exv4w1






Exhibit 4.1




L-3 Communications Corporation,




As Issuer



 





INDENTURE



Dated as of [                    ], 2010



 





The
Bank of New York Mellon Trust Company, N.A.,



as Trustee



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Other Definitions
	 	 	8	 
	Section 1.3 Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	Section 1.4 Rules of Construction
	 	 	8	 
	 
	 	 	 	 
	ARTICLE II. THE SECURITIES
	 	 	9	 
	 
	 	 	 	 
	Section 2.1 Issuable in Series
	 	 	9	 
	Section 2.2 Establishment of Terms of Series of Securities
	 	 	9	 
	Section 2.3 Execution and Authentication
	 	 	12	 
	Section 2.4 Registrar and Paying Agent
	 	 	13	 
	Section 2.5 Paying Agent to Hold Money in Trust
	 	 	14	 
	Section 2.6 Holder Lists
	 	 	14	 
	Section 2.7 Transfer and Exchange
	 	 	14	 
	Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	15	 
	Section 2.9 Outstanding Securities
	 	 	15	 
	Section 2.10 Treasury Securities
	 	 	16	 
	Section 2.11 Temporary Securities
	 	 	16	 
	Section 2.12 Cancellation
	 	 	16	 
	Section 2.13 Defaulted Interest
	 	 	16	 
	Section 2.14 Special Record Dates
	 	 	17	 
	Section 2.15 Global Securities
	 	 	17	 
	Section 2.16 CUSIP Numbers
	 	 	18	 
	Section 2.17 Persons Deemed Owners
	 	 	19	 
	 
	 	 	 	 
	ARTICLE III. REDEMPTION
	 	 	19	 
	 
	 	 	 	 
	Section 3.1 Notice to Trustee
	 	 	19	 
	Section 3.2 Selection of Securities to be Redeemed
	 	 	19	 
	Section 3.3 Notice of Redemption
	 	 	20	 
	Section 3.4 Effect of Notice of Redemption
	 	 	21	 
	Section 3.5 Deposit of Redemption Price
	 	 	21	 
	Section 3.6 Securities Redeemed in Part
	 	 	21	 
	 
	 	 	 	 
	ARTICLE IV. COVENANTS
	 	 	21	 
	 
	 	 	 	 
	Section 4.1 Payment of Principal and Interest
	 	 	21	 
	Section 4.2 Additional Amounts
	 	 	21	 
	Section 4.3 Maintenance of Office or Agency
	 	 	22	 
	Section 4.4 SEC Reports
	 	 	22	 
	Section 4.5 Compliance Certificate
	 	 	23	 
	Section 4.6 Taxes
	 	 	24	 






i









 






	 	 	 	 	 
	 	 	Page	 
	Section 4.7 Stay, Extension and Usury Laws
	 	 	24	 
	Section 4.8 Corporate Existence
	 	 	24	 
	Section 4.9 Sale and Leaseback Transactions
	 	 	24	 
	Section 4.10 Liens
	 	 	25	 
	Section 4.11 Future Subsidiary Guarantees
	 	 	25	 
	 
	 	 	 	 
	ARTICLE V. SUCCESSORS
	 	 	26	 
	 
	 	 	 	 
	Section 5.1 Merger, Consolidation, or Sale of Assets
	 	 	26	 
	Section 5.2 Successor Person Substituted
	 	 	26	 
	Section 5.3 Delivery of Officers’ Certificate and Opinion of Counsel
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VI. DEFAULTS AND REMEDIES
	 	 	27	 
	 
	 	 	 	 
	Section 6.1 Events of Default
	 	 	27	 
	Section 6.2 Acceleration
	 	 	28	 
	Section 6.3 Other Remedies
	 	 	29	 
	Section 6.4 Waiver of Past Defaults
	 	 	29	 
	Section 6.5 Control by Majority
	 	 	29	 
	Section 6.6 Limitation on Suits
	 	 	30	 
	Section 6.7 Rights of Holders of Securities to Receive Payment
	 	 	30	 
	Section 6.8 Collection Suit by Trustee
	 	 	30	 
	Section 6.9 Trustee May File Proofs of Claim
	 	 	31	 
	Section 6.10 Priorities
	 	 	31	 
	Section 6.11 Undertaking for Costs
	 	 	32	 
	 
	 	 	 	 
	ARTICLE VII. TRUSTEE
	 	 	32	 
	 
	 	 	 	 
	Section 7.1 Duties of Trustee
	 	 	32	 
	Section 7.2 Rights of Trustee
	 	 	33	 
	Section 7.3 Individual Rights of Trustee
	 	 	34	 
	Section 7.4 Trustee’s Disclaimer
	 	 	34	 
	Section 7.5 Notice of Defaults
	 	 	34	 
	Section 7.6 Reports by Trustee to Holders
	 	 	35	 
	Section 7.7 Compensation and Indemnity
	 	 	35	 
	Section 7.8 Replacement of Trustee
	 	 	36	 
	Section 7.9 Successor Trustee by Merger, etc.
	 	 	37	 
	Section 7.10 Eligibility; Disqualification
	 	 	37	 
	Section 7.11 Preferential Collection of Claims Against Company
	 	 	37	 
	 
	 	 	 	 
	ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	37	 
	 
	 	 	 	 
	Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	37	 
	Section 8.2 Legal Defeasance and Discharge
	 	 	37	 
	Section 8.3 Covenant Defeasance
	 	 	38	 
	Section 8.4 Conditions to Legal or Covenant Defeasance
	 	 	38	 
	Section 8.5 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions
	 	 	40	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 8.6 Repayment to Company
	 	 	40	 
	Section 8.7 Reinstatement
	 	 	41	 
	 
	 	 	 	 
	ARTICLE IX. AMENDMENTS AND WAIVERS
	 	 	41	 
	 
	 	 	 	 
	Section 9.1 Without Consent of Holders
	 	 	41	 
	Section 9.2 With Consent of Holders
	 	 	42	 
	Section 9.3 Limitations
	 	 	43	 
	Section 9.4 Compliance with Trust Indenture Act
	 	 	43	 
	Section 9.5 Revocation and Effect of Consents
	 	 	44	 
	Section 9.6 Notation on or Exchange of Securities
	 	 	44	 
	Section 9.7 Trustee Protected
	 	 	44	 
	 
	 	 	 	 
	ARTICLE X. GUARANTEES
	 	 	45	 
	 
	 	 	 	 
	Section 10.1 Agreement to Guarantee
	 	 	45	 
	Section 10.2 Execution and Delivery of Subsidiary Guarantees
	 	 	45	 
	Section 10.3 Guarantors May Consolidate, Etc. on Certain Terms
	 	 	46	 
	Section 10.4 Releases
	 	 	47	 
	 
	 	 	 	 
	ARTICLE XI. SATISFACTION AND DISCHARGE
	 	 	48	 
	 
	 	 	 	 
	Section 11.1 Satisfaction and Discharge
	 	 	48	 
	Section 11.2 Application of Trust Money
	 	 	49	 
	 
