




44











 





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



	 	 	 	 	 
	 	THE GREENBRIER COMPANIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	EACH OF THE GUARANTORS LISTED ON SCHEDULE A HERETO
THAT IS A CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	EACH OF THE GUARANTORS LISTED ON SCHEDULE A HERETO
THAT IS A LIMITED
PARTNERSHIP, BY ITS GENERAL PARTNER

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	EACH OF THE GUARANTORS LISTED ON
SCHEDULE A HERETO
THAT IS A LIMITED
LIABILITY COMPANY, BY ITS MANAGING
MEMBER OR MANAGER

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AS TRUSTEE
 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



45









 






	 	 	 	 	 



SCHEDULE A




	 	 	 
	Guarantor	 	Place of Formation
	 
	Autostack Company LLC

	 	Oregon
	Greenbrier-Concarril, LLC

	 	Delaware
	Greenbrier Leasing Company LLC

	 	Oregon
	Greenbrier Leasing Limited Partner, LLC

	 	Delaware
	Greenbrier Management Services, LLC

	 	Delaware
	Greenbrier Leasing, L.P.

	 	Delaware
	Greenbrier Railcar LLC

	 	Oregon
	Gunderson LLC

	 	Oregon
	Gunderson Marine LLC

	 	Oregon
	Gunderson Rail Services LLC

	 	Oregon
	Greenbrier Railcar Leasing, Inc.

	 	Washington
	Gunderson Specialty Products, LLC

	 	Delaware
	Brandon Railroad LLC

	 	Oregon
	Meridian Rail Holdings Corp.

	 	Oregon
	Meridian Rail Acquisition Corp.

	 	Oregon
	Meridian Rail Mexico City Corp.

	 	Oregon
	Greenbrier Rail Holdings I, LLC

	 	Oregon
	Greenbrier Rail Holdings II, LLC

	 	Oregon
	Greenbrier Rail Holdings III, LLC

	 	Oregon







 





Schedule A









 








APPENDIX




PROVISIONS RELATING TO SECURITIES



1. Definitions




     1.1 Definitions



     For the purposes of this Appendix the following terms shall have the meanings indicated below:



     “Definitive Security” means a certificated Security that does not include the Global
Securities Legend.



     “Depositary” means The Depository Trust Company, its nominees and their respective successors.



     “Global Securities Legend” means the legend set forth under that caption in Exhibit A to this
Indenture.



     “Securities Custodian” means the custodian with respect to a Global Security (as appointed by
the Depositary) or any successor person thereto, who shall initially be the Trustee.



     1.2 Other Definitions



	 	 	 	 	 
	     Term:	 	Defined in Section:
	“Agent Members”

	 	 	2.1	(b)
	“Global Security”

	 	 	2.1	(a)






2. The Securities




     2.1 Form.




     (a) Global Securities. The Securities shall be issued initially in the form of
one or more global Securities in definitive, fully registered form (collectively, the
“Global Security”) without interest coupons and bearing the Global Securities Legend, which
shall be deposited on behalf of the Holders of the Securities represented thereby with the
Securities Custodian, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as provided in
this Indenture. The aggregate principal amount of the Global Securities may from time to
time be increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee and on the schedules thereto as hereinafter provided.




     (b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global
Security deposited with or on behalf of the Depositary.



     The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b) and
Section 2.2 and pursuant to an order of the Company signed by one officer of the Company,
authenticate and deliver initially one or more Global Securities that (i) shall be registered in
the name of the Depositary for such Global Security or Global Securities or the nominee of such
Depositary and (ii) shall



Appendix -1









 




be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions
or held by the Trustee as Securities Custodian.




     Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary or by the
Trustee as Securities Custodian or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global
Security.




     (c) Definitive Securities. Except as provided in Section 2.3 or 2.4, owners of
beneficial interests in Global Securities will not be entitled to receive physical delivery
of certificated Securities.



     2.2 Authentication. The Trustee shall authenticate and make available for delivery
upon a written order of the Company signed by one Officer of the Company (a) Securities for
original issue on the date hereof in an aggregate principal amount of
$[                 ] and
(b) subject to the terms of this Indenture, Additional Securities in an unlimited aggregate
principal amount. Such order shall specify the amount of the Securities to be authenticated, the
date on which the original issue of Securities is to be authenticated and, in the case of an
issuance of Additional Securities pursuant to Section 3.13 after the Issue Date, shall certify that
such issuance is in compliance with this Indenture.



