Exhibit 4.3


 


[Form of Subordinated Indenture]


 


KODIAK OIL & GAS CORP.


 


as Issuer,


 


any Subsidiary Guarantors party hereto,


 


and


 


[                                ]


 


as Trustee


 


INDENTURE


 


Dated as of


 


Debt Securities


 

















 


CROSS-REFERENCE TABLE


 


	
  TIA Section

  	
   

  	
  Indenture Section

  
	
  310(a)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  5.01

  
	
  (b)

  	
   

  	
  5.02

  
	
  (c)

  	
   

  	
  5.02

  
	
  313(a)

  	
   

  	
  5.03

  
	
  (b)

  	
   

  	
  5.03

  
	
  (c)

  	
   

  	
  13.03

  
	
  (d)

  	
   

  	
  5.03

  
	
  314(a)

  	
   

  	
  4.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  13.05

  
	
  (c)(2)

  	
   

  	
  13.05

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  13.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  6.07 & 13.03

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.08

  
	
  316(a) (last
  sentence)

  	
   

  	
  1.01

  
	
  (a)(1)(A)

  	
   

  	
  6.06

  
	
  (a)(1)(B)

  	
   

  	
  6.06

  
	
  (a)(2)

  	
   

  	
  9.01 (d)

  
	
  (b)

  	
   

  	
  6.04

  
	
  (c)

  	
   

  	
  5.04

  
	
  317(a)(1)

  	
   

  	
  6.02

  
	
  (a)(2)

  	
   

  	
  6.02

  
	
  (b)

  	
   

  	
  4.04

  
	
  318(a)

  	
   

  	
  13.07

  



 


N.A.
means Not Applicable


 


NOTE:
This Cross-Reference table shall not, for any purpose, be deemed part of this
Indenture.


 


i

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other Definitions

  	
  7

  
	
  Section 1.03.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  7

  
	
  Section 1.04.

  	
  Rules of Construction

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
  DEBT
  SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Forms Generally

  	
  7

  
	
  Section 2.02.

  	
  Form of Trustee’s Certificate of Authentication

  	
  8

  
	
  Section 2.03.

  	
  Principal Amount; Issuable in Series

  	
  8

  
	
  Section 2.04.

  	
  Execution of Debt Securities

  	
  10

  
	
  Section 2.05.

  	
  Authentication and Delivery of Debt Securities

  	
  11

  
	
  Section 2.06.

  	
  Denomination of Debt Securities

  	
  12

  
	
  Section 2.07.

  	
  Registration of Transfer and Exchange

  	
  13

  
	
  Section 2.08.

  	
  Temporary Debt Securities

  	
  14

  
	
  Section 2.09.

  	
  Mutilated, Destroyed, Lost or Stolen Debt Securities

  	
  15

  
	
  Section 2.10.

  	
  Cancellation of Surrendered Debt Securities

  	
  15

  
	
  Section 2.11.

  	
  Provisions of the Indenture and Debt Securities for the
  Sole Benefit of the Parties and the Holders

  	
  16

  
	
  Section 2.12.

  	
  Payment of Interest; Interest Rights Preserved

  	
  16

  
	
  Section 2.13.

  	
  Securities Denominated in Dollars

  	
  16

  
	
  Section 2.14.

  	
  Wire Transfers

  	
  16

  
	
  Section 2.15.

  	
  Securities Issuable in the Form of a Global Security

  	
  16

  
	
  Section 2.16.

  	
  Medium Term Securities

  	
  19

  
	
  Section 2.17.

  	
  Defaulted Interest

  	
  19

  
	
  Section 2.18.

  	
  CUSIP Numbers

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
  REDEMPTION
  OF DEBT SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Applicability of Article

  	
  21

  
	
  Section 3.02.

  	
  Notice of Redemption; Selection of Debt Securities

  	
  21

  
	
  Section 3.03.

  	
  Payment of Debt Securities Called for Redemption

  	
  22

  
	
  Section 3.04.

  	
  Mandatory and Optional Sinking Funds

  	
  23

  
	
  Section 3.05.

  	
  Redemption of Debt Securities for Sinking Fund

  	
  23

  



 


ii

















 


	
  ARTICLE IV

  
	
  PARTICULAR
  COVENANTS OF THE COMPANY

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of Principal of, and Premium, If Any, and
  Interest on, Debt Securities

  	
  25

  
	
  Section 4.02.

  	
  Maintenance of Offices or Agencies for Registration of
  Transfer, Exchange and Payment of Debt Securities

  	
  25

  
	
  Section 4.03.

  	
  Appointment to Fill a Vacancy in the Office of Trustee

  	
  25

  
	
  Section 4.04.

  	
  Duties of Paying Agents, etc.

  	
  26

  
	
  Section 4.05.

  	
  SEC Reports; Financial Statements

  	
  27

  
	
  Section 4.06.

  	
  Compliance Certificate

  	
  27

  
	
  Section 4.07.

  	
  Further Instruments and Acts

  	
  28

  
	
  Section 4.08.

  	
  Existence

  	
  28

  
	
  Section 4.09.

  	
  Maintenance of Properties

  	
  28

  
	
  Section 4.10.

  	
  Payment of Taxes and Other Claims

  	
  28

  
	
  Section 4.11.

  	
  Waiver of Certain Covenants

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
  HOLDERS’
  LISTS AND REPORTS BY THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Company to Furnish Trustee Information as to Names and
  Addresses of Holders; Preservation of Information

  	
  29

  
	
  Section 5.02.

  	
  Communications to Holders

  	
  29

  
	
  Section 5.03.

  	
  Reports by Trustee

  	
  29

  
	
  Section 5.04.

  	
  Record Dates for Action by Holders

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
  REMEDIES
  OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events of Default

  	
  30

  
	
  Section 6.02.

  	
  Collection of Debt by Trustee, etc.

  	
  32

  
	
  Section 6.03.

  	
  Application of Moneys Collected by Trustee

  	
  33

  
	
  Section 6.04.

  	
  Limitation on Suits by Holders

  	
  34

  
	
  Section 6.05.

  	
  Remedies Cumulative; Delay or Omission in Exercise of
  Rights Not a Waiver of Default

  	
  35

  
	
  Section 6.06.

  	
  Rights of Holders of Majority in Principal Amount of Debt
  Securities to Direct Trustee and to Waive Default

  	
  35

  
	
  Section 6.07.

  	
  Trustee to Give Notice of Events of Defaults Known to It,
  but May Withhold Such Notice in Certain Circumstances

  	
  36

  
	
  Section 6.08.

  	
  Requirement of an Undertaking to Pay Costs in Certain Suits
  under the Indenture or Against the Trustee

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
  CONCERNING
  THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Certain Duties and Responsibilities

  	
  36

  
	
  Section 7.02.

  	
  Certain Rights of Trustee

  	
  38

  
	
  Section 7.03.

  	
  Trustee Not Liable for Recitals in Indenture or in Debt
  Securities

  	
  39

  
	
  Section 7.04.

  	
  Trustee, Paying Agent or Registrar May Own Debt
  Securities

  	
  39

  
	
  Section 7.05.

  	
  Moneys Received by Trustee to Be Held in Trust

  	
  39

  



 


iii

















 


	
  Section 7.06.

  	
  Compensation and Reimbursement

  	
  39

  
	
  Section 7.07.

  	
  Right of Trustee to Rely on an Officers’ Certificate Where
  No Other Evidence Specifically Prescribed

  	
  40

  
	
  Section 7.08.

  	
  Separate Trustee; Replacement of Trustee

  	
  40

  
	
  Section 7.09.

  	
  Successor Trustee by Merger

  	
  41

  
	
  Section 7.10.

  	
  Eligibility; Disqualification

  	
  42

  
	
  Section 7.11.

  	
  Preferential Collection of Claims Against Company

  	
  42

  
	
  Section 7.12.

  	
  Compliance with Tax Laws

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
  CONCERNING
  THE HOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Evidence of Action by Holders

  	
  42

  
	
  Section 8.02.

  	
  Proof of Execution of Instruments and of Holding of Debt
  Securities

  	
  42

  
	
  Section 8.03.

  	
  Who May Be Deemed Owner of Debt Securities

  	
  43

  
	
  Section 8.04.

  	
  Instruments Executed by Holders Bind Future Holders

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
  SUPPLEMENTAL
  INDENTURES

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Purposes for Which Supplemental Indenture May Be
  Entered into Without Consent of Holders

  	
  44

  
	
  Section 9.02.

  	
  Modification of Indenture with Consent of Holders of Debt
  Securities

  	
  46

  
	
  Section 9.03.

  	
  Effect of Supplemental Indentures

  	
  47

  
	
  Section 9.04.

  	
  Debt Securities May Bear Notation of Changes by
  Supplemental Indentures

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
  CONSOLIDATION,
  MERGER, SALE OR CONVEYANCE

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Consolidations and Mergers of the Company

  	
  47

  
	
  Section 10.02.

  	
  Rights and Duties of Successor Company

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
  SATISFACTION
  AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Applicability of Article

  	
  49

  
	
  Section 11.02.

  	
  Satisfaction and Discharge of Indenture; Defeasance

  	
  49

  
	
  Section 11.03.

  	
  Conditions of Defeasance

  	
  50

  
	
  Section 11.04.

  	
  Application of Trust Money

  	
  51

  
	
  Section 11.05.

  	
  Repayment to Company

  	
  51

  
	
  Section 11.06.

  	
  Indemnity for U.S. Government Obligations

  	
  51

  
	
  Section 11.07.

  	
  Reinstatement

  	
  51

  



 


iv

















 


	
  ARTICLE XII

  
	
  [RESERVED]

  
	
   

  
	
  ARTICLE XIII

  
	
  MISCELLANEOUS
  PROVISIONS

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Successors and Assigns of Company Bound by Indenture

  	
  56

  
	
  Section 13.02.

  	
  Acts of Board, Committee or Officer of Successor Company
  Valid

  	
  56

  
	
  Section 13.03.

  	
  Required Notices or Demands

  	
  56

  
	
  Section 13.04.

  	
  Indenture and Debt Securities to Be Construed in Accordance
  with the Laws of the State of New York

  	
  57

  
	
  Section 13.05.

  	
  Officers’ Certificate and Opinion of Counsel to Be
  Furnished upon Application or Demand by the Company

  	
  57

  
	
  Section 13.06.

  	
  Payments Due on Legal Holidays

  	
  58

  
	
  Section 13.07.

  	
  Provisions Required by TIA to Control

  	
  58

  
	
  Section 13.08.

  	
  Computation of Interest on Debt Securities

  	
  58

  
	
  Section 13.09.

  	
  Rules by Trustee, Paying Agent and Registrar

  	
  58

  
	
  Section 13.10.

  	
  No Recourse Against Others

  	
  58

  
	
  Section 13.11.

  	
  Severability

  	
  59

  
	
  Section 13.12.

  	
  Effect of Headings

  	
  59

  
	
  Section 13.13.

  	
  Indenture May Be Executed in Counterparts

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  
	
  GUARANTEE

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Unconditional Guarantee

  	
  59

  
	
  Section 14.02.

  	
  Execution and Delivery of Guarantee

  	
  61

  
	
  Section 14.03.

  	
  Limitation on Subsidiary Guarantors’ Liability

  	
  61

  
	
  Section 14.04.

  	
  Release of Subsidiary Guarantors from Guarantee

  	
  62

  
	
  Section 14.05.

  	
  Subsidiary Guarantor Contribution

  	
  62

  
	
   

  	
   

  	
   

  
	
  Notation
  of Guarantee

  	
    Annex A

  	
   

  



 


v














 


THIS
INDENTURE dated as of                                is among Kodiak Oil & Gas Corp., a
Canadian corporation (the “Company”), any Subsidiary Guarantors (as defined
herein) party hereto and [                                  ], a                                 , as trustee (the “Trustee”).


 


RECITALS OF THE COMPANY AND ANY
SUBSIDIARY GUARANTORS


 


The
Company and any Subsidiary Guarantors have duly authorized the execution and
delivery of this Indenture to provide for the issuance, from time to time, of the
Company’s debentures, notes, bonds or other evidences of indebtedness to be
issued in one or more series unlimited as to principal amount (herein called
the “Debt Securities”), which Debt Securities may be guaranteed by each of the
Subsidiary Guarantors and may be subordinated in right of payment to Senior
Indebtedness, as in this Indenture provided.


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH


 


That,
in order to declare the terms and conditions upon which the Debt Securities are
authenticated, issued and delivered, and in consideration of the premises, and
of the purchase and acceptance of the Debt Securities by the Holders thereof,
the Company, any Subsidiary Guarantor and the Trustee covenant and agree with
each other, for the benefit of the respective Holders from time to time of the
Debt Securities or any series thereof, as follows:


 


ARTICLE I  

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01. Definitions.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For 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. The Trustee may
request and may conclusively rely upon an Officers’ Certificate to determine
whether any Person is an Affiliate of any specified Person.


 


“Agent”
means any Registrar or paying agent.


 


“Bankruptcy
Law” means Title 11, U.S. Code or any similar [Canada], federal or state law
for the relief of debtors.


 


“Board
of Directors” means the Board of Directors of the Company or any authorized
committee of the Board of Directors of the Company or any directors and/or
officers of the Company to whom such Board of Directors or such committee shall
have duly delegated its authority to act hereunder.


 


1

















 


“Business
Day” means any day other than a Legal Holiday.


 


“capital
stock” of any Person means and includes any and all shares, rights to purchase,
warrants or options (whether or not currently exercisable), participations or
other equivalents of or interests in (however designated) the equity (which
includes, but is not limited to, common stock, preferred stock and partnership
and joint venture interests) of such Person (excluding any debt securities that
are convertible into, or exchangeable for, such equity).


 


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


 


“Company
Order” means a written request or order signed in the name of the Company by
the Chairman of the Board, the President or a Vice President of the Company,
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.


 


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


 


“Debt”
of any Person at any date means any obligation created or assumed by such
Person for the repayment of borrowed money and any guarantee thereof.


 


“Debt
Security” or “Debt Securities” has the meaning stated in the first recital of
this Indenture and more particularly means any debt security or debt
securities, as the case may be of any series authenticated and delivered under
this Indenture.


 


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


 


“Depositary”
means, unless otherwise specified by the Company pursuant to either Section 2.03
or 2.15, with respect to Debt Securities of any series issuable or issued in
whole or in part in the form of one or more Global Securities, The Depository
Trust Company, New York, New York, or any successor thereto registered as a
clearing agency under the Exchange Act or other applicable statute or
regulations.


 


“Designated
Senior Indebtedness” means (i) any Senior Indebtedness which, at the date of
determination, has an aggregate principal amount outstanding of, or under
which, at the date of determination, the holders thereof are committed to lend
up to, at least $50 million and (ii) any other Senior Indebtedness designated,
as provided in Section 2.03, in respect of any series of Debt Securities.


 


“Dollar”
or “$” means such currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.


 


“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended, and any
successor statute.


 


2

















 


“Floating
Rate Security” means a Debt Security that provides for the payment of interest
at a variable rate determined periodically by reference to an interest rate
index specified pursuant to Section 2.03.


 


“GAAP”
means generally accepted accounting principles in the United States, as in
effect from time to time.


 


“Global
Security” means with respect to any series of Debt Securities issued hereunder,
a Debt Security which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with this Indenture and any Indentures
supplemental hereto, or resolution of the Board of Directors and set forth in
an Officers’ Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all the Outstanding
Debt Securities of such series or any portion thereof, in either case having
the same terms, including, without limitation, the same original issue date,
date or dates on which principal is due and interest rate or method of
determining interest.


 


“guarantee”
means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person (a)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term “guarantee” shall not include
endorsements for collection or deposit in the ordinary course of business. The
term “guarantee” used as a verb has a corresponding meaning.


 


“Holder,”
“Holder of Debt Securities” or other similar terms means, a Person in whose
name a Debt Security is registered in the Debt Security Register (as defined in
Section 2.07(a)).


 


“Indenture”
means this instrument as originally executed, or, if amended or supplemented as
herein provided, as so amended or supplemented and shall include the form and
terms of particular series of Debt Securities as contemplated hereunder,
whether or not a supplemental Indenture is entered into with` respect thereto.


 


“Legal
Holiday” means a Saturday, a Sunday or a day on which banking institutions in
the City of Denver, Colorado, City of New York, New York or at a Place of
Payment are authorized by law, regulation or executive order to remain closed.
If a payment date is a Legal Holiday at a Place of Payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.


 


“Lien”
means, with respect to any asset, any mortgage, lien, security interest,
pledge, charge or other encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law.