	 	 	 	 
	ARTICLE XII. MISCELLANEOUS
	 	 	49	 
	 
	 	 	 	 
	Section 12.1 Trust Indenture Act Controls
	 	 	49	 
	Section 12.2 Notices
	 	 	49	 
	Section 12.3 Communication by Holders with Other Holders
	 	 	51	 
	Section 12.4 Certificate and Opinion as to Conditions Precedent
	 	 	51	 
	Section 12.5 Statements Required in Certificate or Opinion
	 	 	51	 
	Section 12.6 Rules by Trustee and Agents
	 	 	51	 
	Section 12.7 Legal Holidays
	 	 	52	 
	Section 12.8 No Personal Liability of Directors, Officers, Employees and
Stockholders
	 	 	52	 
	Section 12.9 Counterparts
	 	 	52	 
	Section 12.10 Governing Law; Waiver of Trial by Jury
	 	 	52	 
	Section 12.11 No Adverse Interpretation of Other Agreements
	 	 	52	 
	Section 12.12 Successors
	 	 	52	 
	Section 12.13 Severability
	 	 	53	 
	Section 12.14 Counterpart Originals
	 	 	53	 
	Section 12.15 Table of Contents, Headings, Etc.
	 	 	53	 
	Section 12.16 Securities in a Foreign Currency
	 	 	53	 
	Section 12.17 Force Majeure
	 	 	53	 
	 
	 	 	 	 
	ARTICLE XIII. SINKING FUNDS
	 	 	54	 
	 
	 	 	 	 
	Section 13.1 Applicability of Article
	 	 	54	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 13.2 Satisfaction of Sinking Fund Payments with Securities
	 	 	54	 
	Section 13.3 Redemption of Securities for Sinking Fund
	 	 	55	 






iv









 





L-3 COMMUNICATIONS CORPORATION




Reconciliation and tie between Trust Indenture Act of 1939 and



Indenture, dated as of [                    ], 2010



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






 




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



v









 





          Indenture dated as of [                    ], 2010 among L-3 Communications Corporation, a Delaware
corporation (“Company”), the guarantors listed on the signature pages hereto and The Bank of New
York Mellon Trust Company, N.A., as trustee (“Trustee”).




          Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders as defined below of the Securities (or applicable Series thereof) issued under this
Indenture.




ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE




          Section 1.1 Definitions.




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




          “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling”, “controlled by” and “under common control with”), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control.




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




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




          “Attributable Debt” in respect of a Sale and Leaseback Transaction means, at any time of
determination, the present value at that time of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such Sale and Leaseback Transaction
including any period for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value will be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.




          “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for the relief
of debtors.



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




 









 







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




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




          “Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal
holiday in The City of New York on which banking institutions are authorized or required by law,
regulation or executive order to close.




          “Capital Stock” means (i) in the case of a corporation, corporate stock, (ii) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.




          “Company” means the party named as such above until a successor replaces it pursuant to
Article V hereof and thereafter means the successor.




          “Company Order” means a written order signed in the name of the Company by two Officers of the
Company.




          “Consolidated Net Tangible Assets” of any Person as of any date means the total assets of such
Person and its Subsidiaries as of the most recent fiscal quarter end for which a consolidated
balance sheet of such Person and its Subsidiaries is available as of that date, minus all current
liabilities of such Person and its Subsidiaries reflected on such balance sheet and minus total
goodwill and other intangible assets of such Person and its Subsidiaries reflected on such balance
sheet, all calculated on a consolidated basis in accordance with GAAP.




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




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




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




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




2









 





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




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




          “Domestic Subsidiary” means a Subsidiary of the Company (other than an Immaterial Subsidiary)
that is organized or existing under the laws of the United States, any state thereof, the District
of Columbia or any territory thereof.




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




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




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




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




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




          “Guarantee” means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness.




          “Guarantor” means each Person listed on the signature page hereto and each Domestic Subsidiary
of the Company that executes a Guarantee, either on the date hereof or at any future time in
accordance with the terms of this Indenture and their respective successors and assigns; provided,
that upon the release and discharge of such Person from its guarantee in accordance with this
Indenture, such Person shall cease to be a Guarantor.




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




          “Immaterial Subsidiary” means, as of any date, any Subsidiary whose total assets, as of that
date, are less than $20.0 million and whose total revenues for the most recent 12-month period do
not exceed $20.0 million.




3









 





          “Indebtedness” means, with respect to any Person, obligations of such Person for borrowed
money (including, without limitation, indebtedness for borrowed money evidenced by notes, bonds,
debentures or similar instruments). For the avoidance of doubt, bankers’ acceptances and
obligations of a Person under currency exchange or interest rate swap agreements (or other
agreements or arrangements designed to protect such Person against fluctuations in currency
exchange rates or interest rates) are not Indebtedness.




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




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




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




          “Lien” means any mortgage, lien, pledge, charge, security interest or other encumbrance of any
kind, whether or not filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statute) of any jurisdiction.




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




          “Obligations” means any principal, premium, interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization, whether or not a claim for
post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses,
indemnifications, reimbursement obligations, damages, guarantees and other liabilities or amounts
payable under the documentation governing any Indebtedness or in respect thereto.




          “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any
Vice-President of such Person.




          “Officers’ Certificate” means a certificate signed by two Officers, one of whom (in the case
of an Officers’ Certificate delivered under Section 4.5 hereof) must be the Company’s principal
executive officer, the principal financial officer, the principal accounting officer or the
treasurer.




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




4









 






     “Permitted Liens” means, with respect to each Series of Securities:




     (a) Liens securing Indebtedness of the Company or any of its Subsidiaries, which
Indebtedness exists on the applicable Issue Date;




     (b) Liens securing Indebtedness of any Person that (i) is acquired by the Company or
any of its Subsidiaries after the applicable Issue Date, (ii) is merged or amalgamated with
or into the Company or any of its Subsidiaries after the applicable Issue Date or (iii)
becomes consolidated in the financial statements of the Company or any of its Subsidiaries
after the applicable Issue Date in accordance with GAAP; provided, however, that in each
case contemplated by this clause (b), such Indebtedness was not incurred in contemplation of
such acquisition, merger, amalgamation or consolidation and is only secured by Liens on the
Capital Stock and assets of, the Person (and Subsidiaries of the Person) acquired by, or
merged or amalgamated with or into, or consolidated in the financial statements of, the
Company or any of its Subsidiaries;




     (c) Liens securing Indebtedness (including assumed Indebtedness) of the Company or any
of its Subsidiaries incurred to finance (whether prior to or within 365 days after) the
acquisition, construction or improvement of assets (whether through the direct purchase of
assets or through the purchase of the Capital Stock of any Person owning such assets or
through an acquisition of any such Person by merger); provided, however, that such
Indebtedness is only secured by Liens on the Capital Stock and assets acquired, constructed
or improved in connection with such financing (including the Capital Stock and assets of any
Subsidiary of any such acquired Person);




     (d) Liens to secure any extension, renewal, refinancing or refunding (or successive
extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness
secured by Liens referred to in clauses (a)-(c) above or clause (j) below or Liens created
in connection with any amendment, consent or waiver relating to such Indebtedness, so long
as such Lien is limited to all or part of substantially the same property which secured the
Lien extended, renewed or replaced, the amount of Indebtedness secured is not increased
(other than by the amount equal to any costs and expenses (including any premiums, fees or
penalties) incurred in connection with any extension, renewal, refinancing or refunding) and
the Indebtedness so secured does not exceed the fair market value (as determined by the
Company’s Board of Directors) of the assets subject to such Liens at the time of such
extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the
case may be;




     (e) Liens to secure intercompany Indebtedness of the Company or any of its Subsidiaries
to the Company or any of its Subsidiaries;




     (f) Liens to secure the performance of statutory obligations, insurance, surety or
appeal bonds, workers compensation obligations, performance bonds or other
obligations of a like nature incurred in the ordinary course of business (including
Liens to secure letters of credit and reimbursement obligations with respect thereto issued
to assure payment of such obligations);



5









 






     (g) Liens created for the benefit of (or to secure) the Securities of such Series (or
the Guarantees);




     (h) Liens in favor of the Trustee granted in accordance with this Indenture;




     (i) Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made
therefor; and




     (j) other Liens, in addition to those permitted in clauses (a) through (i) above,
securing Indebtedness having an aggregate principal amount (including all Indebtedness
incurred pursuant to clause (d) above to renew, refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (j)), measured as of the date of
the incurrence of any such Indebtedness (giving pro forma effect to the application of the
proceeds therefrom and any transaction in connection with which such Indebtedness is being
incurred), taken together with the amount of all Attributable Debt of the Company and its
Subsidiaries at that time outstanding relating to Sale and Leaseback Transactions permitted
under Section 4.9, not to exceed the greater of (a) 15% of the Company’s Consolidated Net
Tangible Assets measured as of the date of the incurrence of any such Indebtedness (giving
pro forma effect to the application of the proceeds therefrom and any transaction in
connection with which such Indebtedness is being incurred) or (b) $1.5 billion.