     2.3 Transfer and Exchange.




     (a) Transfer and Exchange of Definitive Securities. When Definitive Securities
are presented to the Security Registrar with a request:




     (i) to register the transfer of such Definitive Securities; or




     (ii) to exchange such Definitive Securities for an equal principal amount of
Definitive Securities of other authorized denominations,


the Security Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; provided, however, that the
Definitive Securities surrendered for transfer or exchange shall be duly endorsed or accompanied by
a written instrument of transfer in form reasonably satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.





     (b) Restrictions on Transfer of a Definitive Security for a Beneficial Interest in
a Global Security. A Definitive Security may not be exchanged for a beneficial interest
in a Global Security except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Security, duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and the Security
Registrar, together with written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records with respect to
such Global Security to reflect an increase in the aggregate principal amount of the
Securities represented by the Global Security, such instructions to contain information
regarding the Depositary account to be credited with such increase, then the Trustee shall
cancel such Definitive Security and cause, or direct the Securities



Appendix - 2









 






Custodian to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Securities Custodian, the aggregate principal amount
of Securities represented by the Global Security to be increased by the aggregate principal
amount of the Definitive Security to be exchanged and shall credit or cause to be credited
to the account of the Person specified in such instructions a beneficial interest in the
Global Security equal to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not been previously
exchanged for certificated securities pursuant to Section 2.4, the Company shall issue and
the Trustee shall authenticate, upon written order of the Company in the form of an
Officer’s Certificate, a new Global Security in the appropriate principal amount.




     (c) Transfer and Exchange of Global Securities.




     (i) The transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with this Indenture
and the procedures of the Depositary therefor. A transferor of a beneficial
interest in a Global Security shall deliver a written order given in accordance with
the Depositary’s procedures containing information regarding the participant account
of the Depositary to be credited with a beneficial interest in such Global Security
or another Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security and the
account of the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Security being transferred.




     (ii) If the proposed transfer is a transfer of a beneficial interest in one
Global Security to a beneficial interest in another Global Security, the Security
Registrar shall reflect on its books and records the date and an increase in the
principal amount of the Global Security to which such interest is being transferred
in an amount equal to the principal amount of the interest to be so transferred, and
the Security Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from which such
interest is being transferred.




     (iii) Notwithstanding any other provisions of this Appendix (other than the
provisions set forth in Section 2.4), a Global Security may not be transferred as a
whole except by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.




     (d) Cancelation or Adjustment of Global Security. At such time as all
beneficial interests in a Global Security have either been exchanged for Definitive
Securities, transferred, redeemed, repurchased or canceled, such Global Security shall be
returned by the Depositary to the Trustee for cancelation or retained and canceled by the
Trustee. At any time prior to such cancelation, if any beneficial interest in a Global
Security is exchanged for Definitive Securities, transferred in exchange for an interest in
another Global Security, redeemed, repurchased or canceled, the principal amount of
Securities represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities Custodian for
such Global Security) with respect to such Global Security, by the Trustee or the Securities
Custodian, to reflect such reduction.



Appendix - 3









 






     (e) Obligations with Respect to Transfers and Exchanges of Securities.




     (i) To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate, Definitive Securities and Global
Securities at the Security Registrar’s request.




     (ii) No service charge shall be made for any registration of transfer or
exchange of Securities except as provided in Section 3.06 of this Indenture, 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 registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 3.04,
3.12, 9.06 or 11.08 of this Indenture, and in any such case not involving any
transfer.




     (iii) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent or the Security Registrar may
deem and treat the person in whose name a Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee, the Paying Agent or the
Security Registrar shall be affected by notice to the contrary.




     (iv) All Securities issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer or
exchange.




     (f) No Obligation of the Trustee.




     (i) The Trustee shall have no responsibility or obligation to any beneficial
owner of a Global Security, a member of, or a participant in the Depositary or any
other Person with respect to the accuracy of the records of the Depositary or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Securities shall be given
or made only to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in any Global
Security shall be exercised only through the Depositary subject to the applicable
rules and procedures of the Depositary. The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depositary with respect to
its members, participants and any beneficial owners.