 


3

















 


“Officer”
means, with respect to a Person, the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer, Controller, Secretary
or any Assistant Secretary of such Person.


 


“Officers’
Certificate” means a certificate signed by two Officers of the Company, one of
whom must be the Company’s chief executive officer, chief financial officer or
chief accounting officer.


 


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


 


“Original
Issue Discount Debt Security” means any Debt 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 6.01.


 


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


 


(a)                                 Debt Securities of that
series theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;


 


(b)                                 Debt Securities of that
series for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any paying agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own paying agent) for the Holders of such Debt
Securities; provided, that, if such Debt 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; and


 


(c)                                  Debt Securities of that
series which have been paid pursuant to Section 2.09 or in exchange for or in
lieu of which other Debt Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Debt Securities in respect of
which there shall have been presented to the Trustee proof satisfactory to it
that such Debt Securities are held by a protected purchaser in whose hands such
Debt Securities are valid obligations of the Company;


 


provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Debt Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Debt
Securities owned by the Company or any other obligor upon the Debt Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
a Trust Officer actually knows to be so owned shall be so disregarded. Debt
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 Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt Securities or an
Affiliate of the Company or of 


 


4

















 


such
other obligor. In determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 6.01.


 


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


 


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


 


“Representative”
means the trustee, agent or representative (if any) for an issue of Senior
Debt.


 


“SEC”
means the United States Securities and Exchange Commission.


 


“Securities
Act” means the U.S. Securities Act of 1933, as amended, and any successor
statute.


 


“Senior
Indebtedness,” unless otherwise provided with respect to the Debt Securities of
a series as contemplated by Section 2.03, means (1) all Debt of the Subsidiary
Guarantors or the Company, whether currently outstanding or hereafter issued,
unless, by the terms of the instrument creating or evidencing such Debt, it is
provided that such Debt is subordinate or not superior in right of payment to
the Debt Securities, in the case of the Company, or the Guarantee, in the case
of the Subsidiary Guarantors, or to other Debt which is pari passu with or
subordinated to the Debt Securities, in the case of the Company, or the
Guarantee, in the case of the Subsidiary Guarantors, and (2) any modifications,
refunding, deferrals, renewals, or extensions of any such Debt or securities,
notes or other evidence of Debt issued in exchange for such Debt; provided that
in no event shall “Senior Indebtedness” include (a) Debt evidenced by the Debt
Securities or any Guarantee, (b) Debt of any of the Subsidiary Guarantors or
the Company owed or owing to any Subsidiary of the Company, (c) Debt of any of
the Subsidiary Guarantors owed or owing to the Company, (d) Debt to trade
creditors, (e) any liability for taxes owed or owing by the Subsidiary
Guarantors or the Company or (f) Debt of any Subsidiary Guarantor in the event
there is no series of Debt Securities Outstanding that is entitled to the
benefits of a Guarantee.


 


“Stated
Maturity” means, with respect to any security, the date specified in such
security as the fixed date on which the payment of principal of such security
is due and payable, including pursuant to any mandatory redemption provision
(but excluding any provision providing for the repurchase of such security at
the option of the holder thereof upon the happening of any contingency beyond
the control of the issuer unless such contingency has occurred).


 


“Subsidiary”
of any Person means:


 


5

















 


(1)                                 any
corporation, association or other business entity of which more than 50% of the
total voting power of equity interests entitled, without regard to the
occurrence of any contingency, to vote in the election of directors, managers,
trustees or equivalent Persons thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person or combination thereof; or


 


(2)                                 in the case of a
partnership, more than 50% of the partners’ equity interests, considering all
partners’ equity interests as a single class, is at such time of determination
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of such Person or combination thereof.


 


“Subsidiary
Guarantors” means any Subsidiary of the Company who may execute this Indenture,
or a supplement hereto, for the purpose of providing a Guarantee of Debt
Securities pursuant to this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter
“Subsidiary Guarantors” shall mean such successor Person.


 


“TIA”
means the U.S. Trust Indenture Act of 1939, as amended (15 U.S.C. “
77aaa-77bbbb), as in effect on the date of this Indenture as originally
executed and, to the extent required by law, as amended.


 


“Trustee”
initially means [                                    ] and any
other Person or Persons appointed as such from time to time pursuant to Section
7.08, and, subject to the provisions of Article VII, includes its or their
successors and assigns. If at any time there is more than one such Person, “Trustee”
as used with respect to the Debt Securities of any series shall mean the
Trustee with respect to the Debt Securities of that series.


 


“Trust
Officer” means any officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.


 


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


 


“U.S.
Government Obligations” means direct obligations of the United States of
America, obligations on which the payment of principal and interest is fully
guaranteed by the United States of America or obligations or guarantees for the
payment of which the full faith and credit of the United States of America is
pledged.


 


“Yield
to Maturity” means the yield to maturity, calculated at the time of issuance of
a series of Debt Securities, or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.


 


6

















 


Section 1.02.         Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Debt
  Security Register”

  	
   

  	
  2.07

  
	
  “Defaulted
  Interest”

  	
   

  	
  2.17

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Funding
  Guarantor”

  	
   

  	
  14.05

  
	
  “Guarantee”

  	
   

  	
  14.01

  
	
  “Place
  of Payment”

  	
   

  	
  2.03

  
	
  “Registrar”

  	
   

  	
  2.07

  
	
  “Subordinated
  Debt Securities”

  	
   

  	
  12.01

  
	
  “Successor
  Company”

  	
   

  	
  10.01

  



 


Section 1.03.         Incorporation
by Reference of Trust Indenture Act.  Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture.


 


All
terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.


 


Section 1.04.         Rules
of Construction. Unless the context otherwise requires:


 


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


 


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


 


(c)           “or”
is not exclusive;


 


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


 


(e)           provisions
apply to successive events and transactions;


 


(f)            if
the applicable series of Debt Securities are subordinated pursuant to Article XII,
unsecured Debt shall not be deemed to be subordinate or junior to secured Debt
merely by virtue of its nature as unsecured Debt; and


 


(g)           the
principal amount of any noninterest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with GAAP.


 


ARTICLE II  

DEBT SECURITIES


 


Section 2.01.         Forms
Generally.  The Debt Securities of
each series shall be in substantially the form established without the approval
of any Holder by or pursuant to a 


 


7

















 


resolution
of the Board of Directors or in one or more Indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Company may deem appropriate (and, if not
contained in a supplemental Indenture entered into in accordance with Article IX,
as are not prohibited by the provisions of this Indenture) or as may be
required or appropriate to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange on which such series of
Debt Securities may be listed, or to conform to general usage, or as may,
consistently herewith, be determined by the officers executing such Debt
Securities as evidenced by their execution of the Debt Securities.


 


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


 


Section 2.02.         Form
of Trustee’s Certificate of Authentication. 
The Trustee’s certificate of authentication on all Debt Securities
authenticated by the Trustee shall be in substantially the following form:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


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


 


[                                        ],


As Trustee


 


By:

Authorized Signatory


 


Section 2.03.         Principal
Amount; Issuable in Series.  The
aggregate principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is unlimited.


 


The
Debt Securities may be issued in one or more series in fully registered form.
There shall be established, without the approval of any Holders, in or pursuant
to a resolution of the Board of Directors and set forth in an Officers’
Certificate, or established in one or more Indentures supplemental hereto,
prior to the issuance of Debt Securities of any series any or all of the
following:


 


(a)           the
title of the Debt Securities of the series (which shall distinguish the Debt
Securities of the series from all other Debt Securities);


 


(b)           any
limit upon the aggregate principal amount of the Debt Securities of the series
which may be authenticated and delivered under this Indenture (except for Debt
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of the series pursuant to
this Article II);


 


8

















 


(c)           the
date or dates on which the principal of and premium, if any, on the Debt
Securities of the series are payable;


 


(d)           the
rate or rates (which may be fixed or variable) at which the Debt Securities of
the series shall bear interest, if any, or the method of determining such rate
or rates, the date or dates from which such interest shall accrue, the interest
payment dates on which such interest shall be payable, or the method by which
such date will be determined, the record dates for the determination of Holders
thereof to whom such interest is payable; and the basis upon which interest
will be calculated if other than that of a 360-day year of twelve thirty-day
months;


 


(e)           the
place or places, if any, in addition to or instead of the corporate trust
office of the Trustee, where the principal of, and premium, if any, and
interest on, Debt Securities of the series shall be payable (“Place of Payment”);


 


(f)            the
price or prices at which, the period or periods within which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in whole
or in part, at the option of the Company or otherwise;


 


(g)           whether
Debt Securities of the series are entitled to the benefits of any Guarantee of
any Subsidiary Guarantors pursuant to this Indenture;


 


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


 


(i)            the
terms, if any, upon which the Debt Securities of the series may be convertible
into or exchanged for capital stock (which may be represented by depositary
shares), other Debt Securities or warrants for capital stock or Debt or other
securities of any kind of the Company or any other obligor and the terms and
conditions upon which such conversion or exchange shall be effected, including
the initial conversion or exchange price or rate, the conversion or exchange
period and any other provision in addition to or in lieu of those described
herein;


 


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


 


(k)           if
the amount of principal of or any premium or interest on Debt Securities of the
series may be determined with reference to an index or pursuant to a formula,
the manner in which such amounts will be determined;


 


(l)            if
the principal amount payable at the Stated Maturity of Debt Securities of the
series will not be determinable as of any one or more dates prior to such
Stated Maturity, the amount which will be deemed to be such principal amount as
of any such date for any purpose, including the principal amount thereof which
will be due and payable upon any maturity other than the Stated Maturity or
which will be deemed to be Outstanding as of any such date (or, in any such
case, the manner in which such deemed principal amount is to be determined);


 


9














 


(m)          any
changes or additions to Article XI, including the addition of additional
covenants that may be subject to the covenant defeasance option pursuant to Section 11.02(b);


 


(n)           if
other than the principal amount thereof, the portion of the principal amount of
Debt Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01 or provable
in bankruptcy pursuant to Section 6.02;


 


(o)           the
terms, if any, of the transfer, mortgage, pledge or assignment as security for
the Debt Securities of the series of any properties, assets, moneys, proceeds,
securities or other collateral, including whether certain provisions of the TIA
are applicable and any corresponding changes to provisions of this Indenture as
currently in effect;


 


(p)           any
addition to or change in the Events of Default with respect to the Debt
Securities of the series and any change in the right of the Trustee or the
Holders to declare the principal of, and premium and interest on, such Debt
Securities due and payable;


 


(q)           if
the Debt Securities of the series shall be issued in whole or in part in the
form of a Global Security or Securities, the terms and conditions, if any, upon
which such Global Security or Securities may be exchanged in whole or in part
for other individual Debt Securities in definitive registered form; and the
Depositary for such Global Security or Securities and the form of any legend or
legends to be borne by any such Global Security or Securities in addition to or
in lieu of the legend referred to in Section 2.15(a);


 


(r)            any
trustees, authenticating or paying agents, transfer agents or registrars;


 


(s)           the
applicability of, and any addition to or change in the covenants and
definitions currently set forth in this Indenture or in the terms currently set
forth in Article X, including conditioning any merger, conveyance,
transfer or lease permitted by Article X upon the satisfaction of any Debt
coverage standard by the Company and Successor Company (as defined in Article X);


 


(t)            the
subordination of the Debt Securities of the series pursuant to Article XII
and any changes or additions to Article XII or designation of any
Designated Senior Indebtedness;


 


(u)           with
regard to Debt Securities of the series that do not bear interest, the dates
for certain required reports to the Trustee; and


 


(v)           any
other terms of the Debt Securities of the series (which terms shall not be
prohibited by the provisions of this Indenture).


 


All
Debt Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors and as set forth in such Officers’
Certificate or in any such Indenture supplemental hereto.


 


Section 2.04.          Execution
of Debt Securities.  The Debt
Securities shall be signed on behalf of the Company by the Chairman of the
Board, the President or a Vice President of the Company and, if the seal of the
Company is reproduced thereon, it shall be attested by its 


 


10

















 


Secretary,
an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such signatures
upon the Debt Securities may be the manual or facsimile signatures of the
present or any future such authorized officers and may be imprinted or
otherwise reproduced on the Debt Securities. The seal of the Company, if any,
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Debt Securities.


 


Only
such Debt Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, signed manually by the Trustee,
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee upon any Debt Security
executed by the Company shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder.


 


In
case any officer of the Company who shall have signed any of the Debt
Securities shall cease to be such officer before the Debt Securities so signed
shall have been authenticated and delivered by the Trustee, or disposed of by
the Company, such Debt Securities nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Debt Securities
had not ceased to be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such Persons as, at the actual date of the
execution of such Debt Security, shall be the proper officers of the Company,
although at the date of such Debt Security or of the execution of this
Indenture any such Person was not such officer.


 


Section 2.05.          Authentication
and Delivery of Debt Securities.  At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver to the Trustee for authentication Debt
Securities of any series executed by the Company, and the Trustee shall
thereupon authenticate and deliver said Debt Securities to or upon a Company
Order. In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon:


 


(a)           a
copy of any resolution or resolutions of the Board of Directors, certified by
the Secretary or Assistant Secretary of the Company, authorizing the terms of
issuance of any series of Debt Securities;


 


(b)           an
executed supplemental Indenture, if any;


 


(c)           an
Officers’ Certificate; and


 


(d)           an
Opinion of Counsel prepared in accordance with Section 13.05 which shall
also state:


 


(i)            that the form of such Debt Securities has been
established by or pursuant to a resolution of the Board of Directors or by a
supplemental Indenture as permitted by Section 2.01 in conformity with the
provisions of this Indenture;


 


(ii)           that the terms of such Debt Securities have been
established by or pursuant to a resolution of the Board of Directors or by a
supplemental Indenture as permitted by Section 2.03 in conformity with the
provisions of this Indenture;


 


11

















 


(iii)          that such Debt Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights
generally and rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;


 


(iv)          that the Company has the corporate power to issue such Debt
Securities and has duly taken all necessary corporate action with respect to
such issuance;


 


(v)           that the issuance of such Debt Securities will not
contravene the organizational documents of the Company or result in any
material violation of any of the terms or provisions of any law or regulation
or of any material indenture, mortgage or other agreement known to such counsel
by which the Company is bound;


 


(vi)          that authentication and delivery of such Debt Securities and
the execution and delivery of any supplemental Indenture will not violate the
terms of this Indenture; and


 


(vii)         such other matters as the Trustee may reasonably request.


 


Such
Opinion of Counsel need express no opinion as to whether a court in the United
States would render a money judgment in a currency other than that of the
United States.


 


The
Trustee shall have the right to decline to authenticate and deliver any Debt
Securities under this Section 2.05 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors, trustees or Officers (or any
combination thereof) shall determine that such action would expose the Trustee
to personal liability to existing Holders.


 


The
Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate Debt Securities of any series. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Debt
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, paying agent or
agent for service of notices and demands.


 


Unless
otherwise provided in the form of Debt Security for any series, each Debt
Security shall be dated the date of its authentication.


 


Section 2.06.          Denomination
of Debt Securities.  Unless otherwise
provided in the form of Debt Security for any series, the Debt Securities of
each series shall be issuable only as fully registered Debt Securities in such
Dollar denominations as shall be specified or contemplated by Section 2.03.
In the absence of any such specification with respect to the Debt Securities of
any series, the Debt Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.


 


12

















 


Section 2.07.          Registration
of Transfer and Exchange.


 


(a)           The
Company shall keep or cause to be kept a register for each series of Debt
Securities issued hereunder (hereinafter collectively referred to as the “Debt
Security Register”), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of all Debt
Securities and the transfer of Debt Securities as in this Article II
provided. At all reasonable times, the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment
for registration of transfer of any Debt Security at any office or agency to be
maintained by the Company in accordance with the provisions of Section 4.02,
the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Debt Security or Debt Securities of
authorized denominations for a like aggregate principal amount. In no event may
Debt Securities be issued as, or exchanged for, bearer securities.


 


Unless
and until otherwise determined by the Company by resolution of the Board of
Directors, the Debt Security Register shall be kept at the principal corporate
trust office of the Trustee, and, for this purpose, the Trustee shall be
designated “Registrar.”


 


Debt
Securities of any series (other than a Global Security, except as set forth
below) may be exchanged for a like aggregate principal amount of Debt
Securities of the same series of other authorized denominations. Subject to Section 2.15,
Debt Securities to be exchanged shall be surrendered at the office or agency to
be maintained by the Company as provided in Section 4.02, and the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Debt Security or Debt Securities which the Holder making the
exchange shall be entitled to receive.