     For purposes of clause (j) of this definition of Permitted Liens, (i) with respect to any
revolving credit facility secured by a Lien, the full amount of Indebtedness that may be borrowed
thereunder will be deemed to be incurred at the time any revolving credit commitment thereunder is
first extended or increased and will not be deemed to be incurred when such revolving credit
facility is drawn upon and (ii) if a Lien of the Company or any of its Wholly Owned Domestic
Subsidiaries is granted to secure Indebtedness that was previously unsecured, such Indebtedness
will be deemed to be incurred as of the date such Indebtedness is secured.



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




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




          “Principal Property” means any building, structure or other facility located within the United
States (other than its territories and possessions) and owned by the Company or any Wholly Owned
Domestic Subsidiary, the book value of which is not less than 0.5% of the Company’s Consolidated
Net Tangible Assets. For purposes of this definition, book value will
be measured at the time the relevant Lien is being created or, in the case of any Lien
incurred pursuant to clause (j) of the definition of “Permitted Liens,” at the time the relevant
secured Indebtedness is deemed to be incurred.




6









 





          “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office who shall have direct responsibility
for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with a particular
subject.




          “SEC” means the Securities and Exchange Commission or any successor agency.




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




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




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




          “Significant Subsidiary” means any Subsidiary which is a “significant subsidiary” within the
meaning of Rule 405 under the Securities Act.




          “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.




          “Subsidiary” means, with respect to any Person, (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof);
and (ii) any partnership (A) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (B) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination thereof).




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




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




          “Wholly Owned Domestic Subsidiary” means, with respect to any Person, any Domestic Subsidiary
of such Person, the Capital Stock of which is 100% owned and controlled,




7









 




directly or indirectly
through one or more other Wholly Owned Domestic Subsidiaries, by such Person.




          Section 1.2 Other Definitions.




	 	 	 	 	 
	 	 	DEFINED IN
	TERM	 	SECTION
	“Event of Default”
	 	 	6.1	 
	“Legal Holiday”
	 	 	12.7	 
	“mandatory sinking fund payment”
	 	 	13.1	 
	“Market Exchange Rate”
	 	 	12.16	 
	“optional sinking fund payment”
	 	 	13.1	 
	“Paying Agent”
	 	 	2.4	 
	“Registrar”
	 	 	2.4	 
	“Sale and Leaseback Transaction”
	 	 	4.9	 
	“Service Agent”
	 	 	2.4	 






          Section 1.3 Incorporation by Reference of Trust Indenture Act.




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




          “Commission” means the SEC.




          “indenture securities” means the Securities.




          “indenture security holder” means a Holder.




          “indenture to be qualified” means this Indenture.




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




          “obligor” on the indenture securities means the Company, any successor obligor upon the
Securities or a Guarantor.




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




          Section 1.4 Rules of Construction.




          Unless the context otherwise requires:




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




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




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




          (d) “or” is not exclusive;




          (e) “will” shall be interpreted to express a command;




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




          (g) provisions apply to successive events and transactions; and




          (h) references to sections of or rules under the Securities Act will be deemed to include
substitute, replacement of successor sections or rules adopted by the SEC from time to time.




ARTICLE II.

THE SECURITIES




          Section 2.1 Issuable in Series.




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




          Section 2.2 Establishment of Terms of Series of Securities.




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





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



9









 






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




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




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




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




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




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




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




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




     (j) if other than denominations of $2,000 and any integral multiple of $1,000 in excess
thereof, the denominations in which the Securities of the Series shall be issuable;



10









 






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




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




     (m) the Trustee for the series of Securities, if other than the Trustee named on the
first page hereof or its Successors;




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




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




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




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




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




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




     (t) the securities exchange(s) on which the Securities of the Series will be listed, if
any;




     (u) additions or deletions to or changes in the provisions relating to covenant
defeasance and legal defeasance;




     (v) additions or deletions to or changes in the provisions relating to satisfaction and
discharge of the indenture;



11









 






     (w) additions or deletions to or changes in the provisions relating to the modification
of the indenture both with and without the consent of holders of Securities of the Series
issued under the indenture; and




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



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




          Section 2.3 Execution and Authentication.




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




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




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




          The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or
Officers’ Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication unless otherwise provided by a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.




          The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section
2.2, except as provided in Section 2.9.




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




12









 




Securities within that Series, (b) an Officers’ Certificate complying with Section 12.4, and (c)
an Opinion of Counsel complying with Section 12.4.




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




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




          Section 2.4 Registrar and Paying Agent.




          The Company shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities
of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of
such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where
notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to each
Series of Securities and to their transfer and exchange. The Company will give prompt written
notice to the Trustee of the name and address, and any change in the name or address, of each
Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any
such required Registrar, Paying Agent or Service Agent or
shall fail to furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.




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




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




13









 





          Section 2.5 Paying Agent to Hold Money in Trust.




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




          Section 2.6 Holder Lists.




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




          Section 2.7 Transfer and Exchange.




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




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




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





14









 








          Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities.




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




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




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




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




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




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




          Section 2.9 Outstanding Securities.




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




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




          If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of
the Company) holds as of 12:00 p.m. Eastern Time on the date of Maturity of




15









 




Securities of a Series
money sufficient to pay such Securities payable on that date, then on and after that date such
Securities of the Series cease to be outstanding and interest on them ceases to accrue.




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




          In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.




          Section 2.10 Treasury Securities.




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




          Section 2.11 Temporary Securities.




          Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee upon request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities
shall have the same rights under this Indenture as the definitive Securities.




          Section 2.12 Cancellation.




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




          Section 2.13 Defaulted Interest.




          If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the




16









 




defaulted
interest, to the Persons who are Holders of the Series on a subsequent special record date. The
Company shall fix the record date and payment date. At least 10 days before the record date, the
Company shall mail to the Trustee and to each Holder of the Series a notice that states the record
date, the payment date and the amount of interest to be paid. The Company may pay defaulted
interest in any other lawful manner.




          Section 2.14 Special Record Dates.




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




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




          Section 2.15 Global Securities.




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



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



17









 




direct in writing in an aggregate
principal amount equal to the principal amount of the Global Security with like tenor and terms.




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




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



          “Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”), New York, New York, to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is registered in the name
of Cede & Co. or such other name as may be requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest herein.”




          “Transfer of this Global Security shall be limited to transfers in whole, but not in part, to
DTC, to nominees of DTC or to a successor thereof or such successor’s nominee and limited to
transfers made in accordance with the restrictions set forth in the Indenture referred to herein.”




