Exhibit 4.1


 


EXECUTION VERSION


 


 


INDENTURE


 


Dated as of September 29, 2010


 


Among


 


KKR GROUP FINANCE CO. LLC,


 


THE GUARANTORS NAMED HEREIN


 


and


 


THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.,


 


as Trustee


 

















 


TABLE OF CONTENTS


 






 


	
   

  	
  PAGE

  
	
  PARTIES

  	
  1

  
	
   

  	
   

  
	
  RECITALS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  
	
  Section 101. Definitions

  	
  1

  
	
  Section 102. Compliance Certificates and Opinions

  	
  9

  
	
  Section 103. Form of Documents Delivered to Trustee

  	
  10

  
	
  Section 104. Acts of Holders; Record Dates

  	
  11

  
	
  Section 105. Notices, Etc., to Trustee, Company and
  Guarantors

  	
  13

  
	
  Section 106. Notice to Holders; Waiver

  	
  14

  
	
  Section 107. Reserved

  	
  14

  
	
  Section 108. Effect of Headings and Table of Contents

  	
  14

  
	
  Section 109. Successors and Assigns

  	
  14

  
	
  Section 110. Separability Clause

  	
  14

  
	
  Section 111. Benefits of Indenture

  	
  15

  
	
  Section 112. Governing Law, Jurisdiction, Venue

  	
  15

  
	
  Section 113. Legal Holidays

  	
  15

  
	
  Section 114. No Recourse Against Others

  	
  16

  
	
  Section 115. WAIVER OF JURY TRIAL

  	
  16

  
	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
  SECURITY FORMS

  	
   

  
	
   

  	
   

  
	
  Section 201. Forms Generally

  	
  16

  
	
  Section 202. Form of Legend for Global Securities

  	
  17

  
	
  Section 203. Form of Trustee’s Certificate of
  Authentication

  	
  17

  
	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
  THE SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 301. Amount Unlimited; Issuable in Series

  	
  18

  
	
  Section 302. Denominations

  	
  21

  
	
  Section 303. Execution, Authentication, Delivery and Dating

  	
  21

  
	
  Section 304. Temporary Securities

  	
  23

  
	
  Section 305. Registration, Registration of Transfer and
  Exchange

  	
  24

  
	
  Section 306. Mutilated, Destroyed, Lost and Stolen Securities

  	
  26

  
	
  Section 307. Payment of Interest; Interest Rights Preserved

  	
  26

  
	
  Section 308. Persons Deemed Owners

  	
  28

  
	
  Section 309. Cancellation

  	
  28

  
	
  Section 310. Computation of Interest

  	
  29

  
	
  Section 311. CUSIP Numbers

  	
  29

  



 


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  Section 312. Original Issue Discount

  	
  29

  
	
  Section 313. General Provisions Relating to Global Securities

  	
  29

  
	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section 401. Satisfaction and Discharge of Indenture

  	
  30

  
	
  Section 402. Application of Trust Money

  	
  31

  
	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
  REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 501. Events of Default

  	
  32

  
	
  Section 502. Acceleration of Maturity; Rescission and Annulment

  	
  34

  
	
  Section 503. Collection of Indebtedness and Suits for
  Enforcement by Trustee

  	
  35

  
	
  Section 504. Trustee May File Proofs of Claim

  	
  36

  
	
  Section 505. Trustee May Enforce Claims Without Possession
  of Securities

  	
  37

  
	
  Section 506. Application of Money Collected

  	
  37

  
	
  Section 507. Limitation on Suits

  	
  37

  
	
  Section 508. Unconditional Right of Holders to Receive
  Principal, Premium and Interest and to Convert Securities

  	
  38

  
	
  Section 509. Rights and Remedies Cumulative

  	
  38

  
	
  Section 510. Delay or Omission Not Waiver

  	
  39

  
	
  Section 511. Control by Holders

  	
  39

  
	
  Section 512. Waiver of Past Defaults

  	
  39

  
	
  Section 513. Undertaking for Costs

  	
  40

  
	
  Section 514. Waiver of Usury, Stay or Extension Laws

  	
  40

  
	
  Section 515. Restoration of Rights and Remedies

  	
  40

  
	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
  THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 601. Certain Duties and Responsibilities of Trustee

  	
  41

  
	
  Section 602. Notice of Defaults

  	
  42

  
	
  Section 603. Certain Rights of Trustee

  	
  42

  
	
  Section 604. Not Responsible for Recitals or Issuance of
  Securities

  	
  44

  
	
  Section 605. May Hold Securities

  	
  44

  
	
  Section 606. Money Held in Trust

  	
  44

  
	
  Section 607. Compensation and Reimbursement

  	
  45

  
	
  Section 608. Conflicting Interests

  	
  46

  
	
  Section 609. Corporate Trustee Required; Eligibility

  	
  46

  
	
  Section 610. Resignation and Removal; Appointment of Successor

  	
  46

  
	
  Section 611. Acceptance of Appointment by Successor

  	
  48

  
	
  Section 612. Merger, Conversion, Consolidation or Succession to
  Business

  	
  49

  
	
  Section 613. Preferential Collection of Claims Against Company

  	
  50

  
	
  Section 614. Trustee’s Application for Instructions from the
  Company

  	
  50

  



 


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  ARTICLE VII

  	
   

  
	
  HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE, THE COMPANY AND THE
  GUARANTORS

  	
   

  
	
   

  	
   

  
	
  Section 701. Company to Furnish Trustee Names and Addresses of
  Holders

  	
  50

  
	
  Section 702. Preservation of Information; Communications to
  Holders

  	
  51

  
	
  Section 703. Reports by Trustee

  	
  51

  
	
  Section 704. Reports by the Company and the Guarantors

  	
  51

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
  CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS

  	
   

  
	
   

  	
   

  
	
  Section 801. Company and Guarantors May Merge or Transfer
  Assets on Certain Terms

  	
  52

  
	
  Section 802. Successor Person Substituted

  	
  52

  
	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  
	
  Section 901. Supplemental Indentures Without Consent of Holders

  	
  53

  
	
  Section 902. Supplemental Indentures With Consent of Holders

  	
  54

  
	
  Section 903. Execution of Supplemental Indentures

  	
  56

  
	
  Section 904. Effect of Supplemental Indentures

  	
  56

  
	
  Section 905. Reserved

  	
  56

  
	
  Section 906. Notice of Supplemental Indenture; Reference in
  Securities to Supplemental Indentures

  	
  56

  
	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 1001. Payment of Principal, Premium, if any, and
  Interest

  	
  57

  
	
  Section 1002. Maintenance of Office or Agency

  	
  57

  
	
  Section 1003. Money for Securities Payments to Be Held in Trust

  	
  58

  
	
  Section 1004. Statement by Officers as to Default

  	
  59

  
	
  Section 1005. Waiver of Certain Covenants

  	
  59

  
	
   

  	
   

  
	
  ARTICLE XI

  	
   

  
	
  REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 1101. Applicability of Article

  	
  60

  
	
  Section 1102. Election to Redeem; Notice to Trustee

  	
  60

  
	
  Section 1103. Selection by Trustee of Securities to Be Redeemed

  	
  60

  
	
  Section 1104. Notice of Redemption

  	
  61

  
	
  Section 1105. Deposit of Redemption Price

  	
  62

  
	
  Section 1106. Securities Payable on Redemption Date

  	
  63

  
	
  Section 1107. Securities Redeemed in Part

  	
  63

  



 


iii

















 


	
  ARTICLE XII

  	
   

  
	
  SINKING FUNDS

  	
   

  
	
   

  	
   

  
	
  Section 1201. Applicability of Article

  	
  64

  
	
  Section 1202. Satisfaction of Sinking Fund Payments with
  Securities

  	
  64

  
	
  Section 1203. Redemption of Securities for Sinking Fund

  	
  64

  
	
   

  	
   

  
	
  ARTICLE XIII

  	
   

  
	
  DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section 1301. Company’s Option to Effect Defeasance or Covenant
  Defeasance

  	
  65

  
	
  Section 1302. Defeasance and Discharge

  	
  65

  
	
  Section 1303. Covenant Defeasance

  	
  66

  
	
  Section 1304. Conditions to Defeasance or Covenant Defeasance

  	
  66

  
	
  Section 1305. Deposited Money and U.S. Government Obligations to
  Be Held in Trust; Miscellaneous Provisions

  	
  68

  
	
  Section 1306. Reinstatement

  	
  69

  
	
   

  	
   

  
	
  ARTICLE XIV

  	
   

  
	
  GUARANTEE OF SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 1401. Guarantee

  	
  69

  
	
  Section 1402. Additional Guarantors

  	
  70

  
	
  Section 1403. Waiver

  	
  70

  
	
  Section 1404. Guarantee of Payment

  	
  70

  
	
  Section 1405. No Discharge or Diminishment of Guarantee

  	
  70

  
	
  Section 1406. Defenses of Company Waived

  	
  71

  
	
  Section 1407. Continued Effectiveness

  	
  71

  
	
  Section 1408. Subrogation

  	
  72

  
	
  Section 1409. Subordination

  	
  72

  
	
  Section 1410. Release of Guarantor and Termination of Guarantee

  	
  72

  
	
  Section 1411. Limitation of Guarantors’ Liability

  	
  73

  
	
  Section 1412. No Obligation to Take Action Against the Company

  	
  74

  
	
  Section 1413. Execution and Delivery

  	
  74

  



 


iv

















 


INDENTURE, dated as of September 29, 2010,
among KKR GROUP FINANCE CO. LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the “Company”),
each of the Guarantors named herein (the “Guarantors”)
and THE BANK OF NEW YORK MELLON TRUST COMPANY N.A., as Trustee (herein called
the “Trustee”).


 


RECITALS


 


The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
senior unsecured debt securities (herein called the “Securities”), to be issued
in one or more series as provided in this Indenture.


 


Each Guarantor has duly authorized its guarantee of
the Securities (the “Guarantees”)
and to provide therefor each Guarantor has duly authorized the execution and
delivery of this Indenture.


 


All things necessary to make this Indenture a valid
agreement of each of the Company and the Guarantors, in accordance with its
terms, have been done.


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


ARTICLE I

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 101. 
Definitions.


 


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


 


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


 


(2)           all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;


 


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


 


1

















 


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


 


(5)           “including”
means including without limitation;


 


(6)           when
used with respect to any Security, the words “convert,” “converted” and “conversion”
are intended to refer to the right of the Holder, the Company or the Guarantors
to convert or exchange such Security into or for securities or other property
in accordance with such terms, if any, as may hereafter be specified for such
Security as contemplated by Section 301, and these words are not intended
to refer to any right of the Holder, the Company or the Guarantors to exchange
such Security for other Securities of the same series and of like tenor
pursuant to Section 304, 305, 306, 906 or 1107 or another similar
provisions of this Indenture, unless the context otherwise requires; and
references herein to the terms of any Security that may be converted mean such
terms as may be specified for such Security as contemplated in Section 301;
and


 


(7)           unless
otherwise provided, references to agreements and other instruments shall be
deemed to include all amendments and other modifications to such agreements and
instruments, but only to the extent such amendments and other modifications are
not prohibited by the terms of this Indenture.


 


“Act,” when used
with respect to any Holder, has the meaning specified in Section 104.


 


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


 


“Applicable Procedures”
means, with respect to a Depositary, as to any matter at any time, the policies
and procedures of such Depositary, if any, that are applicable to such matter
at such time.


 


“Bankruptcy Law”
has the meaning specified in Section 501.


 


“Business Day”
means, when used with respect to any Place of Payment, unless otherwise
specified as contemplated by Section 301, any day, other than a Saturday
or Sunday, which is not a day on which banking institutions or trust companies
are authorized or obligated by law, regulation or executive order to close in
that Place of Payment.


 


“Commission”
means the U.S. Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act, or, if at any time


 


2

















 


after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.


 


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


 


“Company Request”
or “Company Order” means a written request
or order signed by or on behalf of the Company by any Officer, manager, member
or partner thereof (or any Person designated in writing as authorized to
execute and deliver Company Requests and Company Orders), and delivered to the
Trustee.


 


“Company Resolution”
means a copy of one or more resolutions certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the member or
members of the Company or board of directors of the Company, as the case may
be, and to be in full force and effect on the date of such certification and
delivered to the Trustee.


 


“Corporate Trust Office”
means the principal office of the Trustee at which, at any particular time, its
corporate trust business shall be conducted, which office is located as of the
date of this Indenture at 525 William Penn Place, 38th Floor, Pittsburgh, Pennsylvania 15259,
Attention: Corporate Finance Group, or at any other time at such other address
as the Trustee may designate from time to time by notice to the Company, or the
principal corporate trust office of any successor Trustee (or such other
address as such successor Trustee may designate from time to time by notice to
the Company).