 


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


 


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


 


No
service charge shall be made for any exchange or registration of transfer of
Debt Securities (except as provided by Section 2.09), but the Company may
require payment of a sum sufficient to cover any tax, fee, assessment or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Company’s own expense or
without expense or without charge to the Holders.


 


The
Company shall not be required (i) to issue, register the transfer of or
exchange any Debt Securities for a period of 15 days next preceding any mailing
of notice of redemption of Debt Securities of such series or (ii) to
register the transfer of or exchange any Debt Securities selected, called or
being called for redemption.


 


13

















 


Prior
to the due presentation for registration of transfer of any Debt Security, the
Company, the Subsidiary Guarantors, the Trustee, any paying agent or any
Registrar may deem and treat the Person in whose name a Debt Security is
registered as the absolute owner of such Debt Security for the purpose of
receiving payment of or on account of the principal of, and premium, if any,
and (subject to Section 2.12) interest on, such Debt Security and for all
other purposes whatsoever, whether or not such Debt Security is overdue, and
none of the Company, the Subsidiary Guarantors, the Trustee, any paying agent
or any Registrar shall be affected by notice to the contrary.


 


None
of the Company, the Subsidiary Guarantors, the Trustee, any agent of the
Trustee, any paying agent or any Registrar will have any responsibility or
liability for any aspect of the records relating to, or payments made on
account of, beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.


 


Section 2.08.          Temporary
Debt Securities.  Pending the
preparation of definitive Debt Securities of any series, the Company may
execute and the Trustee shall authenticate and deliver temporary Debt
Securities (printed, lithographed, photocopied, typewritten or otherwise
produced) of any authorized denomination, and substantially in the form of the
definitive Debt Securities in lieu of which they are issued, in registered form
with such omissions, insertions and variations as may be appropriate for
temporary Debt Securities, all as may be determined by the Company with the
concurrence of the Trustee. Temporary Debt Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every
temporary Debt Security shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Debt Securities.


 


If
temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Debt Securities of such series, the
temporary Debt Securities of such series shall be exchangeable for definitive
Debt Securities of such series upon surrender of the temporary Debt Securities
of such series at the office or agency of the Company at a Place of Payment for
such series, without charge to the Holder thereof, except as provided in Section 2.07
in connection with a transfer. Upon surrender for cancellation of any one or
more temporary Debt Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, temporary Debt Securities
of any series shall, in all respects, be entitled to the same benefits under this
Indenture as definitive Debt Securities of such series.


 


Upon
any exchange of a portion of a temporary Global Security for a definitive
Global Security or for the individual Debt Securities represented thereby
pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount to be
exchanged and endorsed.


 


14

















 


Section 2.09.          Mutilated,
Destroyed, Lost or Stolen Debt Securities. 
If (a) any mutilated Debt Security is surrendered to the Trustee at
its corporate trust office or (b) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them and any paying
agent harmless, and neither the Company nor the Trustee receives notice that
such Debt Security has been acquired by a protected purchaser, then the Company
shall execute and, upon a Company Order, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debt Security, a new Debt Security of the same series of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding. Upon the issuance of any substituted Debt Security, the Company or
the Trustee may require the payment of a sum sufficient to cover any tax, fee,
assessment or other governmental charge that may be imposed in relation thereto
and any other expenses connected therewith. In case any Debt Security which has
matured or is about to mature or which has been called for redemption shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Debt Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Debt Security) if
the applicant for such payment shall furnish the Company and the Trustee with
such security or indemnity as either may require to save it harmless from all
risk, however remote, and, in case of destruction, loss or theft, evidence to
the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Debt Security and of the ownership thereof.


 


Every
substituted Debt Security of any series issued pursuant to the provisions of
this Section 2.09 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of that series duly issued hereunder. All Debt Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.


 


Section 2.10.          Cancellation
of Surrendered Debt Securities.  All
Debt Securities surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to the Company or any paying agent or a
Registrar, be delivered to the Trustee for cancellation by it, or if
surrendered to the Trustee, shall be canceled by it, and no Debt Securities
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. All canceled Debt Securities held by the Trustee
shall be destroyed (subject to the record retention requirements of the
Exchange Act) and certification of their destruction delivered to the Company,
unless otherwise directed. On request of the Company, the Trustee shall deliver
to the Company canceled Debt Securities held by the Trustee. If the Company
shall acquire any of the Debt Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the Debt represented thereby unless
and until the same are delivered or surrendered to the Trustee for
cancellation. The Company may not issue new Debt Securities to replace Debt
Securities it has redeemed, paid or delivered to the Trustee for cancellation.


 


15

















 


Section 2.11.          Provisions
of the Indenture and Debt Securities for the Sole Benefit of the Parties and
the Holders.  Nothing in this
Indenture or in the Debt Securities, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto, the holders of
any Senior Indebtedness, the Holders or any Registrar or paying agent, any
legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
its covenants, conditions and provisions being for the sole benefit of the
parties hereto, the Holders and any Registrar and paying agents.


 


Section 2.12.          Payment
of Interest; Interest Rights Preserved.


 


(a)           Interest
on any Debt Security that is payable and is punctually paid or duly provided
for on any interest payment date shall be paid to the Person in whose name such
Debt Security is registered at the close of business on the regular record date
for such interest, notwithstanding the cancellation of such Debt Security upon
any transfer or exchange subsequent to the regular record date. Payment of
interest on Debt Securities shall be made at the corporate trust office of the
Trustee (except as otherwise specified pursuant to Section 2.03), or at
the option of the Company, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Debt Security Register,
or, if provided pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Holder by wire
transfer to an account designated by the Holder.


 


(b)           Subject
to the foregoing provisions of this Section 2.12 and Section 2.17,
each Debt Security of a particular series delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Debt
Security of the same series shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Debt Security.


 


Section 2.13.          Securities
Denominated in Dollars.  Except as
otherwise specified pursuant to Section 2.03 for Debt Securities of any
series, payment of the principal of, and premium, if any, and interest on, Debt
Securities of such series will be made in Dollars.


 


Section 2.14.          Wire
Transfers.  Notwithstanding any other
provision to the contrary in this Indenture, the Company may make any payment
of moneys required to be deposited with the Trustee on account of principal of,
or premium, if any, or interest on, the Debt Securities (whether pursuant to
optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer in immediately available funds to an account designated by the
Trustee before 11:00 a.m., New York City time, on the date such moneys are
to be paid to the Holders of the Debt Securities in accordance with the terms
hereof.


 


Section 2.15.          Securities
Issuable in the Form of a Global Security.


 


(a)           If
the Company shall establish, pursuant to Sections 2.01 and 2.03, that the Debt
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee or its agent shall, in accordance with Section 2.05, authenticate
and deliver, such Global Security or Securities, which shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
an Officers’ Certificate, shall 


 


16

















 


be registered in the name of the Depositary for such Global Security or
Securities or its nominee, shall be delivered by the Trustee or its agent to
the Depositary or pursuant to the Depositary’s instruction and shall bear a
legend substantially to the following effect:


 


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


 


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
HEREIN.”


 


or
such other legend as may then be required by the Depositary for such Global
Security or Securities.


 


(b)           Notwithstanding
any other provision of this Section 2.15 or of Section 2.07 to the
contrary, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be
exchanged in whole or in part for definitive Debt Securities in registered
form, a Global Security may be transferred, in whole but not in part and in the
manner provided in Section 2.07, only by the Depositary to a nominee of
the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.


 


(c)           (i) If,
at any time, the Depositary for a Global Security or Securities notifies the
Company that it is unwilling or unable to continue as Depositary for such
Global Security or Securities, or if, at any time, the Depositary for the Debt
Securities for such series shall no longer be eligible or in good standing
under the Exchange Act or other applicable statute, rule or regulation,
the Company shall appoint a successor Depositary with respect to such Global
Security or Securities. If a successor Depositary for such Global Security or
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company shall
execute, and the Trustee or its agent, upon receipt of a Company Order for the
authentication and delivery of such individual Debt Securities of such series
in exchange for such Global Security or Securities, will authenticate and
deliver, individual Debt Securities of such series of like tenor and terms in
definitive form in an 


 


17

















 


aggregate principal amount equal to the principal amount of the Global
Security or Securities in exchange for such Global Security or Securities.


 


(ii)           If an Event of Default occurs and the
Depositary for a Global Security or Securities notifies the Trustee of its
decision to require that the Debt Securities of any series or portion thereof
issued or issuable in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities, the Company shall appoint
a successor Depositary with respect to such Global Security or Securities. In
such event, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Debt Securities
of such series in exchange in whole or in part for such Global Security or
Securities, will authenticate and deliver individual Debt Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such series or portion thereof in
exchange for such Global Security or Securities.


 


(iii)          If specified by the Company pursuant
to Sections 2.01 and 2.03 with respect to Debt Securities issued or issuable in
the form of a Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for individual
Debt Securities of such series of like tenor and terms in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee or its agent upon receipt
of a Company Order for the authentication and delivery of definitive Debt
Securities of such series shall authenticate and deliver, without service
charge, to each Person specified by such Depositary, a new Debt Security or
Securities of the same series of like tenor and terms and of any authorized
denomination as requested by such Person in aggregate principal amount equal to
and in exchange for such Person’s beneficial interest in the Global Security;
and to such Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal amount of
Debt Securities delivered to Holders thereof.


 


(iv)          In any exchange provided for in any of
the preceding three paragraphs, the Company will execute, and the Trustee or
its agent will authenticate and deliver, individual Debt Securities. Upon the
exchange of the entire principal amount of a Global Security for individual
Debt Securities, such Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph, Debt Securities issued in
exchange for a Global Security pursuant to this Section 2.15 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Registrar. The
Trustee or the Registrar shall deliver such Debt Securities to the Persons in
whose names such Debt Securities are so registered.


 


(v)           Payments in respect of the principal
of and interest on any Debt Securities registered in the name of the Depositary
or its nominee will be payable to the Depositary or such nominee in its
capacity as the registered owner of such Global Security. The Company, any
Subsidiary Guarantors and the Trustee may treat the Person in whose name the
Debt Securities, including the Global Security, are registered as the owner
thereof for the purpose of receiving such payments and for any and all other
purposes whatsoever. None of the Company, any Subsidiary Guarantors, the
Trustee, any Registrar, the paying agent or any agent of the 


 


18

















 


Company,
any Subsidiary Guarantors or the Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of the beneficial ownership interests of the Global Security by the Depositary
or its nominee or any of the Depositary’s direct or indirect participants, or
for maintaining, supervising or reviewing any records of the Depositary, its
nominee or any of its direct or indirect participants relating to the
beneficial ownership interests of the Global Security, the payments to the
beneficial owners of the Global Security of amounts paid to the Depositary or
its nominee, or any other matter relating to the actions and practices of the
Depositary, its nominee or any of its direct or indirect participants. None of
the Company, any Subsidiary Guarantors, the Trustee or any such agent will be
liable for any delay by the Depositary, its nominee, or any of its direct or
indirect participants in identifying the beneficial owners of the Debt
Securities, and the Company, any Subsidiary Guarantors and the Trustee may
conclusively rely on, and will be protected in relying on, instructions from
the Depositary or its nominee for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Debt
Securities to be issued).


 


Section 2.16.          Medium
Term Securities.  Notwithstanding any
contrary provision herein, if all Debt Securities of a series are not to be
originally issued at one time, it shall not be necessary for the Company to
deliver to the Trustee an Officers’ Certificate, resolutions of the Board of
Directors, supplemental Indenture, Opinion of Counsel or written order or any
other document otherwise required pursuant to Section 2.01, 2.03, 2.05 or
13.05 at or prior to the time of authentication of each Debt Security of such
series if such documents are delivered to the Trustee or its agent at or prior
to the authentication upon original issuance of the first such Debt Security of
such series to be issued; provided, that any subsequent request by the Company
to the Trustee to authenticate Debt Securities of such series upon original
issuance shall constitute a representation and warranty by the Company that, as
of the date of such request, the statements made in the Officers’ Certificate
delivered pursuant to Section 2.05 or 13.05 shall be true and correct as
if made on such date and that the Opinion of Counsel delivered at or prior to
such time of authentication of an original issuance of Debt Securities shall
specifically state that it shall relate to all subsequent issuances of Debt
Securities of such series that are identical to the Debt Securities issued in
the first issuance of Debt Securities of such series.


 


A
Company Order delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph, may provide that Debt Securities which are
the subject thereof will be authenticated and delivered by the Trustee or its
agent on original issue from time to time upon the telephonic or written order
of Persons designated in such written order (any such telephonic instructions
to be promptly confirmed in writing by such Person) and that such Persons are
authorized to determine, consistent with the Officers’ Certificate,
supplemental Indenture or resolution of the Board of Directors relating to such
written order, such terms and conditions of such Debt Securities as are
specified in such Officers’ Certificate, supplemental Indenture or such
resolution.


 


Section 2.17.          Defaulted
Interest.  Any interest on any Debt
Security of a particular series which is payable, but is not punctually paid or
duly provided for, on the dates and in the manner provided in the Debt
Securities of such series and in this Indenture (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder thereof on the
relevant record date by 


 


19

















 


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 (i) or (ii) below:


 


(i)            The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debt Securities of such series 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 such Debt 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 mailed, first
class postage pre-paid, to each Holder thereof at its address as it appears in
the Debt Security Register, not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special
record date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Debt Securities of such series are
registered at the close of business on such special record date.


 


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


 


Section 2.18.          CUSIP
Numbers.  The Company, in issuing the
Debt Securities, may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the accuracy of such numbers either as printed on
the Debt Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Debt Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the “CUSIP” numbers.


 


20














 


ARTICLE III

REDEMPTION OF DEBT SECURITIES


 


Section 3.01.                             Applicability
of Article.  The
provisions of this Article shall be applicable to the Debt Securities of
any series which are redeemable before their Stated Maturity except as
otherwise specified as contemplated by Section 2.03 for Debt Securities of
such series.


 


Section 3.02.                             Notice of
Redemption; Selection of Debt Securities.  In case the Company shall desire to exercise
the right to redeem all or, as the case may be, any part of the Debt Securities
of any series in accordance with their terms, by resolution of the Board of
Directors or a supplemental Indenture, the Company shall fix a date for
redemption and shall give notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to the Holders of Debt
Securities of such series so to be redeemed as a whole or in part, in the
manner provided in Section 13.03. The notice, if given in the manner
herein provided, shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, failure to give
such notice or any defect in the notice to the Holder of any Debt Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debt Security of
such series.


 


Each such notice of redemption shall specify (i) the
date fixed for redemption, (ii) the redemption price at which Debt
Securities of such series are to be redeemed (or the method of calculating such
redemption price), (iii) the Place or Places of Payment that payment will
be made upon presentation and surrender of such Debt Securities, (iv) that
any interest accrued to the date fixed for redemption will be paid as specified
in said notice, (v) that the redemption is for a sinking fund payment (if
applicable), (vi) that, unless otherwise specified in such notice, if the
Company defaults in making such redemption payment or if the Debt Securities of
that series are subordinated pursuant to the terms of Article XII, the
paying agent is prohibited from making such payment pursuant to the terms of
this Indenture, (vii) that on and after said date any interest thereon or
on the portions thereof to be redeemed will cease to accrue, (viii) that
in the case of Original Issue Discount Securities original issue discount
accrued after the date fixed for redemption will cease to accrue, (ix) the
terms of the Debt Securities of that series pursuant to which the Debt
Securities of that series are being redeemed and (x) that no
representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Debt Securities of that series.
If less than all the Debt Securities of a series are to be redeemed the notice
of redemption shall specify the certificate numbers of any Debt Securities of
that series to be redeemed that are not in global form. In case any Debt
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and
shall state that on and after the date fixed for redemption, upon surrender of
such Debt Security, a new Debt Security or Debt Securities of that series in
principal amount equal to the unredeemed portion thereof, will be issued.


 


At least five days before the giving of any notice
of redemption, unless the Trustee consents to a shorter period, the Company
shall give written notice to the Trustee of the Redemption Date, the principal
amount of Debt Securities to be redeemed and the series and terms of the Debt
Securities pursuant to which such redemption will occur. Such notice shall be
accompanied by an Officers’ Certificate and an Opinion of Counsel from the
Company to the effect that such redemption will comply with the conditions
herein, and such notice may be 


 


21

















 


revoked
at any time prior to the giving of a notice of redemption to the Holders
pursuant to this Section 3.02. If fewer than all the Debt Securities of a
series are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given in writing to the Trustee, which record date
shall be not less than three days after the date of notice to the Trustee.