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



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



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



          Section 2.16 CUSIP Numbers.




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




18









 




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




          Section 2.17 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 may treat the Person in whose name such Security is
registered in the Register as the owner of such Security for the purpose of receiving payment of
principal of and (subject to the record date provisions thereof) interest on and any Additional
Amounts with respect to, such Security and for all other purposes whatsoever, whether or not any
payment with respect to such Security shall be overdue, and none of the Company, the Trustee or any
agent of the Company or the Trustee shall be affected by notice to the contrary. The Company, the
Trustee and any agent of the Company or the Trustee may treat the bearer of a Bearer Security as
the absolute owner thereof for the purpose of receiving payment of principal of and interest on and
any Additional Amounts with respect to, such Security and for all other purposes whatsoever,
whether or not any payment with respect to such Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.




          No holder of any beneficial interest in any Global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such Global Security, and such
Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.




ARTICLE III.

REDEMPTION




          Section 3.1 Notice to Trustee.




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




          Section 3.2 Selection of Securities to be Redeemed.




          Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, if less than all the Securities of a Series are to




19









 




be
redeemed, the Trustee shall select the Securities of the Series to be redeemed by such method as
the Trustee shall deem fair and appropriate.




          In the event of partial redemption, the Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may select for redemption
a portion of the principal amount of any Security of such Series; provided that the unredeemed
portion of the principal amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security. Provisions of this
Indenture that apply to Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.




          Section 3.3 Notice of Redemption.




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




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





     (a) the redemption date;




     (b) the redemption price (or if not then ascertainable, the manner of calculation
thereof);




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




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




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




     (f) the CUSIP number, if any; and




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



          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense as long as the Trustee is given at least 5
Business Days prior notice of the requested date of the giving of such notice (or such shorter notice as may be acceptable to the Trustee).




20









 





          Section 3.4 Effect of Notice of Redemption.




          Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. A notice of redemption at the option of the Company may not be conditional. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to
the redemption date; provided that, unless otherwise specified with respect to such Securities
pursuant to Section 2.2 hereof, installments of interest whose Stated Maturity is on or prior to
the redemption date shall be payable to the Holders of such Securities (or one or more predecessor
Securities) registered at the close of business on the relevant record date therefor according to
their terms and the terms of this Indenture.




          Section 3.5 Deposit of Redemption Price.




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




          Section 3.6 Securities Redeemed in Part.




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




ARTICLE IV.

COVENANTS




          Section 4.1 Payment of Principal and Interest.




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




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




          Section 4.2 Additional Amounts.




          If any Securities of a Series provide for the payment of Additional Amounts, the Company
agrees to pay to the Holder of any such Security Additional Amounts as provided in or




21









 




pursuant to
this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of or interest on, or in respect of, any Security of any Series, such
mention shall be deemed to include mention of the payment of Additional Amounts provided by the
terms of such Series established hereby or pursuant hereto to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and
express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall
not be construed as excluding Additional Amounts in those provisions hereof where such express
mention is not made.




          Section 4.3 Maintenance of Office or Agency.




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




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




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




          Section 4.4 SEC Reports.




          Unless otherwise specified with respect to Securities of a particular Series pursuant to
Section 2.2, the Company will, if and to the extent required under the TIA:





     (a) file with the Trustee, within 15 days after the Company is required to file the
same with the SEC, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may from time to time
by rules and regulations prescribe) which the Company may be required to file with the SEC
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such sections, then
to file with the Trustee and the SEC, in accordance with rules and regulations prescribed
from time to time by the SEC, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section



22









 







13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;




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




     (c) transmit by mail to the Holders of Securities in the manner and to the extent
provided in Section 7.6 within 30 days after the required filing thereof with the Trustee,
such summaries of any information, documents and reports required to be filed by the SEC
pursuant to subsections (a) and (b) of this Section as may be required to be transmitted to
such Holders by rules and regulations prescribed from time to time by
the SEC;




     (d) The delivery of such reports, information and documents to the Trustee pursuant to
this Section 4.4 is for informational purposes only and the Trustee’s receipt of such shall
not constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates). In addition, any reports, information and documents referred to in this
Section 4.4 shall be deemed to be delivered to the Trustee and the Holders at the
time such reports, information and documents are publicly filed with the SEC via the
EDGAR filing system (or any successor system).



          Section 4.5 Compliance Certificate.




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




          (b) So long as any Series of Securities is outstanding, the Company will deliver to the
Trustee with respect to such Series, promptly upon any Officer becoming aware of




23









 




any Default or
Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.




          Section 4.6 Taxes.




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




          Section 4.7 Stay, Extension and Usury Laws.




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




          Section 4.8 Corporate Existence.




          Subject to Article V hereof, the Company covenants and agrees for the benefit of the Holders
of each Series of Securities that it shall do or cause to be done all things necessary to preserve
and keep in full force and effect its legal existence and rights and franchises; provided, however,
that the foregoing shall not obligate the Company to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in the conduct of its
business and that the loss thereof is not adverse in any material respect to any Holder.




          Section 4.9 Sale and Leaseback Transactions.




          Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, the Company covenants and agrees for the benefit of the
Holders of each Series of Securities that it will not, and will not permit any of its Subsidiaries
to, enter into any arrangement with any other Person pursuant to which the Company or any of its
Subsidiaries leases any property that has been or is to be sold or transferred by the Company or
the Subsidiary to such other Person (a “Sale and Leaseback Transaction”), except that a Sale and
Leaseback Transaction is permitted if the Company or such Subsidiary would be entitled to incur
Indebtedness secured by a Lien on the property to be leased (without equally and ratably securing
the Securities of any Series) in an aggregate principal amount equal to the Attributable Debt with
respect to such Sale and Leaseback Transaction.




24









 





          In addition, the following Sale and Leaseback Transactions are not subject to the limitation
in the immediately preceding paragraph and the provisions described in Section 4.10:




          (a) temporary leases for a term, including renewals at the option of the lessee, of not more
than three years;




          (b) leases between only the Company and a Subsidiary of the Company or only between
Subsidiaries of the Company;




          (c) leases where the proceeds from the sale of the subject property are at least equal to the
fair market value (as determined in good faith by the Company) of the subject property and the
Company applies an amount equal to the net proceeds of the sale to the retirement of long-term
Indebtedness or to the purchase of other property or equipment used or useful in its business,
within 270 days of the effective date of such sale; provided that in lieu of applying such amount
to the retirement of long-term Indebtedness, the Company may deliver Securities or other debt
securities to the applicable trustee for cancellation, such Securities or other debt securities to
be credited at the cost thereof to the Company; and




          (d) leases of property executed by the time of, or within 270 days after the latest of, the
acquisition, the completion of construction or improvement, or the commencement of commercial
operation, of the subject property.




          Section 4.10 Liens.




          Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, the Company covenants and agrees for the benefit of the
Holders of each Series of Securities that it shall not, and shall not permit any of its Wholly
Owned Domestic Subsidiaries to, create, incur, assume or permit to exist any Lien (except Permitted
Liens) on (1) any Principal Property or (2) the Capital Stock of any
Subsidiary, in each case to secure Indebtedness of the Company, any Subsidiary of the Company or
any other Person, unless the Securities of each Series are secured, equally and ratably with such
other Indebtedness (or on a senior basis if the Obligations so secured are subordinated
Indebtedness), for so long as such other Indebtedness is so secured. Any Lien that is granted to
secure the Securities of any Series pursuant to this Section 4.10 shall be automatically released
and discharged at the same time as the release of the Lien that gave rise to the obligation to
secure the Securities of such Series pursuant to this Section 4.10.