 


“Covenant Defeasance”
has the meaning specified in Section 1303.


 


“Credit Group”
means the Credit Parties and the Credit Parties’ direct and indirect
Subsidiaries (to the extent of their economic ownership interest in such
Subsidiaries) taken as a whole.


 


“Credit Parties”
means the Company and the Guarantors.


 


“Custodian” has
the meaning specified in Section 501.


 


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


 


“Defaulted Interest”
has the meaning specified in Section 307.


 


“Defeasance” has
the meaning specified in Section 1302.


 


“Depositary”
means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency


 


3

















 


registered under the Exchange Act that is
designated to act as Depositary for such Securities as contemplated by Section 301.


 


“Event of Default”
has the meaning specified in Section 501.


 


“Exchange Act”
means the U.S. Securities Exchange Act of 1934 and any statute successor
thereto, in each case as amended from time to time.


 


“Expiration Date”
has the meaning specified in Section 104.


 


“GAAP” means
generally accepted accounting principles in the United States (including, if
applicable, International Financial Reporting Standards) as in effect from
time to time.


 


“Global Security”
means a Security that evidences all or part of the Securities of any series and
bears the legend set forth in Section 202 (or such legend as may be
specified as contemplated by Section 301 for such Securities).


 


“Guarantees” has
the meaning specified in the second recital of this Indenture and more
particularly means any Guarantee made by each of the Guarantors as set forth in
Article XIV hereof.


 


“Guarantors”
means (i) each of the Persons listed on Schedule I attached hereto and (ii) in
the future, any New KKR Entity that becomes a Guarantor pursuant to Article XIV,
but in each case excluding Persons who cease to be Guarantors in accordance
with this Indenture.


 


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


 


“Indenture”
means this Indenture as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.  The term “Indenture” shall also include the
terms of particular series of Securities established as contemplated by Section 301.


 


“Insignificant Guarantor”
means a Guarantor (or a group of Guarantors taken together) that would not, on
a combined and consolidated basis and taken as a whole together with all
then-existing Non-Guarantor Entities designated pursuant to clause (ii) of
the definition of Non-Guarantor Entity set forth in Section 1410,
constitute a Significant Subsidiary.


 


“interest”
means, when used with respect to an Original Issue Discount Security which by
its terms bears interest only after Maturity, interest payable after Maturity.


 


“Interest Payment Date”
means, when used with respect to any Security, the Stated Maturity of an
installment of interest on such Security.


 


4

















 


“Internal Revenue Code”
means the U.S. Internal Revenue Code of 1986, as amended from time to time.


 


“Managing Partner”
means KKR Management LLC, a Delaware limited liability company.


 


“Maturity”
means, when used with respect to any Security, the date on which the principal
of such Security or an 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 or otherwise.


 


“New KKR Entity”
means any direct or indirect Subsidiary of the Partnership other than (i) a
then-existing Guarantor, (ii) any Person in which the Partnership directly
or indirectly owns its interest through one or more of the then-existing
Guarantors or (iii) any Person through which the Partnership directly or
indirectly owns its interests in one or more then-existing Guarantors.


 


“Non-Guarantor Entity”
means any Person so designated by the Company pursuant to Section 1410.


 


“Non-Guarantor Limitation”
has the meaning specified in Section 1410.


 


“Notice of Default”
means a written notice of the kind specified in Section 501.


 


“Obligations”
has the meaning specified in Section 1401.


 


“obligor” has
the meaning given to such term in the Trust Indenture Act.


 


“Officer” means
any Chairman, any Vice Chairman, any Chief Executive Officer, the Chief
Administrative Officer, the Treasurer, any Vice President, any Assistant
Treasurer, the Principal Accounting Officer, the Chief Financial Officer, the
Chief Accounting Officer, the General Counsel, any Senior Principal, the
Secretary or any Assistant Secretary of the Company or any Guarantor (or any
sole or managing member or general partner of the Company or any Guarantor), as
the case may be, or, in the case of the Company or the Guarantors’ general
partners, any Person designated as an officer pursuant to the organizational
documents of the Company or the Guarantors.


 


“Officers’ Certificate”
means a certificate signed by two Officers of the Company or any Guarantor (or
any sole or managing member or general partner of the Company or any
Guarantor), as the case may be, and delivered to the Trustee.


 


“Opinion of Counsel”
means a written opinion of counsel (who may be counsel for, including an
employee of, the Company or for any Guarantor) and who shall be reasonably
acceptable to the Trustee.


 


5
















 


“Original Issue Discount
Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.


 


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


 


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


 


(2)           Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;


 


(3)           Securities
as to which Defeasance has been effected pursuant to Section 1302;


 


(4)           Securities
which have been paid pursuant to Section 306 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a protected purchaser in whose hands such Securities are
valid obligations of the Company; and


 


(5)           Securities
as to which any property deliverable upon conversion thereof has been delivered
(or such delivery has been made available), or as to which any other particular
conditions have been satisfied, in each case as may be provided for such
Securities as contemplated in Section 301;


 


provided,
however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have
given, made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which shall be deemed
to be Outstanding shall be the amount of the principal thereof which would be
due and payable as of such date upon acceleration of the Maturity thereof to
such date pursuant to Section 502, (B) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by Section 301,
(C) the principal amount of a Security denominated in one or more foreign
currencies, composite currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date


 


6

















 


in the manner provided as contemplated by Section 301,
of the principal amount of such Security (or, in the case of a Security
described in clause (A) or (B) above, of the amount determined as
provided in such clause), and (D) Securities owned by the Company, any
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, any Guarantor or such other obligor shall be disregarded and deemed not
to be Outstanding (except in the case where the Securities are 100% owned by
the Company or any Affiliate of the Company), except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer actually knows to be so owned shall be
so disregarded.  Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Securities and that the pledgee is not the Company,
any Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, any Guarantor or such other obligor.


 


“Partnership”
means KKR & Co. L.P., a Delaware limited partnership.


 


“Paying Agent”
means any Person authorized by the Company to pay the principal of or premium,
if any, or interest on any Securities on behalf of the Company or any
Guarantor.


 


“Permitted Jurisdictions”
has the meaning specified in Section 801(a)(1).


 


“Person” means
an individual, a corporation, a partnership, a limited liability company, an
association, a trust, or any other entity including government or political
subdivision or an agency or instrumentality thereof.


 


“Place of Payment”
means, when used with respect to the Securities of any series, the place or
places where the principal of and premium, if any, and interest on the
Securities of such series are payable as specified as contemplated by Section 301.


 


“Predecessor Security”
means, with respect to any particular Security, every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security.


 


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


 


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


 


7

















 


“Regular Record Date”
means, for the interest payable on any Interest Payment Date on the Securities
of any series, the date specified for that purpose as contemplated by Section 301.


 


“Repayment Date”
means, with used with respect to a Security to be repaid at the option of a
Holder, the date fixed for such repayment by or pursuant to this Indenture.


 


“Responsible Officer”
means with respect to the Trustee, any officer assigned to the Corporate
Finance Group (or any successor division or unit) of the Trustee located at the
Corporate Trust Office of the Trustee, who shall have direct responsibility for
the administration of this Indenture and, for the purposes of Section 601(3)(B) and
the second sentence of Section 602, shall also include any other officer
of the Trustee to whom any corporate trust matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.


 


“Securities” has
the meaning specified in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this
Indenture.


 


“Securities Act”
means the U.S. Securities Act of 1933 and any statute successor thereto, in
each case as amended from time to time.


 


“Security Register”
and “Security Registrar” have the respective
meanings specified in Section 305.


 


“Senior Principal”
means any member of the Managing Partner who holds any limited liability
company interests in the Managing Partner.


 


“Significant Subsidiary”
means a “significant subsidiary” (as such term is defined in Rule 1-02(w) of
Regulation S-X under the Securities Act or any successor provision) of the
Partnership.


 


“Special Record Date”
means, for the payment of any Defaulted Interest, a date fixed by the Trustee
pursuant to Section 307.


 


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


 


“Subsidiary”
means any subsidiary of a Person that is or would be consolidated with such
Person in the preparation of segment information with respect to the combined
financial statements of such Person prepared in accordance with GAAP. For the
avoidance of doubt, a Subsidiary shall not include (a) any private equity
or other investment fund or vehicle or (b) any portfolio company of any
such fund or vehicle.


 


8

















 


“Substantially All Merger”
means a merger or consolidation of one or more Credit Parties with or into
another Person that would, in one or a series of related transactions, result
in the transfer or other disposition, directly or indirectly, of all or
substantially all of the combined assets of the Credit Group taken as a whole
to a Person that is not within the Credit Group immediately prior to such
transaction.


 


“Substantially All Sale”
means a sale, assignment, transfer, lease or conveyance to any other Person, in
one or a series of related transactions, directly or indirectly, of all or
substantially all of the combined assets of the Credit Group taken as a whole
to a Person that is not within the Credit Group immediately prior to such
transaction.


 


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


 


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


 


“U.S. Government Obligation”
has the meaning specified in Section 1304(1).


 


“Vice President”
means, when used with respect to the Company or any Guarantor (or any sole or
managing member or general partner of the Company or any Guarantor) or the
Trustee, any vice president, whether or not designated by a number or a word or
words added before or after the title “vice president.”


 


Section 102. 
Compliance Certificates and Opinions.


 


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


 


9

















 


Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (except
for certificates provided for in Section 1004) shall include:


 


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


 


(2)        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;


 


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


 


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


 


Section 103. 
Form of Documents Delivered to Trustee.


 


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


 


Any certificate or opinion of an Officer may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such Officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such Officer’s
certificate or opinion is based are erroneous. 
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers stating that the information with
respect to such factual matters is in the possession of the Company or a
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.


 


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


 


10

















 


Section 104. 
Acts of Holders; Record Dates.


 


Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture
to be given, made or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company or the Guarantors.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of the Holders signing such
instrument or instruments.  Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and, subject to Section 601,
conclusive in favor of the Trustee, the Company and the Guarantors, if made in
the manner provided in this Section 104.


 


The fact and date of the execution by any Person of
any such instrument or writing may be proved in any manner which the Trustee
reasonably deems sufficient.  Where such
execution is by a Person acting in a capacity other than such Person’s
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such Person’s authority. 
The fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.


 


The ownership of Securities shall be proved by the
Security Register.


 


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


 


The Company or any Guarantor may set any day as a
record date for the purpose of determining the Holders of Outstanding Securities
of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities
of such series; provided that none of the Company
or any Guarantor may set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph.  If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or


 


11

















 


prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date.  Nothing in this
paragraph shall be construed to prevent the Company or any Guarantor from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.  Promptly after any record date is set
pursuant to this paragraph, the Company or any Guarantor, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section 106.


 


The Trustee may set any day as a record date for
the purpose of determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 502, (iii) any
request to institute proceedings referred to in Section 507(2) or (iv) any
direction referred to in Section 511, in each case with respect to
Securities of such series.  If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities
of such series 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
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date.  Nothing in this paragraph shall be construed
to prevent the Trustee from setting a new record date for any action for which
a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken.  Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company and the
Guarantors in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.


 


With respect to any record date set pursuant to
this Section 104, the party hereto which sets such record dates may
designate any day as the “Expiration Date”
and from time to time may change the Expiration Date to any earlier or later
day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities of the relevant series in
the manner set forth in Section 106, on or prior to the existing
Expiration Date.  If an Expiration Date
is not


 


12

















 


designated with respect to any record date set
pursuant to this Section 104, the party hereto which set such record date
shall be deemed to have initially designated the 180th day after such record
date as the Expiration Date with respect thereto, subject to its right to
change the Expiration Date as provided in this paragraph.


 


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


 


Section 105. 
Notices, Etc., to Trustee, Company and
Guarantors.


 


Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,


 


(1)        the
Trustee by any Holder or by the Company or a Guarantor shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing (which
may be by facsimile) to or with the Trustee at its Corporate Trust Office at
the location specified in Section 101; or


 


(2)        the
Company or a Guarantor by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company or any
Guarantor addressed to the attention of the Secretary of the Company or such
Guarantor at the address of the Company’s principal office specified in writing
to the Trustee by the Company and, until further notice, at 9 West 57th Street, Suite 4200, New
York, New York 10019, fax number: (212) 750-0003, Attention: Chief Financial
Officer.