 


By 11 a.m., New York City time, on the
Redemption Date for any Debt Securities, the Company shall deposit with the
Trustee or with a paying agent (or, if the Company is acting as its own paying
agent, segregate and hold in trust) an amount of money in Dollars (except as
provided pursuant to Section 2.03) sufficient to pay the redemption price
of such Debt Securities or any portions thereof that are to be redeemed on that
date, together with any interest accrued to the Redemption Date.


 


If less than all the Debt Securities of like tenor
and terms of a series are to be redeemed (other than pursuant to mandatory
sinking fund redemptions), the Trustee shall select, on a pro rata basis, by
lot or by such other method as in its sole discretion it shall deem appropriate
and fair, the Debt Securities of that series or portions thereof (in multiples
of $1,000) to be redeemed. In any case where more than one Debt Security of
such series is registered in the same name, the Trustee, in its discretion, may
treat the aggregate principal amount so registered as if it were represented by
one Debt Security of such series. The Trustee shall promptly notify the Company
in writing of the Debt Securities selected for redemption and, in the case of
any Debt Securities selected for partial redemption, the principal amount
thereof to be redeemed. If any Debt Security called for redemption shall not be
so paid upon surrender thereof on such Redemption Date, the principal, premium,
if any, and interest shall bear interest until paid from the Redemption Date at
the rate borne by the Debt Securities of that series. If less than all the Debt
Securities of unlike tenor and terms of a series are to be redeemed, the
particular Debt Securities to be redeemed shall be selected by the Company. Provisions
of this Indenture that apply to Debt Securities called for redemption also
apply to portions of Debt Securities called for redemption.


 


Section 3.03.                             Payment of Debt
Securities Called for Redemption.  If notice of redemption has been given as
provided in Section 3.02, the Debt Securities or portions of Debt
Securities of the series with respect to which such notice has been given shall
become due and payable on the date and at the Place or Places of Payment stated
in such notice at the applicable redemption price, together with any interest
accrued to the date fixed for redemption, and on and after said date (unless
the Company shall default in the payment of such Debt Securities at the
applicable redemption price, together with any interest accrued to said date)
any interest on the Debt Securities or portions of Debt Securities of any
series so called for redemption shall cease to accrue, and any original issue
discount in the case of Original Issue Discount Securities shall cease to
accrue. On presentation and surrender of such Debt Securities at the Place or
Places of Payment in said notice specified, the said Debt Securities or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with any interest accrued thereon to the
date fixed for redemption.


 


Any Debt Security that is to be redeemed only in
part shall be surrendered at the Place of Payment with, if the Company, the
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing, and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Debt Security 


 


22

















 


without
service charge, a new Debt Security or Debt Securities of the same series, of
like tenor and form, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Debt Security so surrendered; except that if a
Global Security is so surrendered, the Company shall execute, and the Trustee
shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered. In the case of a Debt Security providing appropriate space for
such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.


 


Section 3.04.                             Mandatory and
Optional Sinking Funds.  The
minimum amount of any sinking fund payment provided for by the terms of Debt
Securities of any series, resolution of the Board of Directors or a
supplemental Indenture 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 Debt Securities of any series, resolution of the Board of Directors or
a supplemental Indenture is herein referred to as an “optional sinking fund payment.”


 


In lieu of making all or any part of any mandatory
sinking fund payment with respect to any Debt Securities of a series in cash,
the Company may at its option (a) deliver to the Trustee Debt Securities
of that series theretofore purchased or otherwise acquired by the Company or (b) receive
credit for the principal amount of Debt Securities of that series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.


 


Section 3.05.                             Redemption of
Debt Securities for Sinking Fund.  Not less than 60 days prior to each sinking
fund payment date for any series of Debt Securities, the Company will deliver
to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that
series, any resolution or supplemental Indenture, 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 Debt Securities of that
series pursuant to this Section 3.05 (which Debt Securities, if not
previously redeemed, will accompany such certificate) and whether the Company
intends to exercise its right to make any permitted optional sinking fund
payment with respect to such series. Such certificate shall also state that no
Event of Default has occurred and is continuing with respect to such series.
Such certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, by
11 a.m., New York City time, on the next succeeding sinking fund payment
date. Failure of the Company to deliver such certificate (or to deliver the
Debt Securities specified in this paragraph) shall not constitute a Default,
but such failure shall require that the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of 


 


23

















 


such
Debt Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Debt Securities as provided in this Section 3.05 and
without the right to make any optional sinking fund payment, if any, with
respect to such series.


 


Any sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any preceding sinking fund
payments made in cash which shall equal or exceed $100,000 (or a lesser sum if
the Company shall so request) with respect to the Debt Securities of any
particular series shall be applied by the Trustee on the sinking fund payment
date on which such payment is made (or, if such payment is made before a
sinking fund payment date, on the sinking fund payment date following the date
of such payment) to the redemption of such Debt Securities at the redemption
price specified in such Debt Securities, resolution or supplemental Indenture
for operation of the sinking fund together with any accrued interest to the
date fixed for redemption. Any sinking fund moneys not so applied or allocated
by the Trustee to the redemption of Debt Securities shall be added to the next
cash sinking fund payment received by the Trustee for such series and, together
with such payment, shall be applied in accordance with the provisions of this Section 3.05.
Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee on the last sinking fund payment date
with respect to Debt Securities of such series and not held for the payment or
redemption of particular Debt Securities shall be applied by the Trustee,
together with other moneys, if necessary, to be deposited sufficient for the
purpose, to the payment of the principal of the Debt Securities of that series
at its Stated Maturity.


 


The Trustee shall select the Debt Securities to be
redeemed upon such sinking fund payment date in the manner specified in the
last paragraph of Section 3.02 and the Company shall cause notice of the
redemption thereof to be given in the manner provided in Section 3.02
except that the notice of redemption shall also state that the Debt Securities
are being redeemed by operation of the sinking fund. Such notice having been
duly given, the redemption of such Debt Securities shall be made upon the terms
and in the manner stated in Section 3.03.


 


The Trustee shall not redeem any Debt Securities of
a series with sinking fund moneys or mail any notice of redemption of such Debt
Securities by operation of the sinking fund for such series during the
continuance of a Default in payment of interest on such Debt Securities or of
any Event of Default (other than an Event of Default occurring as a consequence
of this paragraph) with respect to such Debt Securities, except that if the
notice of redemption of any such Debt Securities shall theretofore have been
mailed in accordance with the provisions hereof, the Trustee shall redeem such
Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.


 


Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such Default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such Default or Event of Default, be held as security for the
payment of such Debt Securities; provided, however, that in case such Default
or Event of Default shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next sinking fund payment date for
such Debt Securities on which such moneys may be applied pursuant to the
provisions of this Section 3.05.


 


24

















 


ARTICLE IV

PARTICULAR COVENANTS OF THE COMPANY


 


Section 4.01.                             Payment of
Principal of, and Premium, If Any, and Interest on, Debt Securities.  The Company, for the benefit of each series
of Debt Securities, will duly and punctually pay or cause to be paid the
principal of, and premium, if any, and interest on, each of the Debt Securities
at the place, at the respective times and in the manner provided herein or in
the Debt Securities. Each installment of interest on any Debt Securities not in
global form may, at the Company’s option, be paid by mailing checks for such
interest payable to the Person entitled thereto pursuant to Section 2.07(a) to
the address of such Person as it appears on the Debt Security Register.


 


Principal of and premium and interest on Debt
Securities of any series shall be considered paid on the date due if, by 11 a.m.,
New York City time, on such date the Trustee or any paying agent holds in
accordance with this Indenture money sufficient to pay all principal, premium
and interest then due and, in the case of Debt Securities subordinated pursuant
to the terms of Article XII, the Trustee or such paying agent, as the case
may be, is not prohibited from paying such money to the Holders on that date
pursuant to the terms of this Indenture.


 


The Company shall pay interest on overdue principal
or premium, if any, at the rate specified therefor in the Debt Securities, and
it shall pay interest on overdue installments of interest at the same rate to
the extent lawful.


 


Section 4.02.                             Maintenance of
Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt
Securities.  The Company
will maintain in each Place of Payment for any series of Debt Securities an
office or agency where Debt Securities of such series may be presented or
surrendered for payment, and it shall also maintain (in or outside such Place
of Payment) an office or agency where Debt Securities of such series may be
surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Debt 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
office of the Trustee where its corporate trust business is principally
administered in the United States, and the Company hereby appoints the Trustee
as its agent to receive all presentations, surrenders, notices and demands.


 


The Company may also, from time to time, designate
different or additional offices or agencies to be maintained for such purposes
(in or outside of such Place of Payment), and may, from time to time, rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligations described in the
preceding paragraph. The Company will give prompt written notice to the Trustee
of any such additional designation or rescission of designation and any change
in the location of any such different or additional office or agency.


 


Section 4.03.                             Appointment to
Fill a Vacancy in the Office of Trustee.  The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the manner 


 


25

















 


provided
in Section 7.08, a Trustee, so that there shall at all times be a Trustee
hereunder with respect to each series of Debt Securities.


 


Section 4.04.                             Duties of
Paying Agents, etc.


 


(a)                                  The Company
shall cause each paying agent, if any, other than the Trustee, to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.04,


 


(i)                                     that it will
hold all sums held by it as such agent for the payment of the principal of, and
premium, if any, or interest on, the Debt Securities of any series (whether
such sums have been paid to it by the Company or by any other obligor on the
Debt Securities of such series) in trust for the benefit of the Holders of the
Debt Securities of such series;


 


(ii)                                  that it will
give the Trustee notice of any failure by the Company (or by any other obligor
on the Debt Securities of such series) to make any payment of the principal of,
and premium, if any, or interest on, the Debt Securities of such series when
the same shall be due and payable; and


 


(iii)                               that it will,
at any time during the continuance of an Event of Default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held by it as
such agent.


 


(b)                                 If the Company
shall act as its own paying agent, it will, on or before each due date of the
principal of, and premium, if any, or interest on, the Debt Securities of any
series, set aside, segregate and hold in trust for the benefit of the Holders
of the Debt Securities of such series a sum sufficient to pay such principal,
premium, if any, or interest so becoming due. The Company will promptly notify
the Trustee of any failure by the Company to take such action or the failure by
any other obligor on such Debt Securities to make any payment of the principal
of, and premium, if any, or interest on, such Debt Securities when the same
shall be due and payable.


 


(c)                                  Anything in
this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it or any paying agent, as required by this Section 4.04,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such paying agent.


 


(d)                                 Whenever the
Company shall have one or more paying agents with respect to any series of Debt
Securities, it will, prior to each due date of the principal of, and premium,
if any, or interest on, any Debt Securities of such series, deposit with any
such paying agent a sum sufficient to pay the principal, premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless any such paying agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.


 


(e)                                  Anything in
this Section 4.04 to the contrary notwithstanding, the agreement to hold
sums in trust as provided in this Section 4.04 is subject to the
provisions of Section 11.05.


 


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Section 4.05.                             SEC Reports;
Financial Statements.


 


(a)                                  The Company
shall, so long as any of the Debt Securities are Outstanding, file with the
Trustee, within 30 days after it files the same with the SEC, copies of the
annual reports and the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) that the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. If the Company
is not subject to the requirements of such Section 13 or 15(d), the
Company shall file with the Trustee, within 30 days after it would have been
required to file the same with the SEC, financial statements, including any
notes thereto (and with respect to annual reports, an auditors’ report by a
firm of established national reputation), and a “Management’s Discussion and
Analysis of Financial Condition and Results of Operations,” both comparable to
that which the Company would have been required to include in such annual
reports, information, documents or other reports if the Company had been
subject to the requirements of such Section 13 or 15 (d). The Company
shall also comply with the provisions of TIA Section 314(a).


 


(b)                                 The Company
shall provide the Trustee with a sufficient number of copies of all reports and
other documents and information that the Trustee may be required to deliver to
Holders under this Section.


 


(c)                                  The Company
shall, so long as any of the Debt Securities are Outstanding, deliver to the
Trustee, within 30 days of any Officer of the Company becoming aware of the
occurrence of any Event of Default, an Officers’ Certificate specifying such
Event of Default and what action the Company is taking or proposes to take with
respect thereto.


 


Section 4.06.                             Compliance
Certificate.


 


(a)                                  The Company and
any Subsidiary Guarantor shall, so long as any of the Debt Securities are
Outstanding, deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officers’ Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers of the Company
with a view to determining whether each of the Company and any Subsidiary
Guarantor has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that, to the best of his knowledge, each of the Company and any
Subsidiary Guarantor has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions hereof, without
regard to any grace period or requirement of notice required by this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which such Officer may have knowledge and what
action the Company or any Subsidiary Guarantor is taking or proposes to take
with respect thereto) and that, to the best of his knowledge, no event has
occurred and remains in existence by reason of which payments on account of the
principal of, or premium, if any, or interest, if any, on the Debt Securities
are prohibited or, if such event has occurred, a description of the event and
what action the Company or any Subsidiary Guarantor is taking or proposes to
take with respect thereto.


 


27

















 


(b)                                 The Company
shall, so long as any of the Debt Securities are Outstanding, deliver to the
Trustee, within 30 days after the occurrence of any Default or Event of Default
under this Indenture, an Officers’ Certificate specifying such Default or Event
of Default, the status thereof and what action the Company is taking or
proposes to take with respect thereto.


 


Section 4.07.                             Further
Instruments and Acts.  The Company
will, upon request of the Trustee, execute and deliver such further instruments
and do such further acts as may reasonably be necessary or proper to carry out
more effectually the purposes of this Indenture.


 


Section 4.08.                             Existence.  Except as permitted by Article X hereof,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and all rights (charter and
statutory) and franchises of the Company, provided that the Company shall not
be required to preserve any such right or franchise, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.


 


Section 4.09.                             Maintenance of
Properties.  The Company
shall cause all properties owned by the Company or any of its Subsidiaries or
used or held for use in the conduct of its business or the business of any such
Subsidiary to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any such Subsidiary and not disadvantageous in any material respect
to the Holders.


 


Section 4.10.                             Payment of
Taxes and Other Claims.  The
Company shall pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any of its Subsidiaries, and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might, by
law, become a Lien upon the property of the Company or any of its Subsidiaries;
provided that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.


 


Section 4.11.                             Waiver of
Certain Covenants.  The Company
and the Subsidiary Guarantors may, with respect to the Debt Securities of any
series, omit in any particular instance to comply with any covenant set forth
in this Article IV (except Sections 4.01 through 4.08) or made applicable
to such Debt Securities pursuant to Section 2.03, if, before or after the
time for such compliance, the Holders of at least a majority in principal
amount of the Outstanding Debt Securities of each series affected, waive such
compliance in such instance with such covenant, but no such waiver shall extend
to or affect such covenant except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the 


 


28

















 


Subsidiary
Guarantors and the duties of the Trustee in respect of any such covenant shall
remain in full force and effect.


 


ARTICLE V

HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE


 


Section 5.01.                             Company to
Furnish Trustee Information as to Names and Addresses of Holders; Preservation
of Information.  The Company
covenants and agrees that it will furnish or cause to be furnished to the
Trustee with respect to the Debt Securities of each series:


 


(a)                                  not more than
10 days after each record date with respect to the payment of interest, if any,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such record date, and


 


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


 


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


 


The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of the
Holders (i) contained in the most recent list furnished to it as provided
in this Section 5.01 or (ii) received by it in the capacity of paying
agent or Registrar (if so acting) hereunder.


 


The Trustee may destroy any list furnished to it as
provided in this Section 5.01 upon receipt of a new list so furnished.


 


Section 5.02.                             Communications
to Holders.  Holders may
communicate, pursuant to Section 312(b) of the TIA, with other
Holders with respect to their rights under this Indenture or the Debt
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the TIA.


 


Section 5.03.                             Reports by
Trustee.  Within 60 days after each January 31,
beginning with the first January 31 following the date of this Indenture,
and in any event on or before April 1 in each year, the Trustee shall mail
to Holders a brief report dated as of such January 31 that complies with
TIA Section 313(a); provided, however, that if no event described in TIA Section 313
(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted. The Trustee also shall comply with TIA Section 313(b).


 


Reports pursuant to this Section 5.03 shall be
transmitted by mail as follows:


 


(a)                                  to all Holders,
as the names and addresses of such Holders appear in the Debt Security
Register; and


 


29














 


(b)           except in the cases of reports under Section 313(b)(2) of
the TIA, to each Holder of a Debt Security of any series whose name and address
appear in the information preserved at the time by the Trustee in accordance
with Section 5.01.