          Section 4.11 Future Subsidiary Guarantees.




          (a) Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, the Company covenants and agrees for the benefit of the
Holders of each Series of Securities that if the Company or any of its Subsidiaries acquires or
creates a Domestic Subsidiary after the date hereof, including if a Subsidiary that is not a
Domestic Subsidiary becomes a Domestic Subsidiary after the date hereof, and such Domestic
Subsidiary guarantees any other Indebtedness of the Company, then such Domestic Subsidiary will
become a Guarantor and will execute a supplemental indenture and deliver an Opinion of Counsel
satisfactory to the Trustee within thirty (30) Business Days of the date on




25









 




which it was acquired
or created. The obligations of each Guarantor under its Guarantee will be limited so as not to
constitute a fraudulent conveyance under applicable law.




          (b) Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, the Company covenants and agrees for the benefit of the
Holders of each Series of Securities that if any Guarantor that is released from its Guarantee
pursuant to Section 10.04 thereafter guarantees any Indebtedness of the Company (other than the
Securities), then that former Guarantor (to the extent it is a Domestic Subsidiary) shall again
guarantee the Securities on the terms and conditions set forth in this Indenture.




ARTICLE V.

SUCCESSORS




          Section 5.1 Merger, Consolidation, or Sale of Assets.




          The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it shall not, directly or indirectly consolidate or merge with or into (whether or
not the Company is the surviving entity), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one or more related
transactions, to another Person unless (i) the Company is the surviving or continuing corporation
or the Person formed by or surviving any such consolidation or merger (if other than the Company)
or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made
is a corporation, partnership, limited liability company, trust or other entity organized or
existing under the laws of the United States, any state thereof or the District of Columbia; (ii)
the Person formed by or surviving any such consolidation or merger (if other than the Company) or
the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has
been made (if other than the Company) assumes all the Obligations of the Company under the Securities and this Indenture pursuant to agreements reasonably
satisfactory to the Trustee; and (iii) immediately after such transaction no Default or Event of
Default exists.




          This Section 5.1 will not apply to:





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




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



          Section 5.2 Successor Person Substituted.




          In the case of any such consolidation, merger, sale, transfer or other conveyance in a
transaction in which there is a successor person, the successor person will succeed to, and be
substituted for, the Company under this Indenture and, subject to the terms of this Indenture, the
Company will be released from the obligation to pay principal and interest on the Securities and
all other Obligations under this Indenture.




26









 





          Section 5.3 Delivery of Officers’ Certificate and Opinion of Counsel




          The Company shall deliver to the Trustee an Officers’ Certificate and Opinion of Counsel
stating that any such consolidation, merger or sale complies with the conditions set forth in this
Article 5.




ARTICLE VI.

DEFAULTS AND REMEDIES




          Section 6.1 Events of Default.




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




          (a) the Company defaults in the payment when due of any interest on any Security of that
Series, and such default continues for a period of 30 days;




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




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




          (d) the Company fails to comply with any of the provisions of Section 5.1 hereof;




          (e) the Company fails to comply with any of its other agreements in this Indenture (other than
a covenant or warranty that has been included in this Indenture solely for the benefit of a Series
of Securities other than that Series), which default continues uncured for 90 days after written
notice is received by the Company and the Trustee from Holders of at least 25% in aggregate
principal amount of the Securities of such Series then outstanding;




          (f) a default occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or any of its Subsidiaries)
whether such Indebtedness or guarantee now exists, or is created after the applicable Issue Date,
which default relates to a payment at final maturity or results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal amount of such
Indebtedness, together with the principal amount of all other Indebtedness that is not paid at
final maturity or the maturity of which has been so accelerated, aggregates $100.0 million or more;




          (g) failure by the Company or any of its Subsidiaries to pay a final judgments aggregating in
excess of $100.0 million, which judgments are not paid, discharged or stayed for a period of 60
days;




27









 





          (h) the Company or any of its Significant Subsidiaries pursuant to or within the meaning of
Bankruptcy Law:





               (i) commences a voluntary case,




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




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




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




               (v) generally is not paying its debts as they become due;



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





               (i) is for relief against the Company or any of its Significant Subsidiaries in
an involuntary case;




               (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries
or for all or substantially all of the property of the Company or any of its
Significant Subsidiaries; or




               (iii) orders the liquidation of the Company or any of its Significant
Subsidiaries;


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




          (j) except as permitted herein, any Guarantee of a Significant Subsidiary shall be held in any
judicial proceeding to be unenforceable or invalid; and




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




          Section 6.2 Acceleration.




          If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing (other than an Event of Default referred to in Section 6.1(h) or (i)) then in
every such case the Trustee or the Holders of at least 25% in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be specified in the terms of
such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and
accrued and unpaid interest, if any, shall become immediately due and payable. If




28









 




an Event of
Default specified in Section 6.1(h) or (i) shall occur, the principal amount (or specified amount)
of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder.




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




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




          Section 6.3 Other Remedies.




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




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




          Section 6.4 Waiver of Past Defaults.




          Holders of not less than a majority in aggregate principal amount of the then outstanding
Securities of any Series by notice to the Trustee for such Securities may on behalf of the Holders
of all of such Securities waive an existing Default or Event of Default with respect to such
Securities and its consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, such Securities; provided, however,
that the Holders of a majority in aggregate principal amount of the then outstanding Securities of
any Series may rescind an acceleration of such Securities and its consequences, including any
related payment default that resulted from such acceleration. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.




          Section 6.5 Control by Majority.




          Holders of a majority in aggregate principal amount of the then outstanding Securities of any
Series may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee for such Securities or exercising any trust or power conferred on it.
However, the Trustee for any Series of Securities may refuse to follow




29









 




any direction that conflicts
with law or this Indenture that such Trustee determines may be unduly prejudicial to the rights of
other Holders of such Securities or that may involve the Trustee in personal liability.




          Section 6.6 Limitation on Suits.




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





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




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




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




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




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



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




          Section 6.7 Rights of Holders of Securities to Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
of any Series to receive payment of principal, premium, if any, and interest on such Securities, on
or after the respective due dates expressed in such Securities (including, if applicable, in
connection with an offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the consent of such
Holder.




          Section 6.8 Collection Suit by Trustee.




          If an Event of Default specified in Section 6.1(a), (b) or (c) hereof with respect to
Securities of any Series occurs and is continuing, the Trustee for such Securities is authorized to
recover judgment in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid on, such Securities
and interest on overdue principal and, to the extent lawful, interest and such further amount
as




30









 




shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents and counsel.




          Section 6.9 Trustee May File Proofs of Claim.




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




          Section 6.10 Priorities.




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




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




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




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




          Subject to Section 2.13 hereof, the Trustee may fix a record date and payment date for any
payment to Holders of Securities pursuant to this Section 6.10.




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          Section 6.11 Undertaking for Costs.




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




ARTICLE VII.

TRUSTEE




         Section 7.1 Duties of Trustee.



          (a) Subject to Section 7.2(i), if an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree
of care and skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.



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




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




               (ii) In the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the
requirements of this Indenture; however, in the case of any such Officers’ Certificates or
Opinions of Counsel which by any provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).



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





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




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




               (iii) The Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it with respect to Securities of any Series in good faith



32









 







in accordance with the direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Securities of such
Series.



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




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




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




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




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




          Section 7.2 Rights of Trustee.




          (a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting upon
any document believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the document.




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




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




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




          (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 of




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Securities unless such
Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or
direction.




          (f) The Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder without negligence and in good faith and in
reliance thereon.