 


The Trustee shall have the right, but shall not be
required, to rely upon and comply with instructions and directions sent by
e-mail, facsimile and other similar unsecured electronic methods by persons
believed by the Trustee to be authorized to give instructions and directions on
behalf of the Company.  The Trustee shall
have no duty or obligation to verify or confirm that the person who sent such
instructions or directions is, in fact, a person authorized to give
instructions or directions on behalf of the Company; and the Trustee shall have
no liability for any losses, liabilities, costs or expenses incurred or
sustained by the Company as a result of such reliance upon or compliance with
such instructions or directions.  The
Company agrees to assume all risks arising out of the use of such electronic
methods to submit instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized instructions, and the
risk of interception and misuse by third parties.


 


13

















 


Section 106. 
Notice to Holders; Waiver.


 


Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at such Holder’s address as it appears in
the Security Register, not later than the latest date, if any, and not earlier
than the earliest date, if any, prescribed for the giving of such notice.  In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders.  Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.


 


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


 


Where this Indenture provides for notice of any
event to a Holder of a Global Security, such notice shall be sufficiently given
if given to the Depositary for such Security (or its designee), pursuant to the
Applicable Procedures of the Depositary, 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 107. 
Reserved.


 


Section 108. 
Effect of Headings and Table of Contents.


 


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


 


Section 109. 
Successors and Assigns.


 


All covenants and agreements in this Indenture by
the Company and the Guarantors shall bind their respective successors and
assigns, whether so expressed or not. 
All agreements of the Trustee in this Indenture shall bind its
successors and assigns, whether so expressed or not.


 


Section 110. 
Separability Clause.


 


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


 


14

















 


Section 111. 
Benefits of Indenture.


 


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


 


Section 112. 
Governing Law, Jurisdiction, Venue.


 


This Indenture, the Securities and the Guarantees
shall be governed by, and construed in accordance with, the law of the State of
New York. The Company, the Guarantors and the Trustee agree that any legal
suit, action or proceeding arising out of or relating to this Indenture, and
the Company and the Guarantor agree that any legal suit, action or proceeding
arising out of or relating to the Securities, may be instituted in any federal
or state court in the Borough of Manhattan, The City of New York, in respect of
actions brought against each such party as a defendant, and each waives any
objection which it may now or hereafter have to the laying of the venue of any
such legal suit, action or proceeding, waives any immunity, to the extent
permitted by law, from jurisdiction or to service of process in respect of any
such suit, action or proceeding, waives any right to which it may be entitled
on account of place of residence or domicile and irrevocably submits to the
jurisdiction of any such court in any such suit, action or proceeding.


 


Section 113. 
Legal Holidays.


 


In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or any date on which a
Holder has the right to convert such Holder’s Security, shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section 113))
payment of principal and premium, if any, or interest, or the Redemption Price
or conversion of such Security, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, or on such conversion date.  In the case, however, of Securities of a
series bearing interest at a floating rate based on the London interbank
offered rate (LIBOR), if any Interest Payment Date (other than the Redemption
Date or Stated Maturity) would otherwise be a date that is not a Business Day,
then the Interest Payment Date shall be postponed to the following date which
is a Business Day, unless that Business Day falls in the next succeeding
calendar month, in which case the Interest Payment Date will be the immediately
preceding Business Day.  No interest
shall accrue for the period from and after any such Interest Payment Date,
Redemption Date, Stated Maturity or conversion date, as the case may be, to the
date of such payment.


 


15
















 


Section 114. No Recourse
Against Others.


 


A director, partner, officer, employee, member,
manager or stockholder as such of the Company or any Guarantor shall not have
any liability for any obligations of the Company under the Securities, the
Guarantees or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. 
By accepting a Security, each Holder shall waive and release all such
liability.  The waiver and release shall
be part of the consideration for the issue of the Securities.


 


Section 115. 
WAIVER OF JURY TRIAL.


 


EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE
AND THE HOLDERS, BY THEIR ACCEPTANCE OF THE SECURITIES, HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING AS AMONG THE COMPANY, THE GUARANTORS AND
THE TRUSTEE ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES
OR THE GUARANTEES.


 


ARTICLE II

SECURITY FORMS


 


Section 201. 
Forms Generally.


 


The Securities of each series shall be in
substantially such form or forms as shall be established by or pursuant to a
Company Resolution or, subject to Section 303, set forth in, or determined
in the manner provided in, an Officers’ Certificate of the Company pursuant to
a Company Resolution, or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or Depositary therefor or as
may, consistently herewith, be determined by the Officer executing such
Securities, as evidenced by their execution thereof.  If the form of Securities of any series is
established by action taken pursuant to a Company Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities. 
If all of the Securities of any series established by action taken
pursuant to a Company Resolution are not to be issued at one time, it shall not
be necessary to deliver a record of such action at the time of issuance of each
Security of such series, but an appropriate record of such


 


16

















 


action shall be delivered at or before the time of
issuance of the first Security of such series.


 


The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the Officers of the Company executing such
Securities, as evidenced by their execution of such Securities.


 


Section 202. 
Form of Legend for Global Securities.


 


Unless otherwise specified as contemplated by Section 301
for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS 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.


 


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


 


Section 203. 
Form of Trustee’s Certificate of
Authentication.


 


The Trustee’s certificates of authentication shall
be in substantially the following form:


 


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


 


Dated:


 


17

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


ARTICLE III

THE SECURITIES


 


Section 301. 
Amount Unlimited; Issuable in Series.


 


The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.


 


The Securities may be issued in one or more
series.  There shall be established in or
pursuant to (a) a Company Resolution or pursuant to authority granted by a
Company Resolution and, subject to Section 303, set forth, or determined
in the manner provided, in an Officers’ Certificate of the Company, or (b) one
or more indentures supplemental hereto, prior to the issuance of Securities of
any series:


 


(1)        the
title of the Securities of the series (which shall distinguish the Securities
of the series from Securities of any other series);


 


(2)        the
limit, if any, on 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 304,
305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);


 


(3)        the
Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest;


 


(4)        the
date or dates on which the principal of any Securities of the series is payable
or the method used to determine or extend those dates;


 


(5)        the
rate or rates at which any Securities of the series shall bear interest, if
any, the date or dates from which any such interest shall accrue, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date for any such interest payable on any Interest Payment Date;


 


18

















 


(6)        the
place or places where the principal of and premium, if any, and interest on any
Securities of the series shall be payable and the manner in which any payment
may be made;


 


(7)        the
period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or
in part, at the option of the Company and, if other than by a Company
Resolution, the manner in which any election by the Company to redeem the
Securities shall be evidenced;


 


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


 


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


 


(10)     if
the amount of principal of or premium, if any, or interest on any Securities of
the series may be determined with reference to a financial or economic measure
or index or pursuant to a formula, the manner in which such amounts shall be
determined;


 


(11)     if
other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or premium, if any, or
interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition of “Outstanding”
in Section 101;


 


(12)     if
the principal of or premium, if any, or interest on any Securities of the
series is to be payable, at the election of the Company or the Holder thereof,
in one or more currencies or currency units other than that or those in which
such Securities are stated to be payable, the currency, currencies or currency
units in which the principal of or premium, if any, or interest on such
Securities as to which such election is made shall be payable, the periods within
which and the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be determined);


 


(13)     if
other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 502;


 


(14)     if
the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the principal


 


19

















 


amount of such Securities as of any such date for
any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to be
the principal amount shall be determined);


 


(15)     if
other than by a Company Resolution, the manner in which any election by the
Company to defease any Securities of the series pursuant to Section 1302
or Section 1303 shall be evidenced; whether any Securities of the series
other than Securities denominated in U.S. dollars and bearing interest at a
fixed rate are to be subject to Section 1302 or Section 1303; or, in
the case of Securities denominated in U.S. dollars and bearing interest at a
fixed rate, if applicable, that the Securities of the series, in whole or any
specified part, shall not be defeasible pursuant to Section 1302 or Section 1303
or both such Sections;


 


(16)     if
applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the
respective Depositaries for such Global Securities, the form of any legend or
legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 202 and any circumstances in addition to
or in lieu of those set forth in clause (2) of the last paragraph of Section 305
in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof and any other
provisions governing exchanges or transfers of such Global Security;


 


(17)     any
addition to, deletion from 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 502;


 


(18)     any
addition to, deletion from or change in the covenants set forth in Article X
which applies to Securities of the series;


 


(19)     if
the Securities of the series are to be convertible into or exchangeable for
cash and/or any securities or other property of any Person (including the
Company), the terms and conditions upon which such Securities will be so
convertible or exchangeable;


 


(20)     whether
the Securities of the series will be guaranteed by any Person or Persons other
then the Guarantors and, if so, the identity of such Person or Persons, the
terms and conditions upon which such Securities shall be guaranteed and, if
applicable, the terms and conditions upon which such guarantees may be
subordinated to other indebtedness of the respective guarantors;


 


20

















 


(21)     whether
the Securities of the series will be secured by any collateral and, if so, the
terms and conditions upon which such Securities shall be secured and, if
applicable, upon which such liens may be subordinated to other liens securing
other indebtedness of the Company or any Guarantor;


 


(22)     if
other than The Bank of New York Mellon Trust Company, N.A. is to act as Trustee
for the Securities of such series, the name and Corporate Trust Office of such
Trustee; and


 


(23)     any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(12)).


 


All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise
be provided in or pursuant to the Company Resolution referred to above or
pursuant to authority granted by one or more Company Resolutions and, subject
to Section 303, set forth, or determined in the manner provided, in the
Officers’ Certificate of the Company referred to above or in any such indenture
supplemental hereto.


 


All Securities of any one series need not be issued
at one time and, unless otherwise provided in or pursuant to the Company
Resolution referred to above and, subject to Section 303, set forth, or
determined in the manner provided, in the Officers’ Certificate of the Company
referred to above or pursuant to authority granted by one or more Company
Resolutions or in any such indenture supplemental hereto with respect to a
series of Securities, additional Securities of a series may be issued, at the
option of the Company, without the consent of any Holder, at any time and from
time to time.


 


If any of the terms of the series are established
by action taken pursuant to a Company Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate of the Company setting forth the terms of
the series.


 


Section 302. 
Denominations.


 


The Securities of each series shall be issuable
only in registered form without coupons and only in such denominations as shall
be specified as contemplated by Section 301.  In the absence of any such specified
denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $2,000 and any integral
multiple of $1,000 in excess thereof.


 


Section 303. 
Execution, Authentication, Delivery and Dating.


 


The Securities shall be executed on behalf of the
Company by one of its Officers.  The
signature on the Securities may be manual or facsimile.


 


21

















 


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


 


At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities.  If the form or
terms of the Securities of the series have been established by or pursuant to
one or more Company Resolutions or pursuant to authority granted by one or more
Company Resolutions as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and, subject to Section 601, shall be fully protected in relying
upon, an Opinion of Counsel stating,


 


(1)        if
the form of such Securities has been established by or pursuant to Company
Resolution or pursuant to authority granted by one or more Company Resolutions
as permitted by Section 201, that such form has been established in
conformity with the provisions of this Indenture;


 


(2)        if
the terms of such Securities have been established by or pursuant to Company
Resolution or pursuant to authority granted by one or more Company Resolutions
as permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and


 


(3)        that
such Securities and the related Guarantees, when the Securities are
authenticated by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company and each
Guarantor, respectively, enforceable against the Company and each Guarantor,
respectively, in accordance with their terms, subject to (i) the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors’ rights generally, (ii) general
equitable principles and (iii) an implied covenant of good faith and fair
dealing.


 


If such form or terms have been so established, the
Trustee shall not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will adversely affect the Trustee’s
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.


 


Notwithstanding the provisions of Section 301
and of the preceding paragraph of this Section 303, if all Securities of a
series are not to be originally


 


22

















 


issued at one time, including in the event that the
aggregate principal amount of a series of Outstanding Securities is increased
as contemplated by Section 301, it shall not be necessary to deliver the
Officers’ Certificate of the Company otherwise required pursuant to Section 301
or the Company Order and Opinion of Counsel otherwise required pursuant to this
Section 303 at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.


 


Each Security shall be dated the date of its
authentication.


 


No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.  Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


 


Section 304. 
Temporary Securities.


 


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


 


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


 


23

















 


Section 305. 
Registration, Registration of Transfer and Exchange.


 


The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such office
and in any other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities.  The Trustee
is hereby appointed “Security Registrar” for the purpose of registering
Securities and transfers of Securities as herein provided.


 


Upon surrender for registration of transfer of any
Security of a series at the office or agency of the Company in a Place of
Payment for such series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and principal amount.