 


A
copy of each report at the time of its mailing to Holders shall be filed with
the SEC and each stock exchange (if any) on which the Debt Securities of any
series are listed. The Company agrees to promptly notify the Trustee whenever
the Debt Securities of any series become listed on any stock exchange and of
any delisting thereof.


 


Section 5.04.          Record Dates for Action by Holders.  If the Company shall solicit from the Holders
of Debt Securities of any series any action (including the making of any demand
or request, the giving of any direction, notice, consent or waiver or the
taking of any other action), the Company may, at its option, by resolution of
the Board of Directors, fix in advance a record date for the determination of
Holders of Debt Securities entitled to take such action, but the Company shall
have no obligation to do so. Any such record date shall be fixed at the Company’s
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Debt Securities of
record at the close of business on such record date shall be deemed to be
Holders of Debt Securities for the purpose of determining whether Holders of
the requisite proportion of Debt Securities of such series Outstanding have
authorized or agreed or consented to such action, and for that purpose the Debt
Securities of such series Outstanding shall be computed as of such record date.


 


ARTICLE VI


REMEDIES OF THE TRUSTEE AND
HOLDERS IN EVENT OF DEFAULT


 


Section 6.01.          Events of Default.  If any one or more of the following shall
have occurred and be continuing with respect to Debt Securities of any series
(each of the following, an “Event of Default”):


 


(a)           default in the payment of any installment of
interest upon any Debt Securities of that series as, and when the same shall
become, due and payable, whether or not such payment shall be prohibited by Article XII,
if applicable, and continuance of such default for a period of 30 days; or


 


(b)           default in the payment of the principal of or premium,
if any, on any Debt Securities of that series as, and when the same shall
become, due and payable, whether at Stated Maturity, upon redemption, by
declaration, upon required repurchase or otherwise, whether or not such payment
shall be prohibited by Article XII, if applicable; or


 


(c)           default in the payment of any sinking fund payment
with respect to any Debt Securities of that series as, and when the same shall
become, due and payable; or


 


(d)           failure on the part of the Company, or if any series
of Debt Securities Outstanding under this Indenture is entitled to the benefits
of the Guarantee, any of the Subsidiary Guarantors, duly to observe or perform
any other of the covenants or agreements on the part of the Company, or if
applicable, any of the Subsidiary Guarantors, in the Debt Securities of that
series, in any resolution of the Board of Directors authorizing the issuance of
that series of Debt Securities, in this Indenture with respect to such series
or in any supplemental Indenture with 


 


30

















 


respect
to such series (other than a covenant a default in the performance of which is
elsewhere in this Section specifically dealt with), continuing for a
period of 60 days after the date on which written notice specifying such
failure and requiring the Company, or, if applicable, the Subsidiary
Guarantors, to remedy the same shall have been given to the Company, or, if
applicable, the Subsidiary Guarantors, by the Trustee or to the Company, or if
applicable, the Subsidiary Guarantors, and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Debt Securities of that series
at the time Outstanding; or


 


(e)           the Company, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of the Guarantee,
any of the Subsidiary Guarantors, pursuant to or within the meaning of any
Bankruptcy Law,


 


(i)            commences a voluntary case,


 


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


 


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


 


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


 


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


 


(i)            is for relief against the
Company, or if any series of Debt Securities Outstanding under this Indenture
is entitled to the benefits of the Guarantee, any of the Subsidiary Guarantors,
as debtor in an involuntary case,


 


(ii)           appoints a Custodian of the
Company, or if any series of Debt Securities Outstanding under this Indenture
is entitled to the benefits of the Guarantee, any of the Subsidiary Guarantors,
or a Custodian for all or substantially all of the property of the Company, or
if applicable, any of the Subsidiary Guarantors, or


 


(iii)          orders the liquidation of
the Company, or if any series of Debt Securities Outstanding under this
Indenture is entitled to the benefits of the Guarantee, any of the Subsidiary
Guarantors,


 


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


 


(g)           if any series of Debt Securities Outstanding under
this Indenture is entitled to the benefits of the Guarantee, the Guarantee of
any of the Subsidiary Guarantors ceases to be in full force and effect with
respect to Debt Securities of that series (except as otherwise provided in this
Indenture) or is declared null and void in a judicial proceeding or any of the
Subsidiary Guarantors denies or disaffirms its obligations under this Indenture
or such Guarantee; or


 


(h)           any other Event of Default provided with respect to
Debt Securities of that series;


 


31

















 


then,
and, in each and every case that an Event of Default described in clause (a),
(b), (c), (d), (g), or (h) with respect to Debt Securities of that series
at the time Outstanding occurs and is continuing, unless the principal of,
premium, if any, and accrued and unpaid interest on all the Debt Securities of
that series shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the Debt
Securities of that series then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Holders), may declare the principal
of (or, if the Debt Securities of that series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of that series), premium, if any, and interest on all the Debt Securities
of that series to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in
this Indenture or in the Debt Securities of that series contained to the
contrary notwithstanding. If an Event of Default described in clause (e) or
(f) occurs with respect to the Company, then, and, in each and every such
case, unless the principal of and accrued and unpaid interest on all the Debt
Securities shall have become due and payable, the principal of (or, if the Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms thereof),
premium, if any, and interest on all the Debt Securities then Outstanding
hereunder shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders,
anything in this Indenture or in the Debt Securities contained to the contrary
notwithstanding.


 


The
Holders of a majority in aggregate principal amount of the Debt Securities of a
particular series by written notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction already rendered and if all
existing Events of Default with respect to that series have been cured or
waived except nonpayment of principal, premium, if any, or interest that has
become due solely because of acceleration. Upon any such rescission, the
parties hereto shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and powers of the parties hereto
shall continue as though no such proceeding had been taken.


 


Section 6.02.          Collection of Debt by Trustee, etc.  If an Event of Default occurs and is
continuing, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid or enforce the
performance of any provision of the Debt Securities of the affected series or
this Indenture, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against any of
the Subsidiary Guarantors or the Company or any other obligor upon the Debt
Securities of such series (and collect in the manner provided by law out of the
property of any of the Subsidiary Guarantors or the Company or any other
obligor upon the Debt Securities of such series wherever situated the moneys
adjudged or decreed to be payable).


 


In
case there shall be pending proceedings for the bankruptcy or for the
reorganization of any of the Subsidiary Guarantors or the Company or any other
obligor upon the Debt Securities of any series under any Bankruptcy Law, or in
case a Custodian shall have been appointed for its property, or in case of any
other similar judicial proceedings relative to any of the Subsidiary Guarantors
or the Company or any other obligor upon the Debt Securities of any series, its



 


32

















 


creditors
or its property, the Trustee, irrespective of whether the principal of Debt
Securities of any series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 6.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal, premium, if
any, and interest (or, if the Debt Securities of such series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the Debt
Securities of such series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee, its agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee, except as a result of its negligence or bad
faith) and of the Holders thereof allowed in any such judicial proceedings
relative to any of the Subsidiary Guarantors or the Company, or any other
obligor upon the Debt Securities of such series, its creditors or its property,
and to collect and receive any moneys or other property payable or deliverable
on any such claims, and to distribute all amounts received with respect to the
claims of such Holders and of the Trustee on their behalf, and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by
each of such Holders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to such Holders,
to pay to the Trustee such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
reasonable expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.


 


All
rights of action and of asserting claims under this Indenture, or under any of
the Debt Securities of any series, may be enforced by the Trustee without the
possession of any such Debt Securities, or the production thereof in any trial
or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment (except for any amounts payable to
the Trustee pursuant to Section 7.06) shall be for the ratable benefit of
the Holders of all the Debt Securities in respect of which such action was taken.


 


In
case of an Event of Default hereunder, the Trustee may, in its discretion,
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.


 


Section 6.03.          Application of Moneys Collected by Trustee.  Any moneys or other property collected by the
Trustee pursuant to Section 6.02 with respect to Debt Securities of any
series shall be applied, after giving effect to the provisions of Article XII,
if applicable, in the order following, at the date or dates fixed by the
Trustee for the distribution of such moneys or other property, upon
presentation of the several Debt Securities of such series in respect of which
moneys or other property have been collected, and the notation thereon of the
payment, if only partially paid, and upon surrender thereof if fully paid:


 


33

















 


FIRST:
To the payment of all money due the Trustee pursuant to Section 7.06;


 


SECOND:
In case the principal of the Outstanding Debt Securities in respect of which
such moneys have been collected shall not have become due, to the payment of
interest on the Debt Securities of such series in the order of the maturity of
the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of
interest at the rate or Yield to Maturity (in the case of Original Issue
Discount Debt Securities) borne by the Debt Securities of such series, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;


 


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


 


FOURTH:
The remainder, if any, shall be paid to the Subsidiary Guarantors or the
Company, as applicable, or to whomsoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct.


 


The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.03. At least 15 days before such record date,
the Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.


 


Section 6.04.          Limitation on Suits by Holders.  No Holder of any Debt Security of any series
shall have any right, by virtue or by availing of any provision of this
Indenture, to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise, upon or under or with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless such Holder previously shall have given to the Trustee written notice of
an Event of Default with respect to Debt Securities of that same series and of
the continuance thereof and unless the Holders of not less than 25% in
aggregate principal amount of the Outstanding Debt Securities of that series
shall have made written request upon the Trustee to institute such action or
proceedings in respect of such Event of Default in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity or
security as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity or security shall have failed to
institute any such action or proceedings and no direction inconsistent with
such written request shall have been given to the Trustee pursuant to Section 6.06;
it being 


 


34

















 


understood
and intended, and being expressly covenanted by the Holder of every Debt
Security with every other Holder and the Trustee, that no one or more Holders
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
Holders, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
such Holders. For the protection and enforcement of the provisions of this Section 6.04,
each and every Holder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.


 


Notwithstanding
any other provision in this Indenture, however, the right of any Holder of any
Debt Security to receive payment of the principal of, and premium, if any, and
(subject to Section 2.12) interest on, such Debt Security, on or after the
respective due dates expressed in such Debt Security, and to institute suit for
the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.


 


Section 6.05.          Remedies Cumulative; Delay or Omission in Exercise
of Rights Not a Waiver of Default.  All powers and remedies given by this Article VI
to the Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such Default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and
remedy given by this Article VI or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Holders.


 


Section 6.06.          Rights of Holders of Majority in Principal Amount of
Debt Securities to Direct Trustee and to Waive Default.  The Holders of not less than a majority in
aggregate principal amount of the Debt Securities of any series at the time
Outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or of
exercising any right, trust or power conferred on the Trustee, with respect to
the Debt Securities of such series; provided, however, that such direction
shall not be otherwise than in accordance with law and the provisions of this
Indenture, and that, subject to the provisions of Section 7.01, the
Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel shall determine that the action so directed
may not lawfully be taken or is inconsistent with any provision of this
Indenture, or if the Trustee shall, by a responsible officer or officers,
determine that the action so directed would involve it in personal liability or
would be unduly prejudicial to Holders of Debt Securities of such series not
taking part in such direction; and, provided further, however, that nothing in
this Indenture contained shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by such Holders. The Holders of not less than a majority in aggregate
principal amount of the Debt Securities of any series at the time Outstanding
may on behalf of the Holders of all the Debt Securities of that series waive
any past Default or Event of Default and its consequences for that series,
except a Default or Event of Default in the payment of the principal of, and
premium, if any, or interest on, any of the Debt Securities and a Default or
Event of Default in respect of a provision that under Section 9.02 


 


35

















 


cannot
be amended without the consent of each Holder affected thereby. In case of any
such waiver, such Default shall cease to exist, any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture, and the Subsidiary Guarantors, the Company, the Trustee and the
Holders of the Debt Securities of that series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon.


 


Section 6.07.          Trustee to Give Notice of Events of Defaults Known
to It, but May Withhold Such Notice in Certain Circumstances.  The Trustee shall, within 90 days after the
occurrence of an Event of Default, or if later, within 30 days after the
Trustee obtains actual knowledge of the Event of Default, with respect to a
series of Debt Securities give to the Holders thereof, in the manner provided
in Section 13.03, notice of all Events of Default with respect to such
series known to the Trustee, unless such Events of Default shall have been
cured or waived before the giving of such notice; provided, that, except in the
case of an Event of Default in the payment of the principal of, or premium, if
any, or interest on, any of the Debt Securities of such series or in the making
of any sinking fund payment with respect to the Debt Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a committee of directors or
responsible officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders thereof.


 


Section 6.08.          Requirement of an Undertaking to Pay Costs in
Certain Suits under the Indenture or Against the Trustee.  All parties to this Indenture agree, and each
Holder of any Debt Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit in the
manner and to the extent provided in the TIA, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 6.08 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 25 percent in principal amount of
the Outstanding Debt Securities of that series or to any suit instituted by any
Holder for the enforcement of the payment of the principal of, or premium, if
any, or interest on, any Debt Security on or after the due date for such
payment expressed in such Debt Security.


 


ARTICLE VII


CONCERNING THE TRUSTEE


 


Section 7.01.          Certain Duties and Responsibilities.  The Trustee, prior to the occurrence of an
Event of Default and after the curing or waiving of all Events of Default which
may have occurred, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.


 


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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, its
own bad faith or its own willful misconduct, except that:


 


(a)           this paragraph shall not be construed to limit the
effect of the first paragraph of this Section 7.01;


 


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


 


(i)            the duties and obligations
of the Trustee with respect to Debt Securities of any series shall be
determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and obligations
with respect to such series as are specifically set forth in this Indenture,
and no implied covenants or obligations with respect to such series shall be
read into this Indenture against the Trustee;


 


(ii)           in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
any 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 the Trustee shall examine the evidence furnished to it pursuant to Sections
4.05 and 4.06 to determine whether or not such evidence conforms to the
requirement of this Indenture;


 


(iii)          the Trustee shall not be
liable for an 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


 


(iv)          the Trustee shall not be
liable with respect to any action taken or omitted to be taken by it with
respect to Debt Securities of any series in good faith in accordance with the
direction of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Debt Securities of that series relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to Debt Securities of such series.


 


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


 


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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.


 


Section 7.02.          Certain Rights of Trustee.  Except as otherwise provided in Section 7.01:


 


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


 


(b)           any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by a Company Order
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the Company;


 


(c)           the Trustee may consult with counsel, 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 or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;


 


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


 


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


 


(f)            prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, 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, approval or other paper or document, unless
requested in writing to do so by the Holders of a majority in aggregate
principal amount of the then Outstanding Debt Securities of a series affected
by such matter; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding, and the
reasonable expense of every such investigation shall be paid by the Company or,
if paid by the Trustee, shall be repaid by the Company upon demand;


 


(g)           the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be 


 


38

















 


responsible
for any misconduct or negligence on the part of any agent or attorney appointed
by it with due care hereunder; and


 


(h)           if any property other than cash shall at any time be
subject to a Lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or
by the supplemental instrument subjecting such property to such Lien, shall be
entitled to make advances for the purpose of preserving such property or of discharging
tax Liens or other prior Liens or encumbrances thereon.


 


Section 7.03.          Trustee Not Liable for Recitals in Indenture or in
Debt Securities.  The
recitals contained herein, in the Debt Securities (except the Trustee’s
certificate of authentication) shall be taken as the statements of the Company
and the Subsidiary Guarantors, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities of any
series, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Debt Securities and
perform its obligations hereunder, and that the statements made by it or to be
made by it in a Statement of Eligibility and Qualification on Form T-1
supplied to the Company are true and accurate. The Trustee shall not be
accountable for the use or application by the Company of any of the Debt
Securities or of the proceeds thereof.


 


Section 7.04.          Trustee, Paying Agent or Registrar May Own Debt
Securities.  The Trustee
or any paying agent or Registrar, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities and subject to the provisions of
the TIA relating to conflicts of interest and preferential claims may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, paying agent or Registrar.


 


Section 7.05.          Moneys Received by Trustee to Be Held in Trust.  Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received by
it hereunder. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time to the Company upon a Company Order.