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



Appendix - 4









 





     2.4 Definitive Securities




     (a) A Global Security deposited with the Depositary or with the Trustee as Securities
Custodian pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in
the form of Definitive Securities in an aggregate principal amount equal to the principal
amount of such Global Security, in exchange for such Global Security, only if such transfer
complies with Section 2.3 and (i) the Depositary notifies the Company that it is unwilling
or unable to continue as a Depositary for such Global Security or if at any time the
Depositary ceases to be a “clearing agency” registered under the Exchange Act, and a
successor depositary is not appointed by the Company within 90 days of such notice or after
the Company becomes aware of such cessation, or (ii) an Event of Default has occurred and is
continuing or (iii) the Company, in its sole discretion, notifies the Trustee in writing
that it elects to cause the issuance of certificated Securities under this Indenture.




     (b) Any Global Security that is transferable to the beneficial owners thereof pursuant
to this Section 2.4 shall be surrendered by the Depositary to the Trustee, to be so
transferred, in whole or from time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such Global Security, an
equal aggregate principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any integral multiple
thereof and registered in such names as the Depositary shall direct.




     (c) Subject to the provisions of Section 2.4(b), the registered Holder of a Global
Security may grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.




     (d) In the event of the occurrence of any of the events specified in Section 2.4(a)(i),
(ii) or (iii), the Company will promptly make available to the Trustee a reasonable supply
of Definitive Securities in fully registered form without interest coupons.




Appendix - 5












 





Exhibit A




[FORM OF SECURITY]




[Global Securities Legend]



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



     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DEPOSITARY, TO NOMINEES OF DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



A-1









 





The Greenbrier Companies, Inc.




[         ]% Subordinated Note due 20[         ]



			
	No.
	 	$
	 
	 	CUSIP NO.






     The Greenbrier Companies, Inc., a corporation duly organized and existing under the laws of
the State of Oregon (herein called the “Company”, which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum listed on the Schedule of Increases or Decreases in Global
Security attached hereto on [                    ], 20[     ] and to pay interest thereon from [                    ], 20[     ] or
from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually in arrears on [                    ] and
[                    ] in each year, commencing [                    ], 20[     ] at the rate of [     ]% per annum, until the principal hereof is paid or duly
provided for, provided, however, that any principal and premium, and any such installment of interest, which is overdue shall bear
interest at the rate of [     ]% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they are paid or duly
provided for. The interest so payable and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security
(or one or more predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the [                    ] and [                    ] (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Security
(or one or more predecessor Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.



     Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The
City of New York, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided, however, that, at the
option of the Company, payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.



     Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



A-2









 





     Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.



     IN WITNESS WHEREOF, the Company has caused this Security to be duly executed.



	 	 	 	 	 
	 	THE GREENBRIER COMPANIES, INC.


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Attest


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION



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




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 	 	 
	AS TRUSTEE	 	 






	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






A-3









 






Form of Reverse of Security




     This Security is one of a duly authorized issue of Securities of the Company designated as [     ]% Subordinated
Notes due [     ] (herein called the “Securities”), limited in aggregate
principal amount on the Issue Date to $[                    ] issued and to be issued under an
Indenture, dated as of [     ], 20[     ] (herein called the “Indenture,” which
term shall have the meaning assigned to it in such instrument), among the Company, the guarantors
named therein and [               ], as Trustee (herein called the “Trustee,” which term includes any
successor trustee under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. The Company shall be entitled, subject to its
compliance with the terms of the Indenture, to issue Additional Securities pursuant to Section 3.13
of the Indenture. The Securities include the Securities issued on the Issue Date and any
Additional Securities. The Securities issued on the Issue Date and any Additional Securities are
treated as a single class of securities under the Indenture.



     The terms of the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. 7aaa-77bbbb (the “TIA”), as in
effect on the date of the Indenture. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and Holders of Securities are referred to the Indenture
and the TIA for a statement of such terms.



     This Security is redeemable at the option of the Company, in whole or in part, at any time on
or after [     ], 20[     ], at the Redemption Prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest, if any, thereon to the Redemption Date,
if redeemed during the twelve month period beginning on [     ] of the years indicated below:



	 	 	 	 	 
	 	 	Redemption
	Year	 	Price
	 

	 	 	%	 






     The Securities are not subject to any sinking fund.



     The Indenture contains provisions for defeasance at any time of the entire indebtedness of
this Security or of certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the Indenture.



     If an Event of Default shall occur and be continuing, there may be declared due and payable
the principal of, premium, if any, and accrued and unpaid interest, if any, on all of the
outstanding Securities, in the manner and with the effect provided in the Indenture.