 


At the option of the Holder, Securities of any
series may be exchanged for other Securities of the same series, of any
authorized denominations and of like tenor and principal amount, upon surrender
of the Securities to be exchanged at such office or agency.  Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities, which the Holder making the exchange is entitled to
receive.


 


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


 


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


 


No service charge shall be made for any
registration of transfer or exchange of Securities, but the Company or the
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 304,
906 or 1107 not involving any transfer.


 


If the Securities of any series (or of any series
and specified tenor) are to be redeemed in part, the Company shall not be
required (A) to issue, register the transfer of or exchange any Securities
of such series (or of such series and specified tenor, as the case may be)
during a period beginning at the opening of


 


24

















 


business 15 days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption under Section 1103
and ending at the close of business on the day of such mailing, or (B) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.


 


Neither the Trustee nor the Security Registrar
shall have any obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among Depositary participants or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.


 


The provisions of clauses (1), (2), (3) and (4) of
this paragraph shall apply only to Global Securities:


 


(1)        Each
Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof
and delivered to such Depositary or a nominee thereof or custodian therefor,
and each such Global Security shall constitute a single Security for all purposes
of this Indenture.


 


(2)        Notwithstanding
any other provision in this Indenture, and subject to such applicable
provisions, if any, as may be specified as contemplated by Section 301, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (A) such Depositary has notified the Company that
it is unwilling or unable or no longer permitted under applicable law to
continue as Depositary for such Global Security, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security, (C) the Company so directs the Trustee by a Company Order or (D) there
shall exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by Section 301.


 


(3)        Subject
to clause (2) above and to such applicable provisions, if any, as may be
specified as contemplated by Section 301, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion thereof
shall be registered in such names as the Depositary for such Global Security
shall direct.


 


(4)        Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether
pursuant to this Section 305, Section 304, 306, 906 or 1107 or


 


25
















 


otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such Global
Security or a nominee thereof.


 


Section 306. 
Mutilated, Destroyed, Lost and Stolen Securities.


 


If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of 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 (1) evidence to their satisfaction of the destruction, loss or
theft of any Security and (2) 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 protected purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount, having the Guarantees noted therein, 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 306,
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 counsel to the Company and the
fees and expenses of the Trustee and its counsel) connected therewith.


 


Every new Security of any series issued pursuant to
this Section 306 in lieu of any mutilated, destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company and the respective Guarantors, whether or not the mutilated, 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 such series and Guarantees duly issued
hereunder.


 


The provisions of this Section 306 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 307. 
Payment of Interest; Interest Rights Preserved.


 


Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid 


 


26

















 


to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.


 


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


 


(1)       The
Company may elect to make payment of any Defaulted Interest payable on
Securities of a series to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. 
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment.  The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series in the manner set forth in Section 106,
not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).


 


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


 


Subject to the foregoing provisions of this Section 307,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for 


 


27

















 


or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.


 


In the case of any Security which is converted
after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Security whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or made available for
payment) shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on such
Regular Record Date.  Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Security which is converted, interest whose Stated Maturity is after the date
of conversion of such Security shall not be payable.  Notwithstanding the foregoing, the terms of
any Security that may be converted may provide that the provisions of this
paragraph do not apply, or apply with such additions, changes or omissions as
may be provided thereby, to such Security.


 


Section 308. 
Persons Deemed Owners.


 


Prior to due presentment of a Security for
registration of transfer, the Company, the Guarantors, the Trustee and any
agent of the Company, a Guarantor or the Trustee may treat the Person in whose
name such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of and premium, if any, and, subject to Section 307,
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and none of the Company, the Guarantors, the
Trustee nor any agent of the Company, a Guarantor or the Trustee shall be
affected by notice to the contrary.


 


Section 309. 
Cancellation.


 


All Securities surrendered for payment, redemption,
registration of transfer or exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.  The Company or any Guarantor may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company or such Guarantor may have acquired
in any manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee.  No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 309,
except as expressly permitted by this Indenture.  All cancelled Securities held by the Trustee
shall be disposed of in accordance with its customary procedures.  The Trustee shall provide the 


 


28

















 


Company or any Guarantor a list of all Securities
that have been cancelled from time to time as requested, in writing, by the
Company or such Guarantor.


 


Section 310. 
Computation of Interest.


 


Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.


 


Section 311. 
CUSIP Numbers.


 


The Company in issuing any series of the Securities
may use “CUSIP” or “ISIN” numbers and/or other similar numbers, if then
generally in use, and thereafter with respect to such series, the Trustee may
use such numbers in any notice of redemption with respect to such series; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities of such series or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Securities of such series, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly make the Trustee aware of any changes to the “CUSIP” or “ISIN”
numbers.


 


Section 312. 
Original Issue Discount.


 


If any of the Securities is an Original Issue
Discount Security, the Company shall file with the Trustee promptly at the end
of each calendar year (1) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on
such Outstanding Original Issue Discount Securities as of the end of such year
and (2) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code.


 


Section 313. 
General Provisions Relating to Global Securities.


 


Owners of beneficial interests in the Securities
evidenced by a Global Security will not be entitled to any rights under this
Indenture with respect to such Global Security, and the Depositary or its
nominee may be treated by the Company, the Guarantors, and the Trustee and any
agent of the Company, the Guarantors or the Trustee, including any Security
Registrar or Paying Agent as the owner and Holder of such Global Security for
all purposes whatsoever.  None of the
Company, the Trustee, the Security Registrar, the Paying Agent or any other
agent of the Company, the Guarantors or of the Trustee shall 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.  None of
the Company, the Guarantors, the Trustee, the Security Registrar, the Paying
Agent or any other agent of the Company or of the 


 


29

















 


Trustee shall have any responsibility or liability
to any person for any acts or omissions of the Depositary or its nominee in
respect of a Global Security, for the records of any such Depositary, including
records in respect of beneficial ownership interests in respect of such Global
Security, for any transactions between such Depositary and any participant or
indirect participant in such Depositary or between or among such Depositary,
any participant or indirect participant in such Depositary and/or any Holder or
owner of a beneficial interest in such Global Security, or for any transfers of
beneficial interests in any such Global Security.  Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee, the Security Registrar or the Paying
Agent or such agent from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or its nominee or impair, as
between the Depositary or its nominee and such owners of beneficial interests,
the operation of customary practices governing the exercise of the rights of
the Depositary or its nominee as Holder of any Global Security.


 


ARTICLE IV

SATISFACTION AND DISCHARGE


 


Section 401. 
Satisfaction and Discharge of Indenture.


 


This Indenture shall, upon Company Request, cease
to be of further effect with respect to any series of Securities specified in
such Company Request (except as to any surviving rights of registration of
transfer or exchange of Securities of such series herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when:


 


(1)     either


 


(A)   all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which have been
mutilated, destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or


 


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


 


(i)                  have become due and payable, or


 


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


 


30

















 


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


 


and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose money in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and premium, if any, and interest to the date
of such deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;


 


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


 


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


 


In the event there are Securities of two or more
series hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of such series as to which it is Trustee and
if the other conditions thereto are met.


 


Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the Trustee under Section 607
and, if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section 401, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.


 


Section 402. 
Application of Trust Money.


 


Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the applicable
series of 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 Persons entitled thereto, of the principal and
premium, if any, and interest for whose payment such money has been deposited
with the Trustee.  All money deposited
with the Trustee pursuant to Section 401 (and held by it or any Paying
Agent) for the payment of Securities subsequently converted into other property
shall be returned to the Company upon Company Request.  The Company may direct by a Company Order the
investment of any money 


 


31

















 


deposited with the Trustee pursuant to Section 401,
without distinction between principal and income, in (1) United States
Treasury securities with a maturity of one year or less or (2) a money
market fund that invests solely in short-term United States Treasury securities
(including money market funds for which the Trustee or an affiliate of the
Trustee serves as investment advisor, administrator, shareholder, servicing
agent and/or custodian or sub-custodian, notwithstanding that (a) the
Trustee charges and collects fees and expenses from such funds for services
rendered and (b) the Trustee charges and collects fees and expenses for
services rendered pursuant to this Indenture at any time) and from time to time
the Company may direct the reinvestment of all or a portion of such money in
other securities or funds meeting the criteria specified in clause (1) or (2) of
this Section 402.


 


ARTICLE V

REMEDIES


 


Section 501. 
Events of Default.


 


Except as may be otherwise provided pursuant to Section 301
for Securities of any series, an “Event of Default” means, whenever used herein
or in a Security issued hereunder with respect to Securities of any series, any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(1)     the
Company defaults in the payment of any installment of interest on any Security
of such series, and such default continues for a period of 30 days after such
payment becomes due and payable;


 


(2)     the
Company defaults in the payment of the principal of or premium, if any, on any
Security of such series when the same becomes due and payable, regardless of
whether such payment became due and payable at its Stated Maturity, upon
redemption, upon declaration of acceleration or otherwise;


 


(3)     the
Company defaults in the deposit of any sinking fund payment, when and as due by
the terms of a Security of such series;


 


(4)     any
Credit Party defaults in the performance of, or breaches, any of its covenants
and agreements in respect of any Security of such series contained in this
Indenture or in the Securities of such series (other than those referred to in
(1), (2) or (3) above), and such default or breach continues for a
period of 90 days after the notice specified below;


 


(5)     the
Company or any Guarantor (other than an Insignificant Guarantor), pursuant to
or within the meaning of the Bankruptcy Law (as defined below):


 


32

















 


(A)         commences a voluntary case or
proceeding;


 


(B)         consents to the entry of an order for
relief against it in an involuntary case or proceeding;


 


(C)         consents to the appointment of a
Custodian (as defined below) of it or for all or substantially all of its
property;


 


(D)         makes a general assignment for the
benefit of its creditors;


 


(E)          files a petition in bankruptcy or
answer or consent seeking reorganization or relief;


 


(F)          consents to the filing of such
petition or the appointment of or taking possession by a Custodian; or


 


(G)         takes any comparable action under any
foreign laws relating to insolvency;


 


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


 


(A)         is for relief against the Company or
any Guarantor (other than an Insignificant Guarantor) in an involuntary case,
or adjudicates the Company or any Guarantor (other than an Insignificant
Guarantor) insolvent or bankrupt;


 


(B)         appoints a Custodian of the Company or
any Guarantor (other than an Insignificant Guarantor) or for all or
substantially all of the property of the Company or any Guarantor (other than
an Insignificant Guarantor); or


 


(C)         orders the winding-up or liquidation of
the Company or any Guarantor (other than an Insignificant Guarantor) (or any
similar relief is granted under any foreign laws),


 


and the order or decree remains unstayed and in
effect for 90 days;


 


(7)     except
as otherwise provided herein, a Guarantee of any Guarantor (other than an
Insignificant Guarantor) ceases to be in full force and effect or is declared
to be null and void and unenforceable or such Guarantee is found to be invalid
or a Guarantor (other than an Insignificant Guarantor) denies its liability
under its Guarantee (other than by reason of release of such Guarantee in
accordance with the terms of this Indenture); or


 


(8)     any
other Event of Default provided with respect to Securities of such series
occurs.


 


33

















 


The term “Bankruptcy Law”
means Title 11, United States Code, or any similar Federal or state or foreign
law for the relief of debtors.  The term “Custodian” means any custodian, receiver, trustee, assignee,
liquidator or other similar official under any Bankruptcy Law.


 


A Default with respect to Securities of any series
under clause (4) of this Section 501 shall not be an Event of Default
until the Trustee (by written notice to the Company and the Guarantors) or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series (by written notice to the Company and the Guarantors
and the Trustee) gives notice of the Default and the Company and the Guarantors
does not cure such Default within the time specified in clause (4) after
receipt of such notice.  Such notice must
specify the Default, demand that it be remedied and state that such notice is a
“Notice of Default.”


 


The Trustee is not to be charged with knowledge of
any Default or Event of Default or knowledge of any cure of any Default or
Event of Default unless either (i) a Responsible Officer of the Trustee
with direct responsibility for the Indenture has actual knowledge of such
Default or Event of Default or (ii) written notice of such Default or
Event of Default has been given to the Trustee by the Company or any Holder.


 


Section 502. 
Acceleration of Maturity; Rescission and Annulment.


 


If an Event of Default with respect to Securities
of any series at the time Outstanding (other than an Event of Default specified
in Section 501(5) or (6) with respect to the Company) occurs and
is continuing, then in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of such
series may declare the principal amount of all the Securities of such series
(or, if any Securities of such series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified by
the terms thereof), together with any accrued and unpaid interest thereon, to
be due and payable immediately, by a notice in writing to the Company and the
Guarantors (and to the Trustee if given by Holders), and upon any such
declaration, such principal amount (or specified amount), together with any
accrued and unpaid interest thereon, shall become immediately due and
payable.  If an Event of Default
specified in Section 501(5) or (6) with respect to the
Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of such series (or, in the case of any Security of such
series which specifies an amount to be due and payable thereon upon
acceleration of the Maturity thereof, such amount as may be specified by the
terms thereof), together with any accrued and unpaid interest thereon, shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.  Upon payment of such amount, all obligations
of the Company in respect of the payment of principal and interest of the
Securities of such series shall terminate.