 


Section 7.06.          Compensation and Reimbursement.  The Company covenants and agrees to pay in
Dollars to the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation for all services rendered by it hereunder (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and, except as otherwise expressly provided
herein, the Company will pay or reimburse in Dollars the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents, attorneys and counsel and of all Persons not regularly in its
employ), including without limitation, Section 6.02, except any such
expense, disbursement or advances as may arise from its negligence, willful
misconduct or bad faith. The Company also covenants to indemnify in Dollars the
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, willful misconduct or bad faith on the part of the
Trustee, arising out of or in connection with the acceptance or 


 


39

















 


administration
of this trust or trusts hereunder, including the reasonable costs and expenses
of defending itself against any claim of liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligations of the Company under this Section 7.06 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional Debt hereunder and shall
survive the satisfaction and discharge of this Indenture. The Company and the
Holders agree that such additional Debt shall be secured by a Lien prior to
that of the Debt Securities upon all property and funds held or collected by
the Trustee, as such, except funds held in trust for the payment of principal
of, and premium, if any, or interest on, particular Debt Securities.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.


 


Section 7.07.          Right of Trustee to Rely on an Officers’ Certificate
Where No Other Evidence Specifically Prescribed.  Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate
delivered to the Trustee and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.


 


Section 7.08.          Separate Trustee; Replacement of Trustee.  The Company may, but need not, appoint a
separate Trustee for any one or more series of Debt Securities. The Trustee may
resign with respect to one or more or all series of Debt Securities at any time
by giving notice to the Company. The Holders of a majority in principal amount
of the Debt Securities of a particular series may remove the Trustee for such
series and only such series by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:


 


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


 


(b)           the Trustee is adjudged bankrupt or insolvent;


 


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


 


(d)           the Trustee otherwise becomes incapable of acting.


 


If
the Trustee resigns, is removed by the Company or by the Holders of a majority
in principal amount of the Debt Securities of a particular series and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee. No resignation or removal of the Trustee and no
appointment of a successor Trustee shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable
requirements of this Section 7.08.


 


40














 


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of Debt
Securities of each applicable series. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the Lien provided for in Section 7.06.


 


If
a successor Trustee does not take office within 60 days after the retiring
Trustee gives notice of resignation or is removed, the retiring Trustee or the
Holders of 25% in principal amount of the Debt Securities of any applicable
series may petition any court of competent jurisdiction for the appointment of
a successor Trustee for the Debt Securities of such series.


 


If
the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Debt Securities of such series.


 


Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.06 shall continue for the benefit of the
retiring Trustee.


 


In
the case of the appointment hereunder of a separate or successor Trustee with
respect to the Debt Securities of one or more series, the Company, any retiring
Trustee and each successor or separate Trustee with respect to the Debt
Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (i) which shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of any retiring Trustee with respect to the Debt Securities of any
series as to which any such retiring Trustee is not retiring shall continue to
be vested in such retiring Trustee and (ii) that 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
separate, retiring or successor 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.


 


Section 7.09.         Successor
Trustee by Merger.  If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.


 


In
case at the time such successor or successors to the Trustee by merger,
conversion, consolidation or transfer shall succeed to the trusts created by
this Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such
Debt Securities either in the name of any predecessor hereunder or in the name
of the successor to the Trustee; and in all such 


 


41

















 


cases
such certificates shall have the full force which it is anywhere in the Debt
Securities or in this Indenture provided that the certificate of the Trustee
shall have.


 


Section 7.10.         Eligibility;
Disqualification.  The Trustee shall
at all times satisfy the requirements of Section 310(a) of the TIA.
The Trustee shall have a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition. No
obligor upon the Debt Securities of a particular series or Person directly or
indirectly controlling, controlled by or under common control with such obligor
shall serve as Trustee for the Debt Securities of such series. The Trustee
shall comply with Section 310(b) of the TIA; provided, however, that
there shall be excluded from the operation of Section 310(b)(1) of
the TIA this Indenture or any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
Section 310(b)(1) of the TIA are met.


 


Section 7.11.         Preferential
Collection of Claims Against Company. 
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the
TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of
the TIA to the extent indicated therein.


 


Section 7.12.         Compliance
with Tax Laws.  The Trustee hereby
agrees to comply with all U.S. Federal income tax information reporting and
withholding requirements applicable to it with respect to payments of premium
(if any) and interest on the Debt Securities, whether acting as Trustee, Registrar,
paying agent or otherwise with respect to the Debt Securities.


 


ARTICLE VIII  

CONCERNING THE HOLDERS


 


Section 8.01.         Evidence
of Action by Holders.  Whenever in
this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Debt Securities of any or all series may take
action (including the making of any demand or request, the giving of any
direction, notice, consent or waiver or the taking of any other action) the
fact that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or
any number of instruments of similar tenor executed by Holders in Person or by
agent or proxy appointed in writing, (b) by the record of the Holders
voting in favor thereof at any meeting of Holders duly called and held in
accordance with the provisions of Section 5.02, (c) by a combination
of such instrument or instruments and any such record of such a meeting of
Holders or (d) in the case of Debt Securities evidenced by a Global
Security, by any electronic transmission or other message, whether or not in
written format, that complies with the Depositary’s applicable procedures.


 


Section 8.02.         Proof
of Execution of Instruments and of Holding of Debt Securities.  Subject to the provisions of Sections 7.01,
7.02 and 13.09, proof of the execution of any instrument by a Holder or his
agent or proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debt Securities of any series
shall be proved by the Debt Security Register or by a certificate of the
Registrar for such series. The Trustee may 


 


42

















 


require
such additional proof of any matter referred to in this Section 8.02 as it
shall deem necessary.


 


Section 8.03.         Who
May Be Deemed Owner of Debt Securities.  Prior to due presentment for registration of
transfer of any Debt Security, the Company, the Subsidiary Guarantors, the
Trustee, any paying agent and any Registrar may deem and treat the Person in
whose name any Debt Security shall be registered upon the books of the Company
as the absolute owner of such Debt Security (whether or not such Debt Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and premium, if any, and (subject to Section 2.12) interest on such
Debt Security and for all other purposes, and none of the Company, the
Subsidiary Guarantors or the Trustee nor any paying agent nor any Registrar
shall be affected by any notice to the contrary; and all such payments so made
to any such Holder for the time being, or upon his order, shall be valid and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for moneys payable upon any such Debt Security.


 


None
of the Company, the Subsidiary Guarantors, the Trustee, any paying agent or any
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.


 


Section 8.04.         Instruments
Executed by Holders Bind Future Holders. 
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the Holders of
the percentage in aggregate principal amount of the Debt Securities of any
series specified in this Indenture in connection with such action and subject
to the following paragraph, any Holder of a Debt Security which is shown by the
evidence to be included in the Debt Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
corporate trust office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Debt Security. Except as aforesaid
any such action taken by the Holder of any Debt Security shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such
Debt Security and of any Debt Security issued upon transfer thereof or in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon such Debt Security or such other Debt
Securities. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Subsidiary Guarantors, the Trustee and the Holders of all the Debt
Securities of such series.


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders of Debt Securities entitled to give their consent or
take any other action required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders of Debt Securities at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to give such consent or to revoke any consent previously given or
to take any such action, whether or not such Persons continue to be Holders of
Debt Securities after such record date. No such consent shall be valid or
effective for more than 120 days after such record date unless the consent of
the Holders of the percentage in aggregate principal amount of the Debt 


 


43

















 


Securities
of such series specified in this Indenture shall have been received within such
120-day period.


 


ARTICLE IX  

SUPPLEMENTAL INDENTURES


 


Section 9.01.         Purposes
for Which Supplemental Indenture May Be Entered into Without Consent of
Holders.  The Company and any
Subsidiary Guarantors, when authorized by resolutions of the Board of
Directors, and the Trustee may from time to time and at any time, without the
consent of Holders, enter into an Indenture or Indentures supplemental hereto
(which shall conform to the provisions of the TIA as in force at the date of
the execution thereof) for one or more of the following purposes:


 


(a)           to
evidence the succession pursuant to Article X of another Person to the
Company, or successive successions, and the assumption by the Successor Company
(as defined in Section 10.01) of the covenants, agreements and obligations
of the Company in this Indenture and in the Debt Securities;


 


(b)           to
surrender any right or power herein conferred upon the Company or the
Subsidiary Guarantors, to add to the covenants of the Company or the Subsidiary
Guarantors such further covenants, restrictions, conditions or provisions for
the protection of the Holders of all or any series of Debt Securities (and if
such covenants are to be for the benefit of less than all series of Debt
Securities, stating that such covenants are expressly being included solely for
the benefit of such series) as the Board of Directors shall consider to be for
the protection of the Holders of such Debt Securities, and to make the
occurrence, or the occurrence and continuance, of a Default in any of such
additional covenants, restrictions, conditions or provisions a Default or an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
Indenture may provide for a particular period of grace after Default (which
period may be shorter or longer than that allowed in the case of other
Defaults) or may provide for an immediate enforcement upon such Default or may
limit the remedies available to the Trustee upon such Default or may limit the
right of the Holders of a majority in aggregate principal amount of any or all
series of Debt Securities to waive such Default;


 


(c)           to
cure any ambiguity or omission or to correct or supplement any provision
contained herein, in any supplemental Indenture or in any Debt Securities of
any series that may be defective or inconsistent with any other provision
contained herein, in any supplemental Indenture or in the Debt Securities of
such series; to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee, or to make such other provisions in regard to matters or
questions arising under this Indenture as shall not adversely affect the
interests of any Holders of Debt Securities of any series;


 


(d)           to
permit the qualification of this Indenture or any Indenture supplemental hereto
under the TIA as then in effect, except that nothing herein contained shall
permit or authorize the inclusion in any Indenture supplemental hereto of the
provisions referred to in Section 316(a)(2) of the TIA;


 


44

















 


(e)           to
change or eliminate any restrictions on the payment of principal of, or
premium, if any, on, Debt Securities; provided, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of any series
in any material respect or permit or facilitate the issuance of Debt Securities
of any series in uncertificated form;


 


(f)            to
reflect the release of any Subsidiary Guarantor in accordance with Article XIV


 


(g)           in
the case of any Debt Securities subordinated pursuant to Article XII, to
make any change in Article XII that would limit or terminate the benefits
available to any holder of Senior Indebtedness (or Representatives therefor)
under Article XII;


 


(h)           to
add Subsidiary Guarantors with respect to any or all of the Debt Securities or
to secure any or all of the Debt Securities or the Guarantee;


 


(i)            to
make any change that does not adversely affect the rights hereunder of any
Holder;


 


(j)            to
add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Debt Securities; provided, however, that any such
addition, change or elimination not otherwise permitted under this Section 9.01
shall neither apply to any Debt Security of any series created prior to the
execution of such supplemental Indenture and entitled to the benefit of such
provision nor modify the rights of the Holder of any such Debt Security with
respect to such provision or shall become effective only when there is no such
Debt Security Outstanding;


 


(k)           to
evidence and provide for the acceptance of appointment hereunder by a successor
or separate Trustee with respect to the Debt 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; and


 


(l)            to
establish the form or terms of Debt Securities of any series as permitted by
Sections 2.01 and 2.03.


 


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


 


Any
supplemental Indenture authorized by the provisions of this Section 9.01
may be executed by the Company, the Subsidiary Guarantors and the Trustee
without the consent of the Holders of any of the Debt Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.


 


In
the case of Debt Securities subordinated pursuant to Article XII, an
amendment under this Section 9.01 may not make any change that adversely
affects the rights under Article XII of any holder of Senior Indebtedness
then outstanding unless the holders of such Senior 


 


45

















 


Indebtedness
(or any group or Representative thereof authorized to give a consent) consent
to such change.


 


Section 9.02.         Modification
of Indenture with Consent of Holders of Debt Securities.  Without notice to any Holder but with the
consent (evidenced as provided in Section 8.01) of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such supplemental Indenture (including
consents obtained in connection with a tender offer or exchange offer for any
such series of Debt Securities), the Company and the Subsidiary Guarantors,
when authorized by resolutions of the Board of Directors, and the Trustee may
from time to time and at any time enter into an Indenture or Indentures
supplemental hereto (which shall conform to the provisions of the TIA as in
force at the date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental Indenture or of modifying in any manner
the rights of the Holders of the Debt Securities of such series; provided, that
no such supplemental Indenture, without the consent of the Holders of each Debt
Security so affected, shall: reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to an amendment; reduce the
rate of or extend the time for payment of interest on any Debt Security; reduce
the principal of or extend the Stated Maturity of any Debt Security; reduce any
premium payable upon the redemption of any Debt Security or change the time at
which any Debt Security may or shall be redeemed in accordance with Article III;
make any Debt Security payable in currency other than the Dollar; impair the
right of any Holder to receive payment of premium, if any, principal of and
interest on such Holder’s Debt Securities on or after the due dates therefor or
to institute suit for the enforcement of any payment on or with respect to such
Holder’s Debt Securities; in the case of any Debt Security subordinated
pursuant to Article XII, make any change in Article XII that
adversely affects the rights of any Holder under Article XII; release any
security that may have been granted in respect of the Debt Securities, other
than in accordance with this Indenture; make any change in Section 6.06 or
this Section 9.02; or, except as provided in Section 11.02(b) or
Section 14.04, release the Subsidiary Guarantors other than as provided in
this Indenture or modify the Guarantee in any manner adverse to the Holders.


 


A
supplemental Indenture which changes or eliminates any covenant or other provision
of this Indenture which has been expressly included solely for the benefit of
one or more particular series of Debt Securities or which modifies the rights
of the Holders of Debt 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 Debt Securities of any other series.


 


Upon
the request of the Company, accompanied by a copy of resolutions of the Board
of Directors authorizing the execution of any such supplemental Indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company and the Subsidiary
Guarantors in the execution of such supplemental Indenture unless such
supplemental Indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such supplemental
Indenture.


 


46

















 


It
shall not be necessary for the consent of the Holders under this Section 9.02
to approve the particular form of any proposed supplemental Indenture, but it
shall be sufficient if such consent shall approve the substance thereof.


 


In
the case of any Debt Securities subordinated pursuant to Article XII, an
amendment under this Section 9.02 may not make any change that adversely
affects the rights under Article XII of any holder of Senior Indebtedness
then outstanding unless the holders of such Senior Indebtedness (or any group
or Representative thereof authorized to give a consent) consent to such change.


 


After
an amendment under this Section 9.02 requiring the consent of the Holders
of any series of Debt Securities becomes effective, the Company shall mail to
Holders of that series of Debt Securities of each series affected thereby a
notice briefly describing such amendment. The failure to give such notice to
any such Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section 9.02 with respect to other
Holders.


 


Section 9.03.         Effect
of Supplemental Indentures.  Upon the
execution of any supplemental Indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company, the Subsidiary
Guarantors and the Holders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental Indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.


 


The
Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any
such supplemental Indenture complies with the provisions of this Article IX.


 


Section 9.04.         Debt
Securities May Bear Notation of Changes by Supplemental Indentures.  Debt Securities of any series authenticated
and delivered after the execution of any supplemental Indenture pursuant to the
provisions of 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. New Debt Securities of any series so modified
as to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental Indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Debt Securities of such series then Outstanding.
Failure to make the appropriate notation or to issue a new Debt Security of
such series shall not affect the validity of such amendment.


 


ARTICLE X  

CONSOLIDATION, MERGER, SALE OR CONVEYANCE


 


Section 10.01.      Consolidations
and Mergers of the Company.  The
Company shall not consolidate or amalgamate with or merge with or into any
Person, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all its assets to any Person, whether in a single transaction or
a series of related transactions, unless: (a) either (i) the Company
shall be the 


 


47

















 


surviving
Person in the case of a merger or (ii) the resulting, surviving or
transferee Person if other than the Company (the “Successor Company”), shall be
a partnership, limited liability company or corporation organized and existing
under the laws of [Canada], the United States, any State thereof or the
District of Columbia and the Successor Company shall expressly assume, by an
Indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under this
Indenture and the Debt Securities according to their tenor; (b) immediately
after giving effect to such transaction or series of transactions (and treating
any Debt which becomes an obligation of the Successor Company or any Subsidiary
of the Company as a result of such transaction as having been incurred by the
Successor Company or such Subsidiary at the time of such transaction or series
of transactions), no Default or Event of Default would occur or be continuing; (c) if
the Company is not the continuing Person, then each Subsidiary Guarantor,
unless it has become the Successor Company, shall confirm that its Guarantee
shall continue to apply to the obligations under the Debt Securities and this
Indenture; and (d) the Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, amalgamation, merger or disposition and such supplemental
Indenture (if any) comply with this Indenture.