     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security



A-4









 




issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.




     As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities, the Holders of not less than 25% in principal amount of the Securities at the time
Outstanding shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to the
Trustee and the Trustee shall not have received from the Holders of a majority in principal amount
of Securities at the time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding for 45 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to certain suits described in the Indenture, including
any suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein (or,
in the case of redemption, on or after the Redemption Date).



     No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.



     This Security is issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities
of like tenor of a different authorized denomination, as requested by the Holder surrendering the
same.



     No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.



     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.



     Interest on this Security shall be computed on the basis of a 360-day year comprised of twelve
30-day months.



     The obligations of the Company under the Indenture and this Security are expressly
subordinated to the extent set forth in Article XIV of the Indenture, and reference is hereby made
to such Indenture for the precise terms of such subordination.



A-5









 





     As provided in the Indenture and subject to certain limitations therein set forth, the
obligations of the Company under the Indenture and this Security are Guaranteed pursuant to
Guarantees endorsed hereon as provided in the Indenture. Each Holder, by holding this Security,
agrees to all of the terms and provisions of said Guarantees. The Indenture provides that each
Guarantor shall be released from its Guarantee upon compliance with certain conditions.



     All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.



     The Indenture and this Security shall be governed by and construed in accordance with the laws
of the State of New York.



A-6









 





ASSIGNMENT FORM



To assign this Security, fill in the form below:



I or we assign and transfer this Security to




          (Print or type assignee’s name, address and zip code)




          (Insert assignee’s soc. sec. or tax I.D. No.)



and irrevocably appoint   agent to transfer this Security on the books of the Company. The
agent may substitute another to act for him.




 




Date:                
                 
         Your Signature:                    
                     




 




Sign exactly as your name appears on the other side of this Security.







A-7









 








[TO BE ATTACHED TO GLOBAL SECURITIES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY



     The initial principal amount of this Global Security is $[     ]. The following increases
or decreases in this Global Security have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Signature of
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	authorized
	 	 	 	 	Amount of decrease	 	increase in	 	Principal amount of	 	signatory of
	 	 	 	 	in Principal	 	Principal	 	this Global Security	 	Trustee or
	Date of	 	Amount of this	 	Amount of this	 	following such	 	Securities
	Exchange	 	Global Security	 	Global Security	 	decrease or increase	 	Custodian





A-8









 






EXHIBIT B




FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE




GUARANTEE



     Each of the undersigned guarantors (each a “Guarantor,” or together, the “Guarantors”) which
term includes any successor under the Indenture (the “Indenture”) referred to in the Security upon
which this notation is endorsed), hereby unconditionally and irrevocably guarantees on a
subordinated basis, jointly and severally with each other Guarantor of the Securities, to each
Holder and to the Trustee and its successors and assigns (a) the full and prompt payment (within
applicable grace periods) of principal of and interest on the Securities when due, whether at
maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the
Company under the Indenture and the Securities and (b) the full and prompt performance within
applicable grace periods of all other obligations of the Company under the Indenture and the
Securities, subject to certain limitations set forth in the Indenture (all the foregoing being
hereinafter collectively called the “Guarantee Obligations”). The Guarantor further agrees that
the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Guarantor, and that such Guarantor will remain bound under Article XIII of
the Indenture notwithstanding any extension or renewal of any Guarantee Obligation. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless otherwise indicated.



     Subject to the terms of the Indenture, this Guarantee shall be binding upon the Guarantor and
its successors and assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or
the Trustee, the rights and privileges herein conferred upon that party shall automatically extend
to and be vested in such transferee or assignee, all subject to the terms and conditions hereof.



     This Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Security upon which this Guarantee is noted shall have been executed by the
Trustee under the Indenture by the signature of one of its authorized signatories.



     Notwithstanding any other provision of the Indenture or this Guarantee, under the Indenture
and this Guarantee the maximum aggregate amount of the obligations guaranteed by the Guarantor
shall not exceed the maximum amount that can be guaranteed without rendering the Indenture or this
Guarantee, as it relates to such Guarantor, voidable under applicable federal or state law relating
to fraudulent conveyance or fraudulent transfer. This Guarantee shall be governed by and construed
in accordance with the laws of the State of New York.



[Signature page follows]






B-9









 








	 	 	 	 	 
	 	THE GREENBRIER COMPANIES, INC.


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[GUARANTORS]


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




B-10