 


34

















 


Except as may otherwise be provided pursuant to Section 301
for all or any specific Securities of any series, at any time after such a
declaration of acceleration with respect to the Securities of any series has
been made and before a judgment or decree for payment of the money due based on
such acceleration has been obtained by the Trustee as hereinafter in this Article V
provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series, by written notice to the Company, the
Guarantors and the Trustee, may rescind and annul such declaration and its
consequences if:


 


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


 


(A)     all overdue interest on all Securities of
such series,


 


(B)      the principal of and premium, if any, on
any Securities of such series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or rates
prescribed therefor in the Securities of such series,


 


(C)      to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and


 


(D)     all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and


 


(2)     all
Events of Default with respect to Securities of such series, other than the
nonpayment of the principal of Securities of such series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 512.


 


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


 


Section 503. 
Collection of Indebtedness and Suits for
Enforcement by Trustee.


 


The Company covenants that if (1) default is
made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or (2) default
is made in the payment of the principal of or premium, if any, on any Security
at the Maturity thereof, it will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and premium, if any, and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient


 


35






 












 


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


 


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


 


Section 504. 
Trustee May File Proofs of Claim.


 


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company, any Guarantor
or any other obligor upon the Securities or the property of the Company, any
Guarantor or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company or any Guarantor
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise


 


(1)      to
file and prove a claim for the whole amount of principal and premium, if any,
and interest owning and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and


 


(2)      to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


 


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by the Holder to make such payments to the
Trustee and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and for any other amounts due the Trustee
under Section 607.


 


No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of 


 


36

















 


the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors’ or other similar committee.


 


Section 505. 
Trustee May Enforce Claims Without Possession
of Securities.


 


All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
any predecessor Trustee under Section 607, its agents and counsel, be for
the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.


 


Section 506. 
Application of Money Collected.


 


Any money collected by the Trustee pursuant to this
Article V, and any money or other property distributable in respect of the
Company’s obligations under this Indenture after the occurrence of an Event of
Default, shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal or premium, if any, or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:


 


FIRST: To the payment of all amounts due the
Trustee (including any predecessor Trustee) under Section 607;


 


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


 


THIRD: To the payment of the remainder, if
any, to the Company or the Guarantors.


 


Section 507. 
Limitation on Suits.


 


Except as otherwise provided in Section 508,
no Holder of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver, assignee, trustee, liquidator or sequestrator (or
similar official) or for any other remedy hereunder, unless:


 


37

















 


(1)      Such
Holder has previously given written notice to the Trustee of a continuing Event
of Default, specifying an Event of Default with respect to the Securities of
such series;


 


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


 


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


 


(4)      the
Trustee has failed to institute any such proceeding for 60 days after its
receipt of such notice, request and offer of indemnity; and


 


(5)      no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal
amount of the Outstanding Securities of such series;


 


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


 


Section 508. 
Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert Securities.


 


Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any, and,
subject to Section 307, interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or date for repayment, as the case may be,
and, if the terms of such Security so provide, to convert such Security in
accordance with its terms) and to institute suit for the enforcement of any
such payment and, if applicable, any such right to convert, and such rights
shall not be impaired without the consent of such Holder.


 


Section 509. 
Rights and Remedies Cumulative.


 


Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law 


 


38

















 


or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.


 


Section 510. 
Delay or Omission Not Waiver.


 


No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article V
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.


 


Section 511. 
Control by Holders.


 


The Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of such series; provided that


 


(1)      such
direction shall not be in conflict with any rule of law or with this
Indenture and shall not involve the Trustee in any personal liability, and


 


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


 


Before proceeding to exercise any right or power
hereunder at the direction of the Holders, the Trustee shall be entitled to
receive from such Holders security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.


 


Section 512. 
Waiver of Past Defaults.


 


The Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
Default hereunder with respect to such series and its consequences, except a
Default


 


(1)      in
the payment of the principal of or premium, if any, or interest on any Security
of such series, or


 


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


 


39

















 


provided
that there had been paid or deposited with the Trustee a sum sufficient to pay
all amounts due to the Trustee and to reimburse the Trustee for any and all
fees, expenses and disbursements advanced by the Trustee, its agents and its
counsel incurred in connection with such Default or Event of Default.


 


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 513. 
Undertaking for Costs.


 


In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess reasonable costs against any such party litigant, in the manner and
to the extent provided in the Trust Indenture Act; provided
that neither this Section 513 nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company, any Guarantor or the Trustee,
a suit by a Holder under Section 508, or a suit by Holders of more than
10% in aggregate principal amount of the Outstanding Securities.


 


Section 514. 
Waiver of Usury, Stay or Extension Laws.


 


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


 


Section 515. 
Restoration of Rights and Remedies.


 


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


 


40

















 


ARTICLE VI

THE TRUSTEE


 


Section 601. 
Certain Duties and Responsibilities of Trustee.


 


(1)      Except
during the continuance of an Event of Default with respect to any series of
Securities,


 


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


 


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


 


(2)      In
case an Event of Default with respect to any series of Securities has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture with respect to the Securities of such series,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.


 


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


 


(A)         this Section 601(3) shall not
be construed to limit the effect of Section 601(1) or Section 601(4);


 


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


 


(C)         the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series, determined as
provided in Sections 101, 104 and 511, relating to the time, method and place
of conducting 


 


41

















 


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.


 


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


 


(5)      Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 601.


 


Section 602. 
Notice of Defaults.


 


If a Default occurs with respect to Securities of
any series and is continuing and written notice of such Default has been
received by a Responsible Officer of the Trustee at the Corporate Trust Office
of the Trustee, the Trustee shall give to each Holder of Securities of such
series notice of Default within 90 days after such written notice is received
by such Responsible Officer.  Except in
the case of a Default in payment of principal of or interest on any Security,
the Trustee may withhold notice if and so long as a committee of Responsible
Officers in good faith determines that withholding such notice is in the
interests of Holders of Securities of such series.


 


Section 603. 
Certain Rights of Trustee.


 


Subject to the provisions of Section 601:


 


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


 


(2)      any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the
member or members of the Company or board of managers of the Company, as the
case may be, shall be sufficiently evidenced by a Company Resolution thereof;


 


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


 


42

















 


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


 


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


 


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


 


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


 


(8)      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 to its agents;


 


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


 


(10)    anything
in this Indenture notwithstanding, in no event shall the Trustee be responsible
or liable for special, indirect, punitive 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;


 


(11)    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, 


 


43

















 


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);


 


(12)      the
Trustee shall not be deemed to have notice of any Default or Event of Default
unless written notice of such Default or Event of Default, as the case may be,
has been received by a Responsible Officer of the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this
Indenture;


 


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


 


(14)      the
permissive right of the Trustee to take or refrain from taking action hereunder
shall not be construed as a duty.


 


Section 604. 
Not Responsible for Recitals or Issuance of
Securities.


 


The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken
as the statements of the Company and the Guarantors, as the case may be, and
the Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities or the
Guarantees.  The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.


 


Section 605. 
May Hold Securities.


 


The Trustee, any Paying Agent, any Security Registrar
or any other agent of the Company or the Guarantors, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.


 


Section 606. 
Money Held in Trust.


 


Money held by the Trustee in trust hereunder shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law.  The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.


 


44

















 


Section 607. 
Compensation and Reimbursement.


 


The Company and each Guarantor jointly and
severally agrees:


 


(1)      to
pay to the Trustee from time to time such reasonable compensation as shall be
agreed to in writing between the parties hereto for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);


 


(2)      except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel and all Persons not regularly in its
employ), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith, and the
Trustee shall provide the Company reasonable notice of any expenditure not in
the ordinary course of business; and


 


(3)      to
indemnify each of the Trustee or any predecessor Trustee and their officers,
agents, directors and employees for, and to hold them harmless against, any and
all loss, damage, claims, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with this Indenture, the
Securities and the transactions contemplated hereby and thereby, including the
acceptance or administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim (whether
asserted by the Company, or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, or in connection with enforcing the provisions of this Section.


 


In addition to, but without prejudice to its other
rights under this Indenture, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 501(5) or
(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.


 


“Trustee” for purposes of this Section shall
include any predecessor Trustee; provided, however,
that the negligence, willful misconduct or bad faith of any Trustee hereunder
shall not affect the rights of any other Trustee hereunder.


 


As security for the performance of the obligations
of the Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by it hereunder for
any amount owing it or any predecessor Trustee pursuant to this Section 607,
except with respect to funds held in trust for the benefit of the Holders of
particular Securities for the payment of principal of and premium, if any, or
interest.


 


45






 












 


The provisions of this Section 607 shall
survive the satisfaction and discharge of the Securities, the termination for
any reason of this Indenture and the resignation or removal of the Trustee.


 


Section 608. 
Conflicting Interests.


 


If the Trustee has or shall acquire a conflicting
interest within the meaning of Section 310(b) of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.


 


To the extent permitted by the Trust Indenture Act,
the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under this Indenture with respect to Securities of more than
one series.


 


Section 609. 
Corporate Trustee Required; Eligibility.


 


There shall at all times be one (and only one)
Trustee hereunder with respect to the Securities of each series, which may be
Trustee hereunder for Securities of one or more other series.  Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York or any other major city in the
United States that is acceptable to the Company.  If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section 609
and to the extent permitted by the Trust Indenture Act, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent annual report of condition so
published.  If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section 609, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article VI.


 


Section 610. 
Resignation and Removal; Appointment of Successor.


 


No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VI shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 611.


 


The Trustee or any successor hereafter appointed
may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. 
If the instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.


 


46

















 


The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such series, upon
written notice delivered to the Trustee and to the Company.  If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.


 


If at any time:


 


(1)      the
Trustee shall fail to comply with Section 608 after written request
therefor by the Company, the Guarantors or any Holder who has been a bona fide Holder of a Security for at least six months, or


 


(2)      the
Trustee shall cease to be eligible under Section 609 and shall fail to
resign after written request therefor by the Company, the Guarantors or any
such Holder, or


 


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


 


then, in any such case, (A) the Company or the
Guarantors may remove the Trustee with respect to all Securities or (B) subject
to Section 513, Holders of 10% in aggregate principal amount of Securities
of any series who have been bona fide
Holders of such Securities for at least six months may, on behalf of themselves
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.


 


If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company or
the Guarantors shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 611.  If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, 


 


47

















 


forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company or the
Guarantors.  If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company the Guarantors or the Holders and accepted appointment in the manner
required by Section 611, Holders of 10% in aggregate principal amount of
Securities of any series who have been bona fide Holders of Securities of such
series for at least six months may, on behalf of themselves and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.


 


The Company or the Guarantors shall give notice of
each resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the
manner provided in Section 106. 
Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.


 


Section 611. 
Acceptance of Appointment by Successor.


 


In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company, the Guarantors
and the retiring Trustee a written instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee, but, on the request of the Company, the Guarantors or
the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver a written instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder subject nonetheless to the
lien provided for in Section 607.


 


In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the Guarantors, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series 


 


48

















 


as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to
or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, the Guarantors or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates subject nonetheless to
the lien provided for in Section 607.


 


Upon request of any such successor Trustee, the
Company and the Guarantors shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.


 


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


 


Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid, to
the Holders, as their names and addresses appear upon the Security
Register.  If the Company fails to
transmit such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.


 


Section 612. 
Merger, Conversion, Consolidation or Succession to
Business.


 


Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder; provided that such Person shall be otherwise qualified and
eligible under this Article VI, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.  In case any Securities shall have been
authenticated, but not delivered, by the 


 


49

















 


Trustee then in office, any successor by merger,
conversion, consolidation or sale to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities; and in
case at that time any Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and
in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate
of the Trustee shall have.


 


Section 613. 
Preferential Collection of Claims Against Company.


 


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


 


Section 614. 
Trustee’s Application for Instructions from the
Company.


 


Any application by the Trustee for written
instructions from the Company may, at the option of the Trustee, set forth in
writing any action proposed (to the extent not provided for in this Indenture)
to be taken or omitted by the Trustee under this Indenture and the date on
and/or after which such action shall be taken or such omission shall be effective.  The Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than 10 Business Days after the date any officer
of the Company actually receives such application, unless any such officer
shall have consented in writing to any earlier date) unless prior to taking any
such action (or the effective date in the case of an omission), the Trustee
shall have received written instructions in response to such application
specifying the action to be taken or omitted.