 


Section 10.02.      Rights
and Duties of Successor Company.  In
case of any consolidation, amalgamation or merger where the Company is not the
continuing Person, or disposition of all or substantially all of the assets of
the Company in accordance with Section 10.01, the Successor Company shall
succeed to and be substituted for the Company with the same effect as if it had
been named herein as the respective party to this Indenture, and the predecessor
entity shall be released from all liabilities and obligations under this
Indenture and the Debt Securities, except that no such release will occur in
the case of a lease of all or substantially all of the Company’s assets. The
Successor Company thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all the Debt Securities issuable
hereunder which theretofore shall not have been signed by or on behalf of the
Company and delivered to the Trustee; and, upon the order of the Successor
Company, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debt Securities which previously shall have been signed and
delivered by or on behalf of the Company to the Trustee for authentication, and
any Debt Securities which the Successor Company thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Debt Securities
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such Debt Securities had been
issued at the date of the execution hereof.


 


In
case of any such consolidation, amalgamation, merger, sale or disposition such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities thereafter to be issued as may be appropriate.


 


48

















 


ARTICLE XI

SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS


 


Section 11.01.      Applicability
of Article.  The provisions of this Article XI
relating to discharge or defeasance of Debt Securities shall be applicable to
each series of Debt Securities except as otherwise specified pursuant to Section 2.03
for Debt Securities of such series.


 


Section 11.02.      Satisfaction
and Discharge of Indenture; Defeasance.


 


(a)           If
at any time the Company shall have delivered to the Trustee for cancellation
all Debt Securities of any series theretofore authenticated and delivered
(other than any Debt Securities of such series which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section 2.09
and Debt Securities for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Company as provided in Section 11.05)
or all Debt Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and the Company shall deposit with the Trustee as
trust funds the entire amount in cash sufficient to pay at final maturity or
upon redemption all Debt Securities of such series not theretofore delivered to
the Trustee for cancellation, including principal and premium, if any, and
interest due or to become due on such date of maturity or Redemption Date, as
the case may be, and if in either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of such Debt Securities herein expressly
provided for) with respect to the Debt Securities of such series, and the
Trustee, on demand of the Company accompanied by an Officers’ Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to the Debt Securities of such series.


 


(b)           Subject
to Sections 11.02(c), 11.03 and 11.07, the Company at any time may terminate,
with respect to Debt Securities of a particular series, all its obligations
under the Debt Securities of such series and this Indenture with respect to the
Debt Securities of such series (“legal defeasance option”) or the operation of (w) Sections
4.09 and 4.10, (x) any covenant made applicable to such Debt Securities
pursuant to Section 2.03, (y) Sections 6.01(d), (g) and (h) and
(z) as they relate to the Subsidiary Guarantors only, Sections 6.01(e) and
(f) (“covenant defeasance option”). If the Company exercises either its
legal defeasance option or its covenant defeasance option with respect to Debt
Securities of a particular series that are entitled to the benefit of the
Guarantee, the Guarantee will terminate with respect to that series of Debt
Securities. The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.


 


If
the Company exercises its legal defeasance option, payment of the Debt
Securities of the defeased series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of
the Debt Securities of the defeased series 


 


49

















 


may
not be accelerated because of an Event of Default specified in Sections
6.01(d), (g) and (h) and, with respect to the Subsidiary Guarantors
only, Sections 6.01(e) and (f).


 


Upon
satisfaction of the conditions set forth herein and upon request of the
Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.


 


(c)           Notwithstanding
clauses (a) and (b) above, the Company’s obligations in Sections
2.07, 2.09, 4.02, 4.03, 4.04, the last sentence of 4.05(a), 4.06(a), 5.01,
7.06, 11.05, 11.06 and 11.07 shall survive until the Debt Securities of the
defeased series have been paid in full. Thereafter, the Company’s obligations
in Sections 7.06, 11.05 and 11.06 shall survive.


 


Section 11.03.      Conditions
of Defeasance.  The Company may
exercise its legal defeasance option or its covenant defeasance option with
respect to Debt Securities of a particular series only if:


 


(a)           the
Company irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations for the payment of principal of, and premium, if any, and interest
on, the Debt Securities of such series to final maturity or redemption, as the
case may be;


 


(b)           the
Company delivers to the Trustee a certificate from a nationally recognized firm
of independent accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay the
principal, premium, if any, and interest when due on all the Debt Securities of
such series to final maturity or redemption, as the case may be;


 


(c)           91
days pass after the deposit is made and during the 91-day period no Default
specified in Section 6.01(e) or (f) with respect to the Company
occurs which is continuing at the end of the period;


 


(d)           no
Default has occurred and is continuing on the date of such deposit and after
giving effect thereto;


 


(e)           the
deposit does not constitute a default under any other agreement binding on the
Company and, if the Debt Securities of such series are subordinated pursuant to
Article XII, is not prohibited by Article XII;


 


(f)            the
Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company Act of 1940;


 


(g)           in
the event of the legal defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that the Company has received from
the Internal Revenue Service a ruling, or since the date of this Indenture
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance 


 


50

















 


and
will be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had not
occurred;


 


(h)           in
the event of the covenant defeasance option, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of Debt
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred;
and


 


(i)            the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and
discharge of the Debt Securities of such series as contemplated by this Article XI
have been complied with.


 


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


 


Section 11.04.      Application
of Trust Money.  The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant
to this Article XI. It shall apply the deposited money and the money from
U.S. Government Obligations through any paying agent and in accordance with
this Indenture to the payment of principal of, and premium, if any, and
interest on, the Debt Securities of the defeased series. In the event the Debt
Securities of the defeased series are subordinated pursuant to Article XII,
money and securities so held in trust are not subject to Article XII.


 


Section 11.05.      Repayment
to Company.  The Trustee and any
paying agent shall promptly turn over to the Company upon request any excess
money or securities held by them at any time.


 


Subject
to any applicable abandoned property law, the Trustee and any paying agent
shall pay to the Company upon request any money held by them for the payment of
principal, premium or interest that remains unclaimed for two years, and,
thereafter, Holders entitled to such money must look to the Company for payment
as general creditors.


 


Section 11.06.      Indemnity
for U.S. Government Obligations.  The
Company shall pay and shall indemnify the Trustee and the Holders against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.


 


Section 11.07.      Reinstatement.  If the Trustee or any paying agent is unable
to apply any money or U.S. Government Obligations in accordance with this Article XI
by reason of any legal proceeding or by reason of any order or judgment of any
court or government authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture and the Debt
Securities of the defeased series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article XI until such time as the
Trustee or any paying agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article XI.


 


51














 


ARTICLE XII  

SUBORDINATION OF DEBT SECURITIES AND GUARANTEE


 


Section 12.01.        Applicability
of Article; Agreement to Subordinate. 
The provisions of this Article XII shall only be applicable to the
Debt Securities of any series (Debt Securities of such series referred to in
this Article XII as “Subordinated Debt Securities”) designated, pursuant
to Section 2.03, as subordinated to Senior Indebtedness and any related
Guarantee of such Subordinated Debt Securities. Each Holder by accepting a
Subordinated Debt Security agrees that the Debt evidenced by such Subordinated
Debt Security and any related Guarantee of such Subordinated Debt Security is
subordinated in right of payment, to the extent and in the manner provided in
this Article XII, to the prior payment of all Senior Indebtedness and that
the subordination is for the benefit of and enforceable by the holders of
Senior Indebtedness. All provisions of this Article XII shall be subject
to Section 12.12.


 


Section 12.02.        Liquidation,
Dissolution, Bankruptcy.  Upon any
payment or distribution of the assets of the Company or the Subsidiary
Guarantors, as the case may be, to creditors (i) upon a liquidation or a
dissolution of the Company or the Subsidiary Guarantors, as the case may be, or
(ii) in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or the Subsidiary Guarantors, as the case
may be, or their respective property:


 


(a)           holders
of Senior Indebtedness of the Company or any Subsidiary Guarantor, as the case
may be, shall be entitled to receive payment in full in cash of such Senior
Indebtedness of such Person (including interest (if any), accruing on or after
the commencement of a proceeding in bankruptcy, whether or not allowed as a
claim against the Company or the Subsidiary Guarantors, as the case may be, in
such bankruptcy proceeding) before Holders of Subordinated Debt Securities and
any related Guarantee shall be entitled to receive any payment of principal of,
or premium, if any, or interest on, the Subordinated Debt Securities from the
Company, or any payment in respect of the Guarantee from the Subsidiary
Guarantors; and


 


(b)           until
the Senior Indebtedness of the Company or any Subsidiary Guarantor, as the case
may be, is paid in full, any distribution to which Holders of Subordinated Debt
Securities and any related Guarantee would be entitled but for this Article XII
shall be made to holders of Senior Indebtedness of the Company or the
Subsidiary Guarantors, as the case may be, as their interests may appear,
except that such Holders may receive capital stock and any debt securities that
are subordinated to Senior Indebtedness of the Company or the Subsidiary
Guarantors, as the case may be, to at least the same extent as the Subordinated
Debt Securities of the Company or the related Guarantee of any Subsidiary
Guarantor, respectively.


 


Section 12.03.        Default
on Senior Indebtedness.  The Company
and the Subsidiary Guarantors may not pay the principal of, or premium, if any,
or interest on, the Subordinated Debt Securities or any related Guarantee or
make any deposit pursuant to Article XI and may not repurchase, redeem or
otherwise retire (except, in the case of Subordinated Debt Securities that
provide for a mandatory sinking fund pursuant to Section 3.05, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.05) any Subordinated Debt Securities
(collectively, “pay the Subordinated Debt Securities”) if any principal,
premium or interest in respect of Senior Indebtedness of such Person is not
paid within any applicable grace period (including at maturity) or any other
default on Senior Indebtedness 


 


52

















 


of
such Person occurs and the maturity of such Senior Indebtedness is accelerated
in accordance with its terms unless, and until, the default has been cured or
waived and any such acceleration has been rescinded or such Senior Indebtedness
has been paid in full in cash; provided, however, that the Company and the
Subsidiary Guarantors may make payments on the Subordinated Debt Securities or
any related Guarantee without regard to the foregoing if the Company and the
Trustee receive written notice approving such payment from the Representative
of each issue of Designated Senior Indebtedness. During the continuance of any
other default with respect to any Designated Senior Indebtedness pursuant to
which the maturity thereof may be accelerated immediately without further
notice (except such notice as may be required to effect such acceleration) or
the expiration of any applicable grace periods, the Company and the Subsidiary
Guarantors may not make payments on the Subordinated Debt Securities or any
related Guarantee for a period (a “Payment Blockage Period”) commencing upon
the receipt by the Company and the Trustee (and if such Designated Senior
Indebtedness is Debt of a Subsidiary Guarantor, the Subsidiary Guarantor) of
written notice of such default from the Representative of any Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period (a “Blockage
Notice”) and ending 179 days thereafter (or earlier if such Payment Blockage
Period is terminated by written notice to the Trustee and the Company (and if
such Designated Senior Indebtedness is Debt of a Subsidiary Guarantor, the
Subsidiary Guarantor) from the Person or Persons who gave such Blockage Notice,
by repayment in full in cash of such Designated Senior Indebtedness or because
the default giving rise to such Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in Section 12.02 and the first
sentence of this Section 12.03), unless the holders of such Designated
Senior Indebtedness or the Representative of such holders shall have
accelerated the maturity of such Designated Senior Indebtedness, the Company
and the Subsidiary Guarantors may resume payments on the Subordinated Debt
Securities and related Guarantees after such Payment Blockage Period. Not more
than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to any number of issues of
Designated Senior Indebtedness during such period, unless otherwise specified
pursuant to Section 2.03 for the Subordinated Debt Securities of a series;
provided, however, that in no event may the total number of days during which
any Payment Blockage Period or Periods is in effect exceed 179 days in the aggregate
during any 360 consecutive day period. For purposes of this Section 12.03,
no default or event of default which existed or was continuing on the date of
the commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period shall be, or be
made, the basis of the commencement of a subsequent Payment Blockage Period by
the Representative of such Designated Senior Indebtedness, whether or not
within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 90
consecutive days.


 


Section 12.04.        Acceleration
of Payment of Debt Securities.  If
payment of the Subordinated Debt Securities is accelerated because of an Event
of Default, the Company shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of the acceleration.


 


Section 12.05.        When
Distribution Must Be Paid Over.  If a
distribution is made to Holders of Subordinated Debt Securities or a related
Guarantee that because of this Article XII 


 


53

















 


should
not have been made to them, the Holders who receive such distribution shall
hold it in trust for holders of Senior Indebtedness and pay it over to them as
their interests may appear.


 


Section 12.06.        Subrogation.  After all Senior Indebtedness is paid in full
and until the Subordinated Debt Securities are paid in full, Holders thereof
shall be subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article XII to holders of Senior Indebtedness which otherwise would have
been made to Holders of Subordinated Debt Securities is not, as between the
Company or the Subsidiary Guarantors, as the case may be, and such Holders, a
payment by the Company or the Subsidiary Guarantors, as the case may be, on
Senior Indebtedness.


 


Section 12.07.        Relative
Rights.  This Article XII
defines the relative rights of Holders of Subordinated Debt Securities and
holders of Senior Indebtedness. Nothing in this Indenture shall:


 


(a)           impair,
as between the Company or the Subsidiary Guarantors, as the case may be, and
Holders of Subordinated Debt Securities, the obligation of the Company or the
Subsidiary Guarantors, as the case may be, which is absolute and unconditional,
to pay principal of, and premium, if any, and interest on, the Subordinated
Debt Securities in accordance with their terms; or


 


(b)           prevent
the Trustee or any Holder of Subordinated Debt Securities from exercising its
available remedies upon an Event of Default, subject to the rights of holders
of Senior Indebtedness to receive distributions otherwise payable to Holders of
Subordinated Debt Securities.


 


Section 12.08.        Subordination
May Not Be Impaired by Company. 
No right of any holder of Senior Indebtedness to enforce the
subordination of the Debt evidenced by the Subordinated Debt Securities and the
Guarantee in respect thereof shall be impaired by any act or failure to act by
the Company or the Subsidiary Guarantors or by its failure to comply with this
Indenture.


 


Section 12.09.        Rights
of Trustee and Paying Agent.  Notwithstanding
Sections 12.02 and 12.03, the Trustee or any paying agent may continue to make
payments on Subordinated Debt Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such
payment, a responsible officer of the Trustee receives notice satisfactory to
it that payments may not be made under this Article XII. The Company, the
Registrar, any paying agent, a Representative or a holder of Senior
Indebtedness may give the notice; provided, however, that, if an issue of
Senior Indebtedness has a Representative, only the Representative may give the
notice on behalf of the Holders of the Senior Indebtedness of that issue.


 


The
Trustee in its individual or any other capacity may hold Senior Indebtedness
with the same rights it would have if it were not Trustee. The Registrar and
any paying agent may do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article XII with respect to
any Senior Indebtedness which may at any time be held by it, to the same extent
as any other holder of Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee 


 


54

















 


of
any of its rights as such holder. Nothing in this Article XII shall apply
to claims of, or payments to, the Trustee under or pursuant to Section 7.06.


 


Section 12.10.        Distribution
or Notice to Representative.  Whenever
a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative (if any).


 


Section 12.11.        Article XII
Not to Prevent Defaults or Limit Right to Accelerate.  The failure to make a payment pursuant to the
Subordinated Debt Securities, whether directly or pursuant to the Guarantee, by
reason of any provision in this Article XII shall not be construed as
preventing the occurrence of a Default. Nothing in this Article XII shall
have any effect on the right of the Holders or the Trustee to accelerate the
maturity of either the Subordinated Debt Securities or the Debt Securities, as
the case may be.


 


Section 12.12.        Trust
Moneys Not Subordinated.  Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article XI by the
Trustee for the payment of principal of, and premium, if any, and interest on,
the Subordinated Debt Securities or the Debt Securities shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article XII, and none of the Holders
thereof shall be obligated to pay over any such amount to the Company, the
Subsidiary Guarantors or any holder of Senior Indebtedness of the Company or
the Subsidiary Guarantors or any other creditor of the Company or the
Guarantor.


 


Section 12.13.        Trustee
Entitled to Rely.  Upon any payment
or distribution pursuant to this Article XII, the Trustee and the Holders
shall be entitled to rely upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to such Holders or
upon the Representatives for the holders of Senior Indebtedness for the purpose
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Debt of the
Company or the Subsidiary Guarantors, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XII. In the event that the Trustee determines,
in good faith, that evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XII, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article XII, and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to
all actions or omissions of actions by the Trustee pursuant to this Article XII.


 


Section 12.14.        Trustee
to Effectuate Subordination.  Each
Holder by accepting a Subordinated Debt Security authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the 


 


55

















 


Holders
of Subordinated Debt Securities and the holders of Senior Indebtedness as
provided in this Article XII and appoints the Trustee as attorney-in-fact
for any and all such purposes.