          (g) 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.




          (h) The
Trustee shall not be deemed to have notice of any Default or Event of
Default (other than a payment default under Sections 6.1 (a),
(b), or (c) hereof) unless written notice of any
event which is in fact such a default is received by a Responsible
Officer of the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities generally or the Securities of a particular
Series and this Indenture.




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




          (j) 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.



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


          (l) In
the absence of a written agreement signed by the Trustee, the Trustee
shall not be liable for interest on any funds deposited with the
Trustee.


          Section 7.3 Individual Rights of Trustee.




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




          Section 7.4 Trustee’s Disclaimer.




          The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities
other than its authentication. The Trustee has no responsibility for
or liability in connection with any filing of financing statements or
perfection of any lien or security interest purported to be created
hereunder.




          Section 7.5 Notice of Defaults.




          If a Default or Event of Default occurs and is continuing with respect to the Securities of
any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Holder of the Securities of that Series and, if any Bearer Securities are outstanding, mail in
the manner provided by in TIA § 313(c), notice of a Default or Event of Default within 90 days
after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such
Default or Event of Default. Except in the case of a Default or Event of Default in payment of
principal of or interest on any Security of any Series, the Trustee may withhold the notice if and
so long as its corporate trust committee or a committee of its




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Responsible Officers in good faith
determines that withholding the notice is in the interests of Holders of that Series.




          Section 7.6 Reports by Trustee to Holders.




          Within 60 days after May 15 in the first year following the issuance of a Series of Securities
under this Indenture, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear on the register kept by the Registrar and, if any Bearer Securities are
outstanding, transmit by mail in accordance with TIA § 313(c), a brief report dated as of such May
15, in accordance with, and to the extent required under, TIA § 313(a).




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




          Section 7.7 Compensation and Indemnity.




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




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




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




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




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




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




          Section 7.8 Replacement of Trustee.




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




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




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




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




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




          (d) the Trustee becomes incapable of acting.




          If the Trustee resigns or is removed with respect to the Securities of a Series or if a
vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee with respect to the Securities of such Series. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities of such Series may appoint a successor Trustee with respect to the
Securities of such Series to replace the successor Trustee appointed by the Company.




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




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




36









 





          Section 7.9 Successor Trustee by Merger, etc.




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




          Section 7.10 Eligibility; Disqualification.




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




          Section 7.11 Preferential Collection of Claims Against Company.




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




ARTICLE VIII.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




          Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.




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




          Section 8.2 Legal Defeasance and Discharge.




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





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



37









 






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




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




               (4) this Article VIII.



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




          Section 8.3 Covenant Defeasance.




          Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section
8.3, the Company and each of the Guarantors, if any, will, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, be released from each of their or its obligations under
the covenants contained in Sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.9, 4.10, 4.11 and 5.1, Article X and
all covenants specified in a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with Section 2.2, with respect to the outstanding Securities of the
applicable Series on and after the date the conditions set forth in Section 8.4 hereof are
satisfied (hereinafter, “Covenant Defeasance”), and such Securities will thereafter be deemed not
“outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders
of such Securities (and the consequences of any thereof) in connection with such covenants, but
will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that
such Securities will not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Securities of such Series, the Company may
omit to comply with and will have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply will not constitute a Default
or an Event of Default under Section 6.1 hereof, but, except as specified above, the remainder of
this Indenture and such Securities will be unaffected thereby. In addition, upon the Company’s
exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(d) through (g) and
Sections 6.1(j) and (k) hereof will not constitute Events of Default.




          Section 8.4 Conditions to Legal or Covenant Defeasance.




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





               (1) the Company must irrevocably deposit with the Trustee for such Securities, in
trust, for the benefit of the Holders of such Securities, cash in U.S. dollars, non-callable
Government Securities or foreign government obligations, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized investment bank, appraisal firm, or firm of
independent public accountants, to pay the principal of, premium, if any, and



38









 







interest on,
the outstanding Securities of such Series on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Company must specify whether such
Securities are being defeased to such stated date for payment or to a particular redemption
date;




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




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




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




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




     (3) in the case of an election under Section 8.3 hereof, the Company must deliver to
the Trustee for such Securities an Opinion of Counsel confirming that the Holders of such
Securities will not recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;




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




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




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




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



39









 





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




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




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




          Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay
to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.4 hereof which, in the opinion of a
nationally recognized investment bank, appraisal firm or firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(1) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.




          Section 8.6 Repayment to Company.




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





40









 








               Section 8.7 Reinstatement.




               If, in connection with a Legal Defeasance or Covenant Defeasance, the Trustee or Paying Agent
is unable to apply any U.S. dollars or non-callable Government Securities in accordance with
Section 8.5, by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s and any applicable
Guarantors’ obligations under this Indenture and the applicable Securities and the guarantees will
be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.5; provided, however, that, if the Company makes any payment of principal of or
interest on any such Securities following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.




ARTICLE IX.

AMENDMENTS AND WAIVERS




               Section 9.1 Without Consent of Holders.




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





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




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




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




     (d) to add any additional Events of Default with respect to all or any series of
Securities Outstanding hereunder;




     (e) to secure the Securities pursuant to the requirements of any covenant on liens in
respect of such series of Securities or otherwise and to provide the
terms and conditions for the release or substitution of the security;




     (f) to change or eliminate any of the provisions of this Indenture, or to add any new
provision to this Indenture, in respect of one or more series of Securities; provided,
however, that any such change, elimination or addition (A) shall neither (i) apply to any
Security outstanding on the date of such indenture supplemental hereto nor (ii) modify the
rights of the Holder of any such Security with respect to such provision in effect prior to
the date of such indenture supplemental hereto or (B) shall become effective only when no
Security of such series remains outstanding;




     (g) to make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the Holders’ rights hereunder in any
material respect;



41









 






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




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




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




     (k) to add an additional Guarantor or obligor under this Indenture; or




     (l) to conform any provision of this Indenture, the Securities of any Series or any
related guarantees or security documents to the description of such Securities contained in
the Company’s prospectus, prospectus supplement, offering memorandum or similar document
with respect to the offering of the Securities of such Series to the extent that such
description was intended to be a verbatim recitation of a provision in the Indenture, such
Securities or any related guarantees or security documents.



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




              Section 9.2 With Consent of Holders.




              Subject
to Section 9.3, the Company, the Guarantors and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in principal amount of the
outstanding Securities of each Series affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series),
for the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of each such Series. Except as provided in Section 6.4, the Holders of at
least a majority in principal amount of the outstanding Securities of each Series by notice to the
Trustee (including consents obtained in connection with a tender offer or exchange offer for the
Securities of such Series) may waive compliance by the Company and
the Guarantors with any provision of this Indenture
or the Securities with respect to such Series.




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




42









 




indenture
directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but will not be obligated to, enter into such
amended or supplemental Indenture.




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




          Section 9.3 Limitations.




          Without the consent of each Holder affected, an amendment, supplement or waiver may not (with
respect to any Securities held by a non-consenting Holder):





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




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




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




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




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




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




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




          (h) waive a redemption payment with respect to any Security (other than with respect
to any provision relating to covenants that require the Company to repurchase, at the option of Holders, a series of Securities in connection with a “change of control” or other triggering event).




          Section 9.4 Compliance with Trust Indenture Act.



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




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          Section 9.5 Revocation and Effect of Consents.




          (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of
a Security is a continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder’s Security, even if
notation of the consent is not made on any Security. However, any such Holder or subsequent Holder
subject to Section 9.5(d) may revoke the consent as to his Security or portion of a Security if the
Trustee receives the notice of revocation before the date the amendment, supplement or waiver
becomes effective.