 


ARTICLE VII

HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE, THE COMPANY AND THE GUARANTORS


 


Section 701. 
Company to Furnish Trustee Names and Addresses of
Holders.


 


If the Trustee is not the Security Registrar, the
Company shall cause the Security Registrar to furnish to the Trustee, in
writing at least five Business 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 Securities of each series.


 


50

















 


Section 702. 
Preservation of Information; Communications to
Holders.


 


The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and
the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar.  The Trustee may
dispose of any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.


 


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


 


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


 


Section 703. 
Reports by Trustee.


 


The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.


 


A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange
and automated quotation system, if any, upon which any Securities are listed,
with the Commission (if accepted for filing by the Commission) and the
Company.  The Company will notify the
Trustee when any Securities are listed on any stock exchange or automated
quotation system or delisted therefrom.


 


Section 704. 
Reports by the Company and the Guarantors.


 


Delivery of reports, information and documents to
the Trustee is for informational purposes only and shall not constitute a
representation or warranty as to the accuracy or completeness of the reports,
information and documents.  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 or the Guarantors’ compliance with any of their covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates of the Company).


 


51

















 


ARTICLE VIII

CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS


 


Section 801. 
Company and Guarantors May Merge or Transfer
Assets on Certain Terms.


 


(a)           None
of the Credit Parties shall be a party to a Substantially All Merger or
participate in a Substantially All Sale, unless:


 


(1)           such Credit Party is the surviving
Person, or the Person formed by or surviving such Substantially All Merger or
to which such Substantially All Sale has been made (the “Successor
Person”) is organized under the laws of the United States or any
state thereof, or, other than with respect to the Company, Belgium, Bermuda,
Canada, Cayman Islands, France, Germany, Gibraltar, Ireland, Italy,
Luxembourg, the Netherlands, Switzerland, the United Kingdom or British Crown
Dependencies, a member country of the Organisation for Economic Co-operation
and Development or any political subdivision of any of the foregoing (together
with the United States or any state thereof, the “Permitted Jurisdictions”),
and has expressly assumed by supplemental indenture all of the obligations of
such Credit Party under this Indenture;


 


(2)           immediately after giving effect to
such transaction, no Default or Event of Default has occurred and is
continuing; and


 


(3)           the Company delivers to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that such
transaction and any supplemental indenture relating thereto comply with this
Indenture and that all conditions precedent provided for in this Indenture
relating to such transaction have been complied with.


 


(b) For as long as any Securities of any
series under this Indenture remain outstanding, all equity and voting interests
in the Company shall be owned directly or indirectly by one or more Guarantors
and each of the Credit Parties must be organized under the laws of a Permitted
Jurisdiction.


 


Section 802. 
Successor Person Substituted.


 


Upon the consummation of a transaction contemplated
by and consummated in accordance with Section 801, the Successor Person
shall succeed to, and be substituted for, and may exercise every right and
power of, the applicable Credit Party under this Indenture, with the same
effect as if such Successor Person had been an original party to this
Indenture, and, except in the case of a lease, the applicable Credit Party
shall be released from all of its 


 


52

















 


liabilities and obligations under this Indenture
and the Securities (including the Guarantees).


 


ARTICLE IX

SUPPLEMENTAL INDENTURES


 


Section 901. 
Supplemental Indentures Without Consent of Holders.


 


Without the consent of any Holders, the Company,
the Guarantors and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:


 


(1)      to
add to the covenants for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or power conferred
upon the Company or any Guarantor hereunder, under any indenture supplemental
hereto or under any series of Securities;


 


(2)      to
evidence the succession of another Person to the Company or any Guarantor, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company or such Guarantor pursuant
to Article VIII;


 


(3)      to
add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such additional Events of Default are to be
for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the
benefit of such series);


 


(4)      to
add new Guarantors;


 


(5)      to
provide for the release of any Guarantor in accordance with this Indenture;


 


(6)      to
secure the Securities;


 


(7)      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, pursuant to the requirements of Section 611; or


 


(8)      to
provide for the issuance of additional Securities of any series;


 


53

















 


(9)      to
establish the form or terms of Securities of any series as permitted by
Sections 201 and 301;


 


(10)    to
comply with the rules of any applicable Depositary;


 


(11)    to
add to or change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities in
uncertificated form;


 


(12)    to
add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities; provided that
any such addition, change or elimination (A) shall neither (i) apply
to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (ii) modify
the rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no Security described in
clause (i) Outstanding;


 


(13)    to
cure any ambiguity, to correct or supplement any provision of this Indenture
which may be defective or inconsistent with any other provision herein; and


 


(14)    to
change any other provision contained in the Securities of any series or under
this Indenture; provided that such action
pursuant to this clause (14) shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.


 


Section 902. 
Supplemental Indentures With Consent of Holders.


 


With the consent of the Holders of not less than a
majority in aggregate 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 for Securities), by Act of said
Holders delivered to the Company, the Guarantors and the Trustee, the Company,
the Guarantors and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
of such series affected thereby:


 


(1)      change
the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security;


 


(2)      reduce
the principal amount of any Security or reduce the amount of the principal of
an Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 503, or reduce the rate of or extend the time of payment of
interest on any Security;


 


54

















 


(3)      reduce
any premium payable upon the redemption of or change the date on which any
Security may or must be redeemed;


 


(4)      change
the coin or currency in which the principal of or premium, if any, or interest
on any Security is payable;


 


(5)      impair
the right of any Holder to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date);


 


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


 


(7)      modify
any of the provisions of this Section 902, Section 512 or Section 1005,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant changes in
this Section 902 and Section 1005, or the deletion of this proviso,
in accordance with the requirements of Section 611 and Section 901(7);


 


(8)      if
the Securities of any series are convertible into or for any other securities
or property of the Company, make any change that adversely affects in any
material respect the right to convert any Security of such series (except as
permitted by Section 901) or decrease the conversion rate or increase the
conversion price of any such Security of such series, unless such decrease or
increase is permitted by the terms of such Security;


 


(9)      subordinate
the Securities of any series or any Guarantee of a Guarantor in respect thereof
to any other obligation of the Company or such Guarantor;


 


(10)    modify
the terms of any Guarantee in a manner adverse to the Holders of Securities of
a series; or


 


(11)    modify
clauses (1) through (10) above.


 


A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.


 


55






 












 


It shall not be necessary for any Act of Holders
under this Section 902 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.


 


Section 903.  Execution of Supplemental Indentures.


 


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 entitled to receive, in addition to the documents provided by Section 102,
and, subject to Section 601, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent in
this Indenture to the execution of such supplemental indenture, if any, have
been complied with; provided, however, that no such Opinion of
Counsel shall be required in the case of any supplemental indenture executed
and delivered concurrently with the original execution and delivery of this
Indenture.  The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.


 


Section 904. 
Effect of Supplemental Indentures.


 


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


 


Section 905. 
Reserved.


 


Section 906. 
Notice of Supplemental Indenture; Reference in
Securities to Supplemental Indentures.


 


After a supplemental indenture under Section 901
and 902 becomes effective, the Company shall mail to the Trustee a notice
briefly describing such supplemental indenture or a copy of such supplemental
indenture and the Trustee shall on behalf of the Company and at the expense of
the Company mail such notice or supplemental indenture to Holders affected
thereby.  Any failure of the Trustee to
mail such notice, or any defect therein, or any failure of the Trustee to mail
such supplemental indenture, shall not in any way impair or affect the validity
of any such supplemental indenture.


 


Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article IX
may, and shall if required by the Trustee, bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by


 


56

















 


the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.


 


ARTICLE X

COVENANTS


 


Section 1001. 
Payment of Principal, Premium, if any, and
Interest.


 


The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually pay the principal of
and premium, if any, and interest on the Securities of such series in accordance
with the terms of the Securities and this Indenture.  Principal and interest shall be considered
paid on the date due if, on or before 11:00 a.m. (New York City time) on
such date, the Trustee or the Paying Agent (or, if the Company or any Subsidiary
of the Partnership is the Paying Agent, the segregated account or separate
trust fund maintained by the Company or such Subsidiary pursuant to Section 1003)
holds in accordance with this Indenture money sufficient to pay all principal
and interest then due.


 


The Company shall pay interest on overdue principal
at the rate specified therefor in the Securities, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful as
provided in Section 307.


 


Notwithstanding anything to the contrary contained
in this Indenture, the Company, the Guarantors or the Paying Agent may, to the
extent it is required to do so by law, deduct or withhold income or other
similar taxes imposed by the United States of America or other domestic or
foreign taxing authorities from principal or interest payments hereunder.


 


Section 1002. 
Maintenance of Office or Agency.


 


The Company will maintain in each Place of Payment
for any series of Securities an office or agency where Securities of such series
may be presented or surrendered for payment, where Securities of such series
may be surrendered for registration of transfer or exchange, where Securities
may be surrendered for conversion, and where notices and demands to or upon the
Company in respect of the Securities of such series and this Indenture may be
served.  The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency.  If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.  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 other offices or agencies where the Securities of one or more
series may be presented or


 


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surrendered for any or all such purposes and may
from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment 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
location of any such other office or agency.


 


With respect to any Global Security, and except as
otherwise may be specified for such Global Security as contemplated by Section 301,
the Corporate Trust Office of the Trustee shall be the Place of Payment where
such Global Security may be presented or surrendered for payment or for
registration of transfer or exchange, or where successor Securities may be
delivered in exchange therefor; provided, however,
that any such payment, presentation, surrender or delivery effected pursuant to
the Applicable Procedures of the Depositary for such Global Security shall be
deemed to have been effected at the Place of Payment for such Global Security
in accordance with the provisions of this Indenture.


 


Section 1003. 
Money for Securities Payments to Be Held in Trust.


 


If the Company shall at any time act as Paying
Agent with respect to any series of Securities, it will, on or before each due
date for the principal of or premium, if any, or interest on any of the
Securities of such series, segregate and hold in trust for the benefit of the
Holders of such Securities a sum sufficient to pay the principal and premium,
if any, and interest so becoming due until such sums shall be paid to such
Holders or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.


 


Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, no later than 11:00 a.m.
(New York City time) on each due date for the principal of or premium, if any,
or interest on any Securities of such series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held in trust for the Holders of
such Securities entitled to the same, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.


 


The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 1003, that such Paying Agent
shall hold in trust for the benefit of Holders or the Trustee all money held by
such Paying Agent for the payment of principal of or interest on the Securities
and shall notify the Trustee in writing of any default by the Company in making
any such payment.


 


The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee


 


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upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.


 


Subject to any applicable abandoned property law,
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 or premium, if any, or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.


 


Section 1004. 
Statement by Officers as to Default.


 


The Company shall deliver to the Trustee within 120
days after the end of each fiscal year of the Company ending after the date
hereof an Officers’ Certificate of the Company and one of the two Officers
signing must be the Company’s principal executive officer, principal financial
officer or principal accounting officer, stating whether or not, to the best
knowledge of such Officer, the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture
applicable to it (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which such Officer may
have knowledge.


 


The Company shall deliver to the Trustee, as soon
as possible and in any event within 30 days after the Company becomes aware of
the occurrence of any Default or Event of Default an Officers’ Certificate
setting forth the details of such Default or Event of Default, its status and
the actions which the Company is taking or proposes to take with respect
thereto.


 


Section 1005. 
Waiver of Certain Covenants.


 


Except as otherwise specified as contemplated by Section 301
for Securities of such series, the Company or the Guarantors, as the case may
be, may, with respect to the Securities of any series, omit in any particular
instance to comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 301(18), Section 901(1) or
Section 901(12) for the benefit of the Holders of such series or in Article VIII,
if before the time for such compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term,


 


59

















 


provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company or the Guarantors, as the case may be, and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.


 


ARTICLE XI

REDEMPTION OF SECURITIES


 


Section 1101. 
Applicability of Article.


 


Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for such
Securities) in accordance with this Article XI.


 


Section 1102. 
Election to Redeem; Notice to Trustee.


 


The election of the Company to redeem any
Securities shall be evidenced by a Company Resolution or an Officers’
Certificate of the Company or in another manner specified as contemplated by Section 301
for such Securities.  In case of any
redemption at the election of the Company of the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 15 days prior to the date any notice of a redemption is to be
given to the Holders pursuant to Section 1104 (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed.  In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate of the Company evidencing compliance
with such restriction.