 


Section 12.15.        Trustee
Not Fiduciary for Holders of Senior Indebtedness.  The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and shall not be liable to
any such holders if it shall mistakenly pay over or distribute to Holders of
Subordinated Debt Securities or the Company or the Subsidiary Guarantors or any
other Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article XII or otherwise.


 


Section 12.16.        Reliance
by Holders of Senior Indebtedness on Subordination Provisions.  Each Holder by accepting a Subordinated Debt
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder
of any Senior Indebtedness, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Subordinated Debt Securities, to
acquire and continue to hold, or to continue to hold, such Senior Indebtedness
and such holder of Senior Indebtedness shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to hold, or
in continuing to hold, such Senior Indebtedness.


 


ARTICLE XIII

MISCELLANEOUS PROVISIONS


 


Section 13.01.        Successors
and Assigns of Company Bound by Indenture. 
All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company, the Subsidiary Guarantors
or the Trustee shall bind their respective successors and assigns, whether so
expressed or not.


 


Section 13.02.        Acts
of Board, Committee or Officer of Successor Company Valid.  Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any Successor
Company.


 


Section 13.03.        Required
Notices or Demands.  Any notice or
communication by the Company, the Subsidiary Guarantors or the Trustee to the
others is duly given if in writing in the English language and delivered in
Person or mailed by registered or certified mail (return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
other’s address:


 


If
to the Company or any Subsidiary Guarantor:


 


Kodiak
Oil & Gas Corp.

[ADDRESS]

Attention:
[                        ]

Telecopy No. [                                ]


 


If
to the Trustee:


 


[                                          ]


 


56

















 


The
Company, any Subsidiary Guarantor or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.


 


All
notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; on the first Business Day on
or after being sent, if telecopied and the sender receives confirmation of
successful transmission; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.


 


Any
notice required or permitted to a Holder by the Company, any Subsidiary
Guarantor or the Trustee pursuant to the provisions of this Indenture shall be
deemed to be properly mailed by being deposited postage prepaid in a post
office letter box in the United States addressed to such Holder at the address
of such Holder as shown on the Debt Security Register. Any report pursuant to Section 313
of the TIA shall be transmitted in compliance with subsection (c) therein.


 


Notwithstanding
the foregoing, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 2.03, shall be sufficiently given if given in the
manner specified pursuant to Section 2.03.


 


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


 


In
the event it shall be impracticable to give notice by publication, then such
notification as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose hereunder.


 


Failure
to mail a notice or communication to a Holder or any defect in it or any defect
in any notice by publication as to a Holder shall not affect the sufficiency of
such notice with respect to other Holders. If a notice or communication is
mailed or published in the manner provided above, it is conclusively presumed
duly given.


 


Section 13.04.        Indenture
and Debt Securities to Be Construed in Accordance with the Laws of the State of
New York.  THIS INDENTURE, EACH DEBT
SECURITY AND THE GUARANTEE SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE.


 


Section 13.05.        Officers’
Certificate and Opinion of Counsel to Be Furnished upon Application or Demand
by the Company.  Upon any application
or demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been 


 


57

















 


complied
with, except that in the case of any such application or demand as to which the
furnishing of such document is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.


 


Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the Person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.


 


Section 13.06.        Payments
Due on Legal Holidays.  In any case
where the date of maturity of interest on or principal of and premium, if any,
on the Debt Securities of a series or the date fixed for redemption or
repayment of any Debt Security or the making of any sinking fund payment shall
not be a Business Day at any Place of Payment for the Debt Securities of such
series, then payment of interest or principal and premium, if any, or the
making of such sinking fund payment need not be made on such date at such Place
of Payment, 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 date of maturity or
the date fixed for redemption, and no interest shall accrue for the period
after such date. If a record date is not a Business Day, the record date shall
not be affected.


 


Section 13.07.        Provisions
Required by TIA to Control.  If and
to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required
to be included in this Indenture by any of Sections 310 to 318, inclusive, of
the TIA, such required provision shall control.


 


Section 13.08.        Computation
of Interest on Debt Securities.  Interest,
if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section 2.03.


 


Section 13.09.        Rules by
Trustee, Paying Agent and Registrar. 
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar and any paying agent may make reasonable rules for
their functions.


 


Section 13.10.        No
Recourse Against Others.  Each of the
Subsidiary Guarantors’ and the Company’s directors, officers, employees,
incorporators and capital stockholders, as such, shall have no liability for
any obligations of the Subsidiary Guarantors or the Company under the Debt
Securities, this Indenture or the Guarantee or for any claim based on, in
respect of, or by reason of, such obligations or their creation. By accepting a
Debt Security, each Holder shall be deemed to have waived and released all such
liability. The waiver and release shall be part of the consideration for the
issue of the Debt Securities.


 


58

















 


Section 13.11.        Severability.  In case any provision in this Indenture or
the Debt Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


Section 13.12.        Effect
of Headings.  The article and section
headings herein and in the Table of Contents are for convenience only and shall
not affect the construction hereof.


 


Section 13.13.        Indenture
May Be Executed in Counterparts. 
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.


 


ARTICLE XIV  

GUARANTEE


 


Section 14.01.        Unconditional
Guarantee.


 


(a)           Notwithstanding
any provision of this Article XIV to the contrary, the provisions of this Article XIV
shall be applicable only to, and inure solely to the benefit of, the Debt
Securities of any series designated, pursuant to Section 2.03, as entitled
to the benefits of the Guarantee of each of the Subsidiary Guarantors.


 


(b)           For
value received, each of the Subsidiary Guarantors hereby fully, unconditionally
and absolutely guarantees (the “Guarantee”) to the Holders and to the Trustee
the due and punctual payment of the principal of, and premium, if any, and
interest on the Debt Securities and all other amounts due and payable under
this Indenture and the Debt Securities by the Company, when and as such
principal, premium, if any, and interest shall become due and payable, whether
at the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise, according to the terms of the Debt Securities and this Indenture,
subject to (i) the limitations set forth in Section 14.03 and (ii) in
the case of the Guarantee of the Subordinated Debt Securities, to the
subordination provisions contained in Article XII.


 


(c)           Failing
payment when due of any amount guaranteed pursuant to the Guarantee, for
whatever reason, each of the Subsidiary Guarantors will be jointly and
severally obligated to pay the same immediately, subject, in the case of the
Guarantee of the Subordinated Debt Securities, to the subordination provisions
contained in Article XII. The Guarantee hereunder (other than the
Guarantee of Subordinated Debt Securities) is intended to be a general, unsecured,
senior obligation of each of the Subsidiary Guarantors and will rank pari passu
in right of payment with all Debt of each Subsidiary Guarantor that is not, by
its terms, expressly subordinated in right of payment to the Guarantee. Each of
the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be
full, unconditional and absolute, irrespective of the validity, regularity or
enforceability of the Debt Securities, the Guarantee (including the Guarantee
of any other Subsidiary Guarantor) or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Debt Securities
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company or any other Subsidiary Guarantor, or any action to enforce
the same or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of any of the Subsidiary Guarantors. Each of the
Subsidiary Guarantors hereby agrees that in the event of a default in 


 


59

















 


payment
of the principal of, or premium, if any, or interest on the Debt Securities,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise, legal proceedings may be instituted by the Trustee on
behalf of the Holders or, subject to Section 6.04, by the Holders, on the
terms and conditions set forth in this Indenture, directly against such
Subsidiary Guarantor to enforce the Guarantee without first proceeding against
the Company or any other Subsidiary Guarantor.


 


(d)           The
obligations of each of the Subsidiary Guarantors under this Article XIV
shall be as aforesaid full, unconditional and absolute and shall not be
impaired, modified, released or limited by any occurrence or condition
whatsoever, including, without limitation, (A) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or any
change in, any of the obligations and liabilities of the Company or any of the
Subsidiary Guarantors contained in the Debt Securities or this Indenture, (B) any
impairment, modification, release or limitation of the liability of the
Company, any of the Subsidiary Guarantors or any of their estates in
bankruptcy, or any remedy for the enforcement thereof, resulting from the
operation of any present or future provision of any applicable Bankruptcy Law,
as amended, or other statute or from the decision of any court, (C) the
assertion or exercise by the Company, any of the Subsidiary Guarantors or the
Trustee of any rights or remedies under the Debt Securities or this Indenture
or their delay in or failure to assert or exercise any such rights or remedies,
(D) the assignment or the purported assignment of any property as security
for the Debt Securities, including all or any part of the rights of the Company
or any of the Subsidiary Guarantors under this Indenture, (E) the
extension of the time for payment by the Company or any of the Subsidiary
Guarantors of any payments or other sums or any part thereof owing or payable
under any of the terms and provisions of the Debt Securities or this Indenture
or of the time for performance by the Company or any of the Subsidiary
Guarantors of any other obligations under or arising out of any such terms and
provisions or the extension or the renewal of any thereof, (F) the
modification or amendment (whether material or otherwise) of any duty,
agreement or obligation of the Company or any of the Subsidiary Guarantors set
forth in this Indenture, (G) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of, or other similar proceeding affecting, the
Company or any of the Subsidiary Guarantors or any of their respective assets,
or the disaffirmance of the Debt Securities, the Guarantee or this Indenture in
any such proceeding, (H) the release or discharge of the Company or any of
the Subsidiary Guarantors from the performance or observance of any agreement,
covenant, term or condition contained in any of such instruments by operation
of law, (I) the unenforceability of the Debt Securities, the Guarantee or
this Indenture or (J) any other circumstances (other than payment in full
or discharge of all amounts guaranteed pursuant to the Guarantee) which might
otherwise constitute a legal or equitable discharge of a surety or guarantor.


 


(e)           Each
of the Subsidiary Guarantors hereby (A) waives diligence, presentment,
demand of payment, filing of claims with a court in the event of the merger,
insolvency or bankruptcy of the Company or any of the Subsidiary Guarantors,
and all demands whatsoever, (B) acknowledges that any agreement,
instrument or document evidencing the Guarantee may be transferred and that the
benefit of its obligations hereunder shall extend to each holder of any
agreement, instrument or document evidencing the Guarantee without notice to it
and (C) 


 


60

















 


covenants
that the Guarantee will not be discharged except by complete performance of the
Guarantee. Each of the Subsidiary Guarantors further agrees that if at any time
all or any part of any payment theretofore applied by any Person to the
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization of
the Company or any of the Subsidiary Guarantors, the Guarantee shall, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application, and the Guarantee
shall continue to be effective or be reinstated, as the case may be, as though
such application had not been made.


 


(f)            Each
of the Subsidiary Guarantors shall be subrogated to all rights of the Holders
and the Trustee against the Company in respect of any amounts paid by such
Subsidiary Guarantor pursuant to the provisions of this Indenture, provided,
however, that such Subsidiary Guarantor, shall not be entitled to enforce or to
receive any payments arising out of, or based upon, such right of subrogation
until all of the Debt Securities and the Guarantee shall have been paid in full
or discharged.


 


Section 14.02.        Execution
and Delivery of Guarantee.  To
further evidence the Guarantee set forth in Section 14.01, each of the
Subsidiary Guarantors hereby agrees that a notation relating to such Guarantee,
substantially in the form attached hereto as Annex A, shall be endorsed on each
Debt Security entitled to the benefits of the Guarantee authenticated and
delivered by the Trustee and executed by either manual or facsimile signature
of an officer of such Subsidiary Guarantor, or in the case of a Subsidiary
Guarantor that is a limited partnership, an officer of the general partner of
each Subsidiary Guarantor. Each of the Subsidiary Guarantors hereby agrees that
the Guarantee set forth in Section 14.01 shall remain in full force and
effect notwithstanding any failure to endorse on each Debt Security a notation
relating to the Guarantee. If any officer of any Subsidiary Guarantor, or in
the case of a Subsidiary Guarantor that is a limited partnership, any officer
of the general partner of the Subsidiary Guarantor, whose signature is on this
Indenture or a Debt Security no longer holds that office at the time the
Trustee authenticates such Debt Security or at any time thereafter, the
Guarantee of such Debt Security shall be valid nevertheless. The delivery of
any Debt 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 Subsidiary Guarantors.


 


The
Trustee hereby accepts the trusts in this Indenture upon the terms and
conditions herein set forth.


 


Section 14.03.        Limitation
on Subsidiary Guarantors’ Liability. 
Each Subsidiary Guarantor and by its acceptance hereof each Holder of a
Debt Security entitled to the benefits of the Guarantee hereby confirm that it
is the intention of all such parties that the guarantee by such Subsidiary
Guarantor pursuant to the Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Federal or state law. To effectuate the
foregoing intention, the Holders of a Debt Security entitled to the benefits of
the Guarantee and the Subsidiary Guarantors hereby irrevocably agree that the
obligations of each Subsidiary Guarantor under the Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor and to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under the Guarantee, not
result in the obligations of such 


 


61

















 


Subsidiary
Guarantor under the Guarantee constituting a fraudulent conveyance or
fraudulent transfer under Federal or state law.


 


Section 14.04.        Release
of Subsidiary Guarantors from Guarantee.


 


(a)           Notwithstanding
any other provisions of this Indenture, the Guarantee of any Subsidiary
Guarantor may be released upon the terms and subject to the conditions set
forth in Section 11.02(b) and in this Section 14.04. Provided
that no Default shall have occurred and shall be continuing under this
Indenture, the Guarantee incurred by a Subsidiary Guarantor pursuant to this Article XIV
shall be unconditionally released and discharged (i) automatically upon (A) any
sale, exchange or transfer, whether by way of merger or otherwise, to any
Person that is not an Affiliate of the Company, of all of the Company’s direct
or indirect limited partnership or other equity interests in such Subsidiary
Guarantor (provided such sale, exchange or transfer is not prohibited by this
Indenture) or (B) the merger of such Subsidiary Guarantor into the Company
or any other Subsidiary Guarantor or the liquidation and dissolution of such
Subsidiary Guarantor (in each case to the extent not prohibited by this
Indenture) or (ii) upon the Company’s delivery of a written notice to the
Trustee of the release or discharge of all guarantees by such Subsidiary
Guarantor of any Debt of the Company other than obligations arising under this
Indenture and any Debt Securities issued hereunder, except a discharge or
release by or as a result of payment under such guarantees.


 


(b)           The
Trustee shall deliver an appropriate instrument evidencing any release of a
Subsidiary Guarantor from the Guarantee upon receipt of a written request of
the Company accompanied by an Officers’ Certificate and an Opinion of Counsel
to the effect that the Subsidiary Guarantor is entitled to such release in
accordance with the provisions of this Indenture. Any Subsidiary Guarantor not
so released shall remain liable for the full amount of principal of (and
premium, if any) and interest on the Debt Securities entitled to the benefits
of the Guarantee as provided in this Indenture, subject to the limitations of Section 14.03.


 


Section 14.05.        Subsidiary
Guarantor Contribution.  In order to
provide for just and equitable contribution among the Subsidiary Guarantors,
the Subsidiary Guarantors hereby agree, inter se, that in the event any payment
or distribution is made by any Subsidiary Guarantor (a “Funding Guarantor”)
under the Guarantee, such Funding Guarantor shall be entitled to a contribution
from each other Subsidiary Guarantor (if any) in a pro rata amount based on the
net assets of each Subsidiary Guarantor (including the Funding Guarantor) for
all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company’s obligations with respect to the Debt Securities or
any other Subsidiary Guarantor’s obligations with respect to the Guarantee.


 


[Remainder
of This Page Intentionally Left Blank.]


 


62

















 


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


 


KODIAK
OIL & GAS CORP.


 


 


By:


Lynn
A. Peterson


President
and Chief Executive Officer


 


[NAME
OF SUBSIDIARY GUARANTOR(S)]


 


 


By:


Name:


Title:


 


[                                          ],
as Trustee


 


By:


Name:


Title:


 


63

















 


ANNEX A


 


NOTATION OF GUARANTEE


 


Each
of the Subsidiary Guarantors (which term includes any successor Person under
the Indenture), has fully, unconditionally and absolutely guaranteed, to the
extent set forth in the Indenture and subject to the provisions in the
Indenture, the due and punctual payment of the principal of, and premium, if
any, and interest on the Debt Securities and all other amounts due and payable
under the Indenture and the Debt Securities by the Company.


 


The
obligations of the Subsidiary Guarantors to the Holders of Debt Securities and
to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article XIV of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee.


 


[NAME
OF SUBSIDIARY GUARANTOR(S)]


 


By:


Name:


Title:


 


A-1