          (b) An amendment, supplement or waiver effective in accordance with its terms will thereafter
bind every Holder.




          (c) For purposes of this Indenture, the consent of the Holder of a Global Security shall be
deemed to include any consent delivered by any member of, or participant in, any Depository or DTC,
any nominees thereof and their respective successors and assigns, or such other depository
institution hereinafter appointed by the Company (“Depository Entity”) by electronic means in
accordance with the Automated Tender Offer Procedures system or other customary procedures of, and
pursuant to authorization by, such Depository Entity.




          (d) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date. The Company shall inform the Trustee of
the fixed record date, if applicable.




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




          Section 9.6 Notation on or Exchange of Securities.




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




          Section 9.7 Trustee Protected.




          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be provided with, and (subject to Section 7.1) shall be fully




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protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture.




ARTICLE X.

GUARANTEES




          Section 10.1 Agreement to Guarantee.




          Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, each of the Guarantors hereby agrees as follows:




          (a) Such Guarantor, jointly and severally with all other Guarantors, unconditionally
guarantees to the Holders of each Series of Securities authenticated and delivered by the Trustee
and to the Trustee its successors and assigns, regardless of the validity and enforceability of
this Indenture, the Securities of such Series or the Obligations of the Company under this
Indenture or the Securities of such Series, that:





               (i) the principal of, premium and interest on the Securities of such Series will be
promptly paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of, premium and interest, on the Securities
of such Series, to the extent lawful, and all other Obligations of the Company to the
Holders or the Trustee thereunder or under this Indenture will be promptly paid in full, all
in accordance with the terms thereof; and




               (ii) in case of any extension of time for payment or renewal of any Securities of such
Series or any of such other Obligations, that the same will be promptly paid in full when
due in accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



          (b) Notwithstanding the foregoing, in the event that this Guarantee would constitute or result
in a violation of any applicable fraudulent conveyance or similar law of any relevant jurisdiction,
the liability of the Guarantors under this Indenture shall be reduced to the maximum amount
permissible under such fraudulent conveyance or similar law.




          Section 10.2 Execution and Delivery of Subsidiary Guarantees.




          (a) The Guarantee of a Guarantor shall be evidenced by the execution and delivery of this
Indenture by an Officer of such Guarantor, a Board Resolution, a supplemental indenture or an
Officers’ Certificate.




          (b) If an Officer whose signature is on this Indenture no longer holds that office at the time
the Trustee authenticates any Security pursuant to this Indenture, the Guarantee shall be valid
nevertheless.




          (c) The delivery of any Security by the Trustee, after the authentication thereof under this
Indenture, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of
each Guarantor.




45









 





          (d) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional,
regardless of the validity, regularity or enforceability of the Securities or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Securities
with respect to any provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor.




          (e) Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever and covenants that
its Guarantee made pursuant to this Indenture will not be discharged except by complete performance
of the obligations contained in the Securities of each Series and this Indenture.




          (f) If any Holder or the Trustee is required by any court or otherwise to return to the
Company or any Guarantor, or any Custodian, Trustee, liquidator or other similar official acting in
relation to either the Company or such Guarantor, any amount paid by either to the Trustee or such
Holder, the Guarantee made pursuant to this Indenture, to the extent theretofore discharged, shall
be reinstated in full force and effect.




          (g) Each Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Guarantor further agrees that, as between such Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand:





               (i) the maturity of the Obligations guaranteed hereby may be accelerated as provided in
Article 6 of this Indenture for the purposes of the Guarantee made pursuant to this
Indenture, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby; and




               (ii) in the event of any declaration of acceleration of such Obligations as provided in
Article 6 of this Indenture, such Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purpose of the Guarantee made
pursuant to this Indenture.



          (h) Each Guarantor shall have the right to seek contribution from any other non-paying
Guarantor so long as the exercise of such right does not impair the rights of the Holders or the
Trustee under the Guarantee made pursuant to this Indenture.




          Section 10.3 Guarantors May Consolidate, Etc. on Certain Terms.




          (a) Except as set forth in Article 5 of this Indenture, nothing contained in this Indenture or
in the Securities of any Series shall prevent any consolidation or merger of any Guarantor with or
into the Company or any other Guarantor or shall prevent any transfer, sale or conveyance of the
property of any Guarantor as an entirety or substantially as an entirety, to the Company or any
other Guarantor.




46









 












          
(b) Except as set forth in Article 5 of this Indenture, nothing contained in this Indenture or
in the Securities of any Series shall prevent any consolidation or merger of any Guarantor with or
into any entity other than the Company or any other Guarantor (in each case, whether or not
affiliated with the Guarantor), or successive consolidations or mergers in which a Guarantor or its
successor or successors shall be a party or parties, or shall prevent any sale or conveyance of the
property of any Guarantor as an entirety or substantially as an entirety, to any entity other than
the Company or any other Guarantor (in each case, whether or not affiliated with the Guarantor)
authorized to acquire and operate the same; provided, however, that no Guarantor may consolidate
with or merge with or into (whether or not such Guarantor is the surviving Person) another Person
(except the Company or another Guarantor) unless: (i) subject to the provisions of Section 10.4(c),
the Person formed by or surviving any such consolidation or merger (if other than such Guarantor)
assumes all the obligations of such Guarantor under the Securities of each Series and this
Indenture pursuant to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee; and (ii) immediately after giving effect to such transaction, no Default or Event of
Default exists.





          (c) In case of any consolidation, merger, sale or conveyance in which the successor entity
assumes all the obligations of a Guarantor under the Securities of each Series and this Indenture
pursuant to the proviso to Section 10.3(b), such successor entity shall succeed to and be
substituted for such Guarantor with the same effect as if it had been named herein, or in the Board
Resolution, the supplemental indenture or an Officers’ Certificate, as applicable, as one of the
Guarantors. Such successor entity thereupon may cause to be signed any or all of the Guarantees to
be endorsed upon the Securities of each Series issuable under this Indenture which theretofore
shall not have been signed by the Company and delivered to the Trustee. All the Guarantees so
issued shall in all respects have the same legal rank and benefit under this Indenture as the
Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as
though all of such Guarantees had been issued at the date of the execution hereof.




          Section 10.4 Releases.




          (a) Upon
defeasance or the release of all guarantees by a Guarantor under all the
outstanding Indebtedness of the Company (other than the Securities) that is guaranteed by that
Guarantor, the Guarantee of that Guarantor will automatically and unconditionally be released and
discharged, without any further action required by such Guarantor or the Trustee.


          (b) The Guarantee of any Guarantor shall automatically and unconditionally be released and
discharged, without any further action required by such Guarantor or the Trustee, if at any time
such Guarantor is no longer a Domestic Subsidiary.




          (c) In the event of a sale or other disposition of all of the assets of any Guarantor, by way
of merger, consolidation or otherwise, or a sale or other disposition of stock of any Guarantor
such that the Guarantor is no longer a Subsidiary of the Company, then such Guarantor (in the event
of a sale or other disposition, by way of such a merger, consolidation or otherwise) or the entity
acquiring the property (in the event of a sale or other disposition of all of the assets of such
Guarantor) shall be automatically and unconditionally released and relieved of




47









 




any obligations
under its Guarantee, without any actions required on the part of the Guarantor or Trustee.




ARTICLE XI.

SATISFACTION AND DISCHARGE




          Section 11.1 Satisfaction and Discharge.