 


Section 1103.  Selection by Trustee of Securities to Be
Redeemed.


 


If less than all the Securities of any series are
to be redeemed (unless all the Securities of such series and of a specified
tenor are to be redeemed or unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate, including by lot or pro rata,
and which may provide for the selection for redemption of a portion of the
principal amount of any Security of such series; provided
that the unredeemed portion of the principal amount of any Security shall be in
an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.  If less
than all the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected


 


60

















 


not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance with the preceding
sentence.


 


If any Security selected for partial redemption is
converted in part before termination of the conversion right with respect to
the portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for
redemption.  Securities which have been
converted during a selection of securities to be redeemed shall be treated by
the Trustee as Outstanding for the purpose of such selection.


 


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


 


The provisions of the three preceding paragraphs
shall not apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in part.  In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.


 


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


 


Section 1104. 
Notice of Redemption.


 


Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the Redemption Date (or within such period as otherwise specified as
contemplated by Section 301 for Securities of a series), to each Holder of
Securities to be redeemed, at such Holder’s address appearing in the Security
Register.


 


All notices of redemption shall identify the
Securities to be redeemed and shall state:


 


(1)      the
Redemption Date;


 


(2)      the
Redemption Price (or the method of calculating such price);


 


(3)      if
less than all the Outstanding Securities of any series consisting of more than
a single Security are to be redeemed, the identification (and, in the case of
partial redemption of any such Securities, the respective principal amounts) of
the particular Securities to be redeemed and, if less than all the Outstanding


 


61

















 


Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the particular Security to
be redeemed;


 


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


 


(5)      the
place or places where each such Security is to be surrendered for payment of the
Redemption Price;


 


(6)      for
any Securities that by their terms may be converted, the terms of conversion,
the date on which the right to convert the Security to be redeemed will
terminate and the place or places where such Securities may be surrendered for
conversion;


 


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


 


(8)      if
applicable, the CUSIP, ISIN or any similar numbers of the Securities of
such series; provided, however, that no
representation will be made as to the correctness or accuracy of the CUSIP, ISIN
or any similar number, if any, listed in such notice or printed on the
Securities.


 


Notice of redemption of Securities to be redeemed
at the election of the Company shall be given by the Company or, at the Company’s
request (which may be rescinded or revoked at any time prior to the time at
which the Trustee shall have given such notice to the Holders), by the Trustee
in the name and at the expense of the Company. 
The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice.  In any case, failure to
give such notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Securities.


 


Section 1105. 
Deposit of Redemption Price.


 


By no later than 11:00 a.m. (New York City
time) on the business day prior to any Redemption Date, the Company shall
deposit or cause to be deposited with the Trustee or with a Paying Agent (or,
if any of the Credit Parties is acting as Paying Agent, such Credit Party will
segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date or the Securities of the series provide
otherwise) accrued interest on, all the Securities which are to be redeemed on
that date, other than Securities or portions of Securities called for
redemption which are owned by any of the Credit Parties and have been delivered
by such Credit Party to the Trustee for cancellation.  All money, if any, earned on funds held by
the Paying Agent shall be remitted to the Company.  In addition, the Paying Agent shall promptly
return to the Company any money deposited with the Paying Agent by the Company
in excess of the amounts necessary to pay


 


62

















 


the Redemption Price of, and accrued interest, if
any, on, all Securities to be redeemed.


 


If any Security called for redemption is converted,
any money deposited with the Trustee or with any Paying Agent or so segregated
and held in trust for the redemption of such Security shall (subject to any
right of the Holder of such Security or any Predecessor Security to receive
interest as provided in the last paragraph of Section 307 or in the terms
of such Security) be paid to the Company upon Company Request or, if then held
by the Company, shall be discharged from such trust.


 


Section 1106. 
Securities Payable on Redemption Date.


 


Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to bear
interest.  Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together, if applicable, with
accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 307;
provided further that, unless otherwise
specified as contemplated by Section 301, if the Redemption Date is after
a Regular Record Date and on or prior to the Interest Payment Date, the accrued
and unpaid interest shall be payable to the Holder of the redeemed Securities
registered on the relevant Regular Record Date.


 


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


 


Section 1107. 
Securities Redeemed in Part.


 


Any Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or such Holder’s attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any authorized denomination
as requested by such Holder, in principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.


 


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ARTICLE XII

SINKING FUNDS


 


Section 1201. 
Applicability of Article.


 


The provisions of this Article XII shall be
applicable to any sinking fund for the retirement of Securities of any series
except as otherwise specified as contemplated by Section 301 for such
Securities.


 


The minimum amount of any sinking fund payment
provided for by the terms of any series of Securities is herein referred to as
a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an
“optional sinking fund payment.” If provided for by the terms of any series of
Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. 
Each sinking fund payment shall be applied to the redemption of
Securities of the series as provided for by the terms of such Securities.


 


Section 1202. 
Satisfaction of Sinking Fund Payments with
Securities.


 


The Company (1) may deliver Outstanding
Securities of a series (other than any previously called for redemption) and (2) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that
the Securities to be so credited have not been previously so credited.  The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.


 


Section 1203. 
Redemption of Securities for Sinking Fund.


 


Not less than 60 days (or such shorter period as
shall be satisfactory to the Trustee) prior to each sinking fund payment date
for any Securities, the Company will deliver to the Trustee an Officers’
Certificate of the Company specifying the amount of the next ensuing sinking
fund payment for such Securities pursuant to the terms of such Securities, 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
Securities pursuant to Section 1202 and will also deliver to the Trustee
any Securities to be so delivered.  Not
less than 30 days prior to 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 1103 and cause notice of the redemption
thereof to be given in the name of and at


 


64

















 


the expense of the Company in the manner provided
in Section 1104.  Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.


 


ARTICLE XIII

DEFEASANCE AND COVENANT DEFEASANCE


 


Section 1301. 
Company’s Option to Effect Defeasance or Covenant
Defeasance.


 


Unless otherwise provided as contemplated by Section 301,
Sections 1302 and 1303 shall apply to all Securities and each series of
Securities, denominated in U.S. dollars and bearing interest at a fixed rate,
in accordance with any applicable requirements provided pursuant to Section 301
and upon compliance with the conditions set forth below in this Article XIII;
and the Company may elect, at its option at any time, to have Section 1302
and Section 1303 applied to any Securities or any series of Securities,
designated pursuant to Section 301 as being defeasible pursuant to such Section 1302
or Section 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth
below in this Article XIII.  Any
such election shall be evidenced by a Company Resolution, Officers’ Certificate
of the Company or in another manner specified as contemplated by Section 301
for such Securities.


 


Section 1302. 
Defeasance and Discharge.


 


Upon the Company’s exercise of its option, if any,
to have this Section 1302 applied to any Securities or any series of
Securities, or if this Section 1302 shall otherwise apply to any
Securities or any series of Securities, the Company and the Guarantors shall be
deemed to have been discharged from their respective obligations with respect
to such Securities and related Guarantees as provided in this Section 1302
on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called “Defeasance”).  For this purpose, such Defeasance means that
each of the Company and the Guarantors shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and Guarantees and to
have satisfied all its other obligations under such Securities and Guarantees
and this Indenture insofar as such Securities and Guarantees are concerned (and
the Trustee, at the expense of the Company or the Guarantors, as the case may
be, shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to receive, solely
from the trust fund described in Section 1304 and as more fully set forth
in such Section 1305, payments in respect of the principal of and premium,
if any, and interest on such Securities when payments are due, (2) the
Company’s obligations with respect to such Securities and the Guarantors’
obligations with respect to such Guarantees under Sections 304, 305, 306, 1002
and 1003, (3) the


 


65
















 


rights, powers, trusts, duties and immunities of
the Trustee hereunder and (4) this Article XIII.  Subject to compliance with this Article XIII,
the Company or the Guarantors may exercise their option, if any, to have this Section 1302
applied to the Securities of any series and the related Guarantees
notwithstanding the prior exercise of its option, if any, to have Section 1303
applied to such Securities and Guarantees.


 


Section 1303. 
Covenant Defeasance.


 


Upon the Company’s exercise of its option, if any,
to have this Section 1303 applied to any Securities or any series of
Securities, or if this Section 1303 shall otherwise apply to any
Securities or any series of Securities, (1) the Company and the Guarantors
shall be released from their respective obligations under Section 801 and
any covenants provided pursuant to Section 301(18), Section 901(1) or
Section 901(12) for the benefit of the Holders of such Securities and (2) the
occurrence of any event specified in Section 501(4) and Section 501(8) shall
be deemed not to be or result in an Event of Default, in each case with respect
to such Securities and Guarantees as provided in this Section 1303 on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called “Covenant Defeasance”).  For this purpose, such Covenant Defeasance
means that, with respect to such Securities and Guarantees, each of the Company
and the Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities and Guarantees shall be unaffected thereby.


 


Section 1304.  Conditions to Defeasance or Covenant
Defeasance.


 


The following shall be the conditions to the
application of Section 1302 or 1303 to any Securities or any series of
Securities:


 


(1)      The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 609
and agrees to comply with the provisions of this Article XIII applicable
to it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide money
in an amount, or (C) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and premium, if any,
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this


 


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Indenture and such Securities.  As used herein, “U.S.
Government Obligation” means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government Obligation
which is so specified and held; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.


 


(2)      In
the event of an election to have Section 1302 apply to any Securities or
any series of Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (B) since
the date of this Indenture, there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.


 


(3)      In
the event of an election to have Section 1303 apply to any Securities or
any series of Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the
deposit and Covenant Defeasance to be effected with respect to such Securities
and will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.


 


(4)      The
Company shall have delivered to the Trustee an Officers’ Certificate of the
Company to the effect that neither such Securities nor any other Securities of
the same series, if then listed on any securities exchange, will be delisted as
a result of such deposit.


 


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(5)      No
Default or Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, insofar as Section 501(5) or Section 501(6) are
concerned, at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until after such 90th day).


 


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


 


(7)      The
Company shall have delivered to the Trustee an Officers’ Certificate of the
Company and an Opinion of Counsel, each stating that all conditions precedent
with respect to such Defeasance or Covenant Defeasance have been complied with
(in each case, subject to the satisfaction of the condition in clause (5)).


 


Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article XI.


 


Section 1305.  Deposited Money and U.S. Government
Obligations to Be Held in Trust; Miscellaneous Provisions.


 


Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section 1305 and Section 1306, the Trustee and any such other
trustee are referred to collectively as the “Trustee”)
pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Securities, of all sums due and to become
due thereon in respect of principal and premium, if any, and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.


 


The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1304 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities; provided that the Trustee shall be
entitled to charge any such tax, fee or other charge to such Holder’s account.


 


Anything in this Article XIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1304 with respect to any Securities which are in
excess of the amount thereof


 


68

















 


which would then be required to be deposited to
effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.


 


Section 1306. 
Reinstatement.


 


If the Trustee or the Paying Agent is unable to
apply any money in accordance with this Article XIII with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities and Guarantees
from which the Company and the Guarantors have been discharged or released
pursuant to Section 1302 or 1303 shall be revived and reinstated as though
no deposit had occurred pursuant to this Article XIII with respect to such
Securities and Guarantees, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities and Guarantees in accordance with this Article XIII; provided, however, that (a) if the Company or the
Guarantors makes any payment of principal of or premium, if any, or interest on
any such Security following such reinstatement of its obligations, the Company
or the Guarantors, as the case may be, shall be subrogated to the rights, if
any, of the Holders of such Securities to receive such payment from the money
so held in trust and (b) unless otherwise required by any legal proceeding
or any order or judgment of any court or governmental authority, the Trustee or
Paying Agent shall return all such money and U.S. Government Obligations to the
Company or the Guarantors, as the case may be, promptly after receiving a
written request therefor at any time, if such reinstatement of the obligations
of the Company or the Guarantors, as the case may be, has occurred and
continues to be in effect.


 


ARTICLE XIV

GUARANTEE OF SECURITIES


 


Section 1401. 
Guarantee.


 


Each Guarantor hereby jointly and severally and
fully and unconditionally guarantees to each Holder of a Security authenticated
and delivered by the Trustee hereunder, and to the Trustee on behalf of each
such Holder, the due and punctual payment in full of the principal of and premium,
if any, and interest on such Security and all other amounts payable by the
Company under the Indenture when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on such Security (collectively, the “Obligations”), in accordance with the terms of such Security
and this Indenture.  If the Company shall
fail to pay when due any Obligations, for whatever reason, each Guarantor shall
be jointly and severally obligated to pay in cash the same promptly.  An Event of Default under this Indenture or
the Security of any series shall entitle the Holders of such Securities


 


69

















 


to accelerate the Obligations of the Guarantors
hereunder in the same manner and to the same extent as the Obligations of the
Company.


