exv4w5



 





EXHIBIT 4.5




INDENTURE




Dated as of




November __, 2005




between




Fidelity National Title Group, Inc.




and




[                      ], as trustee





 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Compliance Certificates and Opinions
	 	 	8	 
	Section 1.3. Form of Documents Delivered to Trustee
	 	 	9	 
	Section 1.4. Acts of Holders
	 	 	10	 
	Section 1.5. Notices, etc., to Trustee and Company
	 	 	11	 
	Section 1.6. Notice to Holders; Waiver
	 	 	11	 
	Section 1.7. Headings and Table of Contents
	 	 	12	 
	Section 1.8. Successors and Assigns
	 	 	12	 
	Section 1.9. Separability
	 	 	12	 
	Section 1.10. Benefits of Indenture
	 	 	12	 
	Section 1.11. Governing Law
	 	 	12	 
	Section 1.12. Legal Holidays
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 2 SECURITY FORMS
	 	 	13	 
	Section 2.1. Forms Generally
	 	 	13	 
	Section 2.2. Form of Trustee’s Certificate of Authentication
	 	 	13	 
	Section 2.3. Securities in Global Form
	 	 	14	 
	Section 2.4. Form of Legend for Securities in Global Form
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 3 THE SECURITIES
	 	 	15	 
	Section 3.1. Amount Unlimited; Issuable in Series
	 	 	15	 
	Section 3.2. Denominations
	 	 	18	 
	Section 3.3. Execution, Authentication, Delivery and Dating
	 	 	18	 
	Section 3.4. Temporary Securities
	 	 	20	 
	Section 3.5. Registration, Transfer and Exchange
	 	 	21	 
	Section 3.6. Replacement Securities
	 	 	24	 
	Section 3.7. Payment of Interest; Interest Rights Preserved
	 	 	25	 
	Section 3.8. Persons Deemed Owners
	 	 	26	 
	Section 3.9. Cancellation
	 	 	27	 
	Section 3.10. Computation of Interest
	 	 	27	 






i









 





	 	 	 	 	 
	 	 	Page	 
	Section 3.11. CUSIP Numbers
	 	 	27	 
	Section 3.12. Currency of Payment in Respect of Securities
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 4 SATISFACTION, DISCHARGE AND DEFEASANCE
	 	 	28	 
	Section 4.1. Termination of Company’s Obligations Under the Indenture
	 	 	28	 
	Section 4.2. Application of Trust Funds
	 	 	29	 
	Section 4.3. Applicability of Defeasance Provisions; Company’s Option to
Effect Defeasance or Covenant Defeasance
	 	 	29	 
	Section 4.4. Defeasance
	 	 	29	 
	Section 4.5. Covenant Defeasance
	 	 	30	 
	Section 4.6. Conditions to Defeasance or Covenant Defeasance
	 	 	30	 
	Section 4.7. Deposited Money and Government Obligations to Be Held in Trust
	 	 	32	 
	Section 4.8. Repayment to Company
	 	 	33	 
	Section 4.9. Indemnity for Government Obligations
	 	 	33	 
	Section 4.10. Reinstatement
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 5 DEFAULTS AND REMEDIES
	 	 	33	 
	Section 5.1. Events of Default
	 	 	33	 
	Section 5.2. Acceleration; Rescission and Annulment
	 	 	35	 
	Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	35	 
	Section 5.4. Trustee May File Proofs of Claim
	 	 	36	 
	Section 5.5. Trustee May Enforce Claims Without Possession of Securities or Coupons
	 	 	37	 
	Section 5.6. Delay or Omission Not Waiver
	 	 	37	 
	Section 5.7. Waiver of Past Defaults
	 	 	37	 
	Section 5.8. Control by Majority
	 	 	38	 
	Section 5.9. Limitation on Suits by Holders
	 	 	38	 
	Section 5.10. Rights of Holders to Receive Payment
	 	 	38	 
	Section 5.11. Application of Money Collected
	 	 	39	 
	Section 5.12. Restoration of Rights and Remedies
	 	 	39	 
	Section 5.13. Rights and Remedies Cumulative
	 	 	39	 
	Section 5.14. Waiver of Stay or Extension Laws
	 	 	39	 
	Section 5.15. Undertaking for Costs
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 6 THE TRUSTEE
	 	 	40	 
	Section 6.1. Certain Duties and Responsibilities of the Trustee
	 	 	40	 






ii









 





	 	 	 	 	 
	 	 	Page	 
	Section 6.2. Rights of Trustee
	 	 	40	 
	Section 6.3. Trustee May Hold Securities
	 	 	42	 
	Section 6.4. Money Held in Trust
	 	 	42	 
	Section 6.5. Trustee’s Disclaimer
	 	 	42	 
	Section 6.6. Notice of Defaults
	 	 	42	 
	Section 6.7. Reports by Trustee to Holders
	 	 	42	 
	Section 6.8. Securityholder Lists
	 	 	42	 
	Section 6.9. Compensation and Indemnity
	 	 	43	 
	Section 6.10. Replacement of Trustee
	 	 	44	 
	Section 6.11. Acceptance of Appointment by Successor
	 	 	45	 
	Section 6.12. Eligibility; Disqualification
	 	 	46	 
	Section 6.13. Merger, Conversion, Consolidation or Succession to Business
	 	 	47	 
	Section 6.14. Appointment of Authenticating Agent
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 7 CONSOLIDATION, MERGER OR SALE BY THE COMPANY
	 	 	48	 
	Section 7.1. Consolidation, Merger or Sale of Assets Permitted
	 	 	48	 
	Section 7.2. Successor Person Substituted for Company
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 8 SUPPLEMENTAL INDENTURES
	 	 	49	 
	Section 8.1. Supplemental Indentures Without Consent of Holders
	 	 	49	 
	Section 8.2. Supplemental Indentures With Consent of Holders
	 	 	50	 
	Section 8.3. Compliance with Trust Indenture Act
	 	 	52	 
	Section 8.4. Execution of Supplemental Indentures
	 	 	52	 
	Section 8.5. Effect of Supplemental Indentures
	 	 	52	 
	Section 8.6. Reference in Securities to Supplemental Indentures
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 9 COVENANTS
	 	 	52	 
	Section 9.1. Payment of Principal, Premium, if any, and Interest
	 	 	52	 
	Section 9.2. Maintenance of Office or Agency
	 	 	52	 
	Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money
	 	 	54	 
	Section 9.4. Corporate Existence
	 	 	55	 
	Section 9.5. [Intentionally omitted]
	 	 	55	 
	Section 9.6. Reports by the Company
	 	 	55	 
	Section 9.7. Annual Review Certificate
	 	 	55	 
	Section 9.8. Limitation on Liens
	 	 	56	 






iii









 





	 	 	 	 	 
	 	 	Page	 
	Section 9.9. [Intentionally omitted]
	 	 	56	 
	Section 9.10. Taxes
	 	 	56	 
	Section 9.11. Additional Amounts
	 	 	57	 
	Section 9.12. Calculation of Original Issue Discount
	 	 	57	 
	 
	 	 	 	 
	ARTICLE 10 REDEMPTION
	 	 	58	 
	Section 10.1. Applicability of Article
	 	 	58	 
	Section 10.2. Election to Redeem; Notice to Trustee
	 	 	58	 
	Section 10.3. Selection of Securities to Be Redeemed
	 	 	58	 
	Section 10.4. Notice of Redemption
	 	 	58	 
	Section 10.5. Deposit of Redemption Price
	 	 	59	 
	Section 10.6. Securities Payable on Redemption Date
	 	 	60	 
	Section 10.7. Securities Redeemed in Part
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 11 SINKING FUNDS
	 	 	61	 
	Section 11.1. Applicability of Article
	 	 	61	 
	Section 11.2. Satisfaction of Sinking Fund Payments with Securities
	 	 	61	 
	Section 11.3. Redemption of Securities for Sinking Fund
	 	 	61	 






CROSS-REFERENCE TABLE




	 	 	 
	TRUST INDENTURE ACT SECTION
	 	INDENTURE SECTION
	 
	 	 
	SECTION 310(a)(1)
	 	6.10, 6.12
	(a) (2)
	 	6.12
	(a) (3)
	 	NOT APPLICABLE
	(a) (4)
	 	NOT APPLICABLE
	(a) (5)
	 	6.12
	(b)
	 	6.10, 6.12
	SECTION 311(a)
	 	6.3
	(b)
	 	6.3
	SECTION 312(a)
	 	6.8
	(b)
	 	6.8
	(c)
	 	6.8
	SECTION 313(a)
	 	6.7
	(b)
	 	6.7
	(c)
	 	6.7
	(d)
	 	6.7
	SECTION 314(a)
	 	9.6, 9.7
	(b)
	 	NOT APPLICABLE
	(c) (1)
	 	1.2






iv









 





	 	 	 
	(c) (2)
	 	1.2
	(c) (3)
	 	NOT APPLICABLE
	(d)
	 	NOT APPLICABLE
	(e)
	 	1.2
	SECTION 315(a)
	 	6.1
	(b)
	 	6.6
	(c)
	 	6.1
	(d)
	 	6.1
	(e)
	 	5.15
	SECTION 316(a)
	 	1.1
	(a) (1) (A)
	 	5.8
	(a) (1) (B)
	 	5.7
	(a) (2)
	 	NOT APPLICABLE
	(b)
	 	5.10
	(c)
	 	1.4
	SECTION 317(a) (1)
	 	5.3
	(a) (2)
	 	5.4
	(b)
	 	9.3
	SECTION 318(a)
	 	1.11







			
	NOTE:	 	This cross-reference table shall not, for any purpose, be deemed to be a part of the
Indenture.








v









 





          INDENTURE, dated as of November ___, 2005, between Fidelity National Title Group, Inc., a
Delaware corporation (the “Company”) and      , a      
(the “Trustee”).




RECITALS




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




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




          For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the
Holders of the Securities:




ARTICLE 1




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




     Section 1.1. Definitions. For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:




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




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




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




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



          “Act” shall have the meaning set forth in Section 1.4(a).




          “Additional Amounts” means any additional amounts which, pursuant to Section 3.1(b)(18), are
required by the terms of the Securities of any series, under circumstances specified pursuant to
Section 3.1(b)(18), to be paid by the Company in respect of certain Securities of such series
specified pursuant to Section 3.1(b)(18).




          “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by, or under direct or indirect common control with, such specified Person. For
purposes of this definition, “control” 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.




          “Agent” means any Paying Agent or Registrar.




          “Authenticating Agent” means any authenticating agent appointed by the Trustee pursuant to
Section 6.14.




          “Authorized Newspaper” means a newspaper of general circulation, in the official language of
the country of publication or in the English language, customarily published on each Business Day
whether or not published on Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or different Authorized
Newspapers.




          “Bankruptcy Law” shall have the meaning set forth in Section 5.1.




          “Bearer Security” means any Security issued hereunder which is payable to bearer.




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




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




          “Business Day” when used with respect to any Place of Payment or any other particular location
referred to in this Indenture or in the Securities, means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or particular location
are authorized or obligated by law or executive order to close.




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




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




          “Company Order” and “Company Request” mean, respectively, a written order or request signed in
the name of the Company by two Officers, one of whom must be the Chairman of the Board, the
President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller or
any Vice President of the Company.




2









 





          “Consolidated Tangible Assets” means, with respect to the Company as at any date, the total
assets of the Company and its consolidated Subsidiaries, less
goodwill, each determined in accordance with GAAP as they
appear on the most recently prepared consolidated balance sheet of the Company as of the end of a
fiscal quarter.




          “Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government
of the country or the confederation which issued such Foreign Currency and, for the settlement of
transactions, by a central bank or other public institutions of or within the international banking
community, or (ii) any currency unit or composite currency for the purposes for which it was
established.




          “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office at the date hereof is
located at [       ], New York, New York, [       ], Attention: [      
].




          “Credit Agreement” shall have the meaning set forth in Section 9.8(b).




          “Currency” means Dollars or any Foreign Currency.




          “Custodian” shall have the meaning set forth in Section 5.1.




          “Debt” means indebtedness for borrowed money or evidenced by bonds, notes, debentures or other
similar instruments.




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




          “Defaulted Interest” shall have the meaning set forth in Section 3.7(b).




          “Depository” when used