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




          (a) either:





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




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



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




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




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




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




          Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (ii) of clause (a) of this Section 11.1, the provisions of
Sections 11.2 and 8.6 hereof will survive. In addition, nothing in this Section 11.1




48









 




will be deemed
to discharge those provisions of Section 7.7 hereof, that, by their terms, survive the satisfaction
and discharge of this Indenture.




          Section 11.2 Application of Trust Money.




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




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




ARTICLE XII.

MISCELLANEOUS




          Section 12.1 Trust Indenture Act Controls.




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




          Section 12.2 Notices.




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



          if
to the Company or the Guarantors:



          L-3 Communications Corporation

          600 Third Avenue, 34th Floor,

          New York, New York 10016

          Attention: Vice President-Chief Financial Officer (Fax: 212-805-5264)




49









 







          With a copy to:



          Simpson Thacher & Bartlett LLP

          425 Lexington Avenue

          New York, New York 10017

          Attention: Avrohom J. Kess (Fax: 212-455-2502)



          If to the Trustee:



          The
Bank of New York Mellon Trust Company, N.A.

          525
William Penn Place, 38th Floor

          Pittsburgh,
PA 15259

          Attention:
Corporate Trust Administration (Fax: 412-234-7535)




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




          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.




          All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day delivery.




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




          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.




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




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




          Where the Indenture provides for notice of any event to a Holder of a Global Security, such
notice shall be sufficiently given if given to the Depository for such Global




50









 




Security (or its
designee), pursuant to the applicable procedures of the Depository, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the giving of such
notice.




          Section 12.3 Communication by Holders with Other Holders.




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




          Section 12.4 Certificate and Opinion as to Conditions Precedent.




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





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




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



          Section 12.5 Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to Section 4.4 hereof and TIA §
314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:





     (a) a statement that the person making such certificate or opinion has read such
covenant or condition;




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




     (c) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and




     (d) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.



          Section 12.6 Rules by Trustee and Agents.




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




51









 





          Section 12.7 Legal Holidays.




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




          Section 12.8 No Personal Liability of Directors, Officers, Employees and Stockholders.




          No director, officer, employee, incorporator or stockholder of the Company or any Subsidiary
of the Company, as such, shall have any liability for any obligations of the Company or any
Subsidiary of the Company under the Securities of any Series or the Guarantees and this Indenture
or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Securities of any Series, by accepting a Security of such Series, waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Securities
of each Series.




          Section 12.9 Counterparts.




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




          Section 12.10 Governing Law; Waiver of Trial by Jury.




          THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, 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, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.




          THE COMPANY AND EACH OF THE GUARANTORS HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMIT, FOR THEMSELVES AND THEIR PROPERTY, TO THE
 NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT OF COMPETENT
JURISDICTION FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
 OF OR RELATING TO THIS INDENTURE, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT ARISING OUT OF OR RELATING TO THIS INDENTURE, AND EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND FINALLY DETERMINED IN SUCH FEDERAL COURT.  EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.



          Section 12.11 No Adverse Interpretation of Other Agreements.




          No past, present or future director, officer, stockholder or employee, as such, of the Company or any Guarantor or any successor corporation shall have
any liability for any obligation of the Company or any Guarantor under the Securities, the Indenture or the Guarantee or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the execution of this Indenture
and the issue of the Securities.




          Section 12.12 Successors.




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




52









 





          Section 12.13 Severability.




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




          Section 12.14 Counterpart Originals.




          The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.




          Section 12.15 Table of Contents, Headings, Etc.




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




          Section 12.16 Securities in a Foreign Currency




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




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





          Section 12.17 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.



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ARTICLE XIII.

SINKING FUNDS




          Section 13.1 Applicability of Article.




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




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




          Section 13.2 Satisfaction of Sinking Fund Payments with Securities.




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




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          Section 13.3 Redemption of Securities for Sinking Fund.




          Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture or Officers’ Certificate in respect of a particular Series of Securities) prior to each
sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for
that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 13.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days
(unless otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.




[Signatures on following pages]




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




	 	 	 	 	 
	 	L-3 COMMUNICATIONS CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	Steven M. Post 	 
	 	 	Title:  	Senior Vice President, General Counsel and
Corporate Secretary	 
	 



Guarantors:





    BROADCAST SPORTS INC.

    D.P. ASSOCIATES INC.

    ELECTRODYNAMICS, INC.

    INTERSTATE ELECTRONICS CORPORATION

    L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS

      TECHNOLOGY, INC.

    L-3 COMMUNICATIONS AIS GP CORPORATION

    L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.

    L-3 COMMUNICATIONS CINCINNATI ELECTRONICS

      INC.

    L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES,

      INC.

    L-3 COMMUNICATIONS EO/IR, INC.

    L-3 COMMUNICATIONS ESSCO, INC.

    L-3 COMMUNICATIONS FLIGHT CAPITAL LLC

    L-3 COMMUNICATIONS FLIGHT INTERNATIONAL

      AVIATION LLC

    L-3 COMMUNICATIONS INFRARED VISION 

      TECHNOLOGY CORPORATION

    L-3 COMMUNICATIONS INVESTMENTS INC.

    L-3 COMMUNICATIONS KLEIN ASSOCIATES, INC.

    L-3 COMMUNICATIONS MOBILE-VISION, INC.

    L-3 COMMUNICATIONS SECURITY AND DETECTION

      SYSTEMS, INC.

    L-3 COMMUNICATIONS SHARED SERVICES, LLC

    L-3 COMMUNICATIONS SONOMA EO, INC.

    L-3 COMMUNICATIONS VECTOR INTERNATIONAL

      AVIATION LLC

    L-3 COMMUNICATIONS VERTEX AEROSPACE LLC

    L-3 COMMUNICATIONS WESTWOOD CORPORATION

    LINCOM WIRELESS, INC.

    MICRODYNE COMMUNICATIONS TECHNOLOGIES

      INCORPORATED

    MICRODYNE CORPORATION

    MICRODYNE OUTSOURCING INCORPORATED

    PAC ORD INC.

    POWER PARAGON, INC.

    SPD ELECTRICAL SYSTEMS, INC.

    SPD SWITCHGEAR, INC.

    TITAN FACILITIES, INC.

    INTERNATIONAL RESOURCES GROUP, LTD.

    L-3 CHESAPEAKE SCIENCES CORPORATION

    L-3 COMMUNICATIONS APPLIED SIGNAL AND IMAGE

      TECHNOLOGY, INC.

    L-3 COMMUNICATIONS CYTERRA CORPORATION




    L-3 COMMUNICATIONS DYNAMIC POSITIONING AND

      CONTROL SYSTEMS, INC.



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    L-3 COMMUNICATIONS EOTECH, INC.

    L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC.

    L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC

    L-3 COMMUNICATIONS MARIPRO, INC.

    L-3 COMMUNICATIONS NOVA ENGINEERING, INC.

    L-3 FUZING AND ORDNANCE SYSTEMS, INC.

    L-3 G.A. INTERNATIONAL, INC.

    L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC.

    L-3 SERVICES, INC.

    L-3 UNMANNED SYSTEMS, INC.






As Guarantors




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: Steven M. Post	 	 
	 	 	Title: Senior Vice
President, Secretary	 	 





L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., a Delaware limited partnership



As a Guarantor




	 	 	 	 	 	 	 
	 	 	By: L-3 COMMUNICATIONS AIS GP CORPORATION, as General Partner
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: Steven M. Post	 	 
	 	 	Title: Senior Vice
President, Secretary	 	 








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	THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,	 	 
	          as Trustee	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 








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