 


Section 1402. 
Additional Guarantors.


 


The Company and each Guarantor shall cause each New
KKR Entity (other than a Non-Guarantor Entity) to become a Guarantor pursuant
to this Indenture and provide a Guarantee in respect of the Securities.


 


Section 1403. 
Waiver.


 


To the fullest extent permitted by applicable law,
each Guarantor hereby waives the benefits of diligence, presentment, demand for
payment, any requirement that the Trustee or any of the Holders exhaust any
right or take any action against the Company or any other Person, 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 or notice
with respect to any Security or the indebtedness evidenced thereby and all
demands whatsoever, and covenants that no Guarantee will be discharged in
respect of any Security except by complete performance of the Obligations
contained in such Security and in this Article.


 


Section 1404. 
Guarantee of Payment.


 


Each Guarantee shall constitute a guarantee of
payment when due and not a guarantee of collection.  The Guarantors hereby agree that, in the
event of a default in payment of principal of or premium, if any, or interest
on any Security, whether at its Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such Security,
subject to the terms and conditions set forth in this Indenture, directly
against the Guarantors to enforce the Guarantee without first proceeding
against the Company.


 


Section 1405. 
No Discharge or Diminishment of Guarantee.


 


Subject to Section 1410, the obligations of
each of the Guarantors hereunder shall be absolute and unconditional and not be
subject to any reduction, limitation, termination, impairment or for any reason
(other than the payment in full in cash of the Obligations), including any
claim of waiver, release, surrender, alteration or compromise of any of the
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Securities, this Indenture or the Obligations or
otherwise.  Without limiting the
generality of the foregoing, the obligations of each of the Guarantors
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Trustee or any Holder of the Notes to assert any claim or demand
or to enforce any remedy under this Indenture or any Security, any other
guarantee or any other agreement, by any waiver, modification or indulgence of
any provision thereof, by any default,


 


70

















 


failure or delay, willful or otherwise, in the
performance of the Obligations, by any release of any other Guarantor pursuant
to Section 1410 or by any other act or omission or delay to do any other
act that may or might in any manner or to any extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of any Guarantor as a
matter of law or equity (other than the payment in full in cash of all the
Obligations); provided, however,
that notwithstanding the foregoing, no such waiver, modification or indulgence
shall, without the consent of the Guarantors, increase the principal amount of
such Security, or increase the interest rate thereon, change any redemption
provisions thereof (including any change to increase any premium payable upon
redemption thereof) or change the Stated Maturity of any payment thereon, or
increase the principal amount of any Original Issue Discount Security that
would be due and payable upon a declaration of acceleration or the maturity
thereof pursuant to Section 502 of this Indenture.


 


Section 1406. 
Defenses of Company Waived.


 


To the extent permitted by applicable law, each of
the Guarantors waives any defense based on or arising out of any defense of the
Company or any other Guarantor or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Company, other than final payment in full in cash of the
Obligations.  Each of the Guarantors
waives any defense arising out of any such election even though such election
operates to impair or to extinguish any right of reimbursement or subrogation
or other right or remedy of each of the Guarantors against the Company or any
security.


 


Section 1407. 
Continued Effectiveness.


 


Subject to Section 1410, each of the
Guarantors further agrees that its Guarantee with respect to any Security
hereunder shall remain in full force and effect and continue to be irrevocable
notwithstanding any petition filed by or against the Company for liquidation or
reorganization, the Company becoming insolvent or making an assignment for the
benefit of creditors or a receiver or trustee being appointed for all or any
significant part of the Company’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may
be, if at any time payment, or any part thereof, of principal of or interest on
any Obligation is rescinded or must otherwise be restored or returned by the
Trustee or any Holder of any Security, whether as a “voidable preference,” “fraudulent
transfer” upon bankruptcy or reorganization of the Company or otherwise, all as
though such payment or performance had not been made, until the date upon which
the entire Obligation, if any, and interest on such Security has been, or has
been deemed pursuant to the provisions of this Indenture to have been paid in
full.  In the event that any payment, or
any part thereof, is rescinded, reduced, restored or returned on any Security,
such Security shall, to the fullest extent permitted by law, be reinstated and
deemed paid only by such amount paid and not so rescinded, reduced, restored or
returned.


 


71

















 


Section 1408. 
Subrogation.


 


In furtherance of the foregoing and not in
limitation of any other right of each of the Guarantors by virtue hereof, upon
the failure of the Company to pay any Obligation when and as the same shall
become due, each of the Guarantors hereby promises to and will, upon receipt of
written demand by the Trustee or any Holder of the Securities of any series,
forthwith pay, or cause to be paid, to the Holders in cash the amount of such
unpaid Obligations, and thereupon the Holders shall, assign (except to the
extent that such assignment would render a Guarantor a “creditor” of the
Company within the meaning of Section 547 of Title 11 of the United States
Code as now in effect or hereafter amended or any comparable provision of any
successor statute) the amount of the Obligations owed to it and paid by such
Guarantor pursuant to this Guarantee to such Guarantor, such assignment to be
pro rata to the extent the Obligations in question were discharged by such
Guarantor, or make such other disposition thereof as such Guarantor shall
direct (all without recourse to the Holders, and without any representation or
warranty by the Holders).  If (a) a
Guarantor shall make payment to the Holders of all or any part of the
Obligations and (b) all the Obligations and all other amounts payable
under this Indenture shall be paid in full, the Trustee will, at such Guarantor’s
request, execute and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Obligations
resulting from such payment by such Guarantor.


 


Section 1409. 
Subordination.


 


Upon payment by any Guarantor of any sums to the
Holders, as provided above, all rights of such Guarantor against the Company,
arising as a result thereof by way of right of subrogation or otherwise, shall
in all respects be subordinated and junior in right of payment to the prior payment
in full in cash of all the Obligations to the Trustee; provided,
however, that any right of subrogation
that such Guarantor may have pursuant to this Indenture is subject to Section 1408.


 


Section 1410. 
Release of Guarantor and Termination of Guarantee.


 


A Guarantor shall, upon the occurrence of any of
the following events, be automatically and unconditionally released and
discharged from all obligations under this Indenture and its Guarantee without
any action required on the part of the Trustee or any Holder; provided that such Guarantor would not, immediately after
such release and discharge, be required to become a Guarantor pursuant to Section 1402:


 


(1)      at
any time such Guarantor is not the Partnership and is sold or disposed of
(whether by merger, consolidation or the sale of all or substantially all of
its assets) to an entity that is not required to become a Guarantor, if such
sale or disposition is otherwise in compliance with this Indenture;


 


72

















 


(2)      such
Guarantor is designated a Non-Guarantor Entity in accordance with this
Indenture; or


 


(3)      the
Company effects a Defeasance or Covenant Defeasance in accordance with Article XIII
hereof.


 


The Company may designate any Person as a “Non-Guarantor
Entity” if (i) such Person is directly or indirectly wholly owned by one
or more of the Credit Parties and (ii) such Person, together with all
then-existing Non-Guarantor Entities designated pursuant to this clause (ii) on
a combined and consolidated basis and taken as a whole, would not constitute a
Significant Subsidiary (the foregoing, the “Non-Guarantor
Limitation”).  The Company may
also, from time to time, remove the designation of any Person as a
Non-Guarantor Entity and must remove the designation as to one or more
Non-Guarantor Entities designated pursuant to clause (ii) of the
immediately preceding sentence to the extent as of the end of any fiscal
quarter such Non-Guarantor Entities exceed the Non-Guarantor Limitation.  Any such designation or removal by the
Company shall be evidenced to the Trustee by promptly filing with the Trustee a
Company Resolution giving effect to such designation or removal, and in the
case of a designation, a certificate of the chief financial officer of the
Company (or, in his or her absence, the principal executive officer, principal
accounting officer or treasurer of the Company) certifying that such
designation complied with the foregoing provisions.  The Company shall promptly file with the
Trustee a notice of any such release of a Guarantor in accordance with this
Indenture.


 


The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request of the Company accompanied by
an Officers’ Certificate certifying as to the compliance with this Section.


 


Section 1411. 
Limitation of Guarantors’ Liability.


 


Each Guarantor, and by its acceptance hereof each
Holder, hereby confirms that it is the intention of all such parties that the
Guarantee by such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Title 11 of the United States Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to any Guarantor.  To effectuate the foregoing intention, the
Holders and such Guarantor hereby irrevocably agree that the obligations of
such Guarantor under this Indenture and its Guarantee shall be limited to the
maximum aggregate amount which, after giving effect to all other contingent and
fixed liabilities of such Guarantor, and after giving effect to any collections
from or payments made by or on behalf of, any other Guarantor in respect of the
obligations of such Guarantor under its Guarantee or pursuant to its
contribution obligations under this Indenture, will result in the obligations
of such Guarantor under its Guarantee not constituting such fraudulent transfer
or conveyance.


 


73

















 


Each Guarantee is expressly limited so that in no
event, including the acceleration of the Maturity of the Securities, shall the
amount paid or agreed to be paid in respect of interest on the Securities (or
fees or other amounts deemed payment for the use of funds) exceed the maximum
permissible amount under applicable law, as in effect on the date hereof and as
subsequently amended or modified to allow a greater amount of interest (or fees
or other amounts deemed payment for the use of funds) to be paid under such
Guarantee.  If for any reason the amount
in respect of interest (or fees or other amounts deemed payment for the use of
funds) required by a Guarantee exceeds such maximum permissible amount, the
obligation to pay interest under such Guarantee (or fees or other amounts
deemed payment for the use of funds) shall be automatically reduced to such
maximum permissible amount and any amounts collected by any holder of any
Security in excess of the permissible amount shall be automatically applied to
reduce the outstanding principal on such Security.


 


Section 1412. 
No Obligation to Take Action Against the Company.


 


Neither the Trustee, any Holder nor any other
Person shall have any obligation to enforce or exhaust any rights or remedies
or take any other steps under any security for the Obligations or against the
Company or any other Person or any Property of the Company or any other Person
before the Trustee, such Holder or such other Person is entitled to demand
payment and performance by any or all Guarantors of their liabilities and
obligations under their Guarantee.


 


Section 1413. 
Execution and Delivery.


 


To evidence its Guarantee set forth in this Article XIV,
each Guarantor hereby agrees that this Indenture shall be executed on behalf of
such Guarantor by an Officer of such Guarantor, and in the case of any New KKR Entity
that becomes a Guarantor in accordance with this Indenture, such New KKR Entity’s
Guarantee shall be evidenced by the execution and delivery on behalf of such
New KKR Entity of a supplemental indenture hereto by an Officer of such New KKR
Entity.


 


Each Guarantor hereby agrees that its Guarantee set
forth in this Article XIV shall remain in full force and effect
notwithstanding the absence of the endorsement of any notation of such
Guarantee on any Securities.


 


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


 


The delivery of any Security by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of the Guarantors.


 


*          
*          *


 


74

















 


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


 


[Signature page follows]


 


75
















 


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


 


	
   

  	
  KKR GROUP FINANCE CO. LLC, as Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  KKR Management Holdings Corp., its managing
  member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Sorkin

  
	
   

  	
   

  	
  Name: 

  	
  David Sorkin

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KKR & CO. L.P., as Guarantor,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  KKR Management LLC, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Sorkin

  
	
   

  	
   

  	
  Name: 

  	
  David Sorkin

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KKR MANAGEMENT HOLDINGS L.P., as Guarantor,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  KKR Management Holdings Corp., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Sorkin

  
	
   

  	
   

  	
  Name: 

  	
  David Sorkin

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  



 


[Signature Page to Indenture]


 

















 


	
   

  	
  KKR FUND HOLDINGS L.P., as Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  KKR Fund Holdings GP Limited, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Sorkin

  
	
   

  	
   

  	
  Name: 

  	
  David Sorkin

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  And

  
	
   

  	
  By:

  	
  KKR Group Holdings L.P., its general partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  KKR Group Limited, the general partner of KKR
  Group Holdings L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Sorkin

  
	
   

  	
   

  	
  Name: 

  	
  David Sorkin

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  



 


[Signature Page to Indenture]


 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Provenzano

  
	
   

  	
   

  	
  Name: 

  	
  Thomas Provenzano

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


[Signature Page to Indenture]


 

















 


SCHEDULE I


 


GUARANTORS


 


KKR & Co. L.P., a Delaware limited
partnership


KKR Management Holdings L.P., a Delaware limited
partnership


KKR Fund Holdings L.P., a Cayman limited
partnership


 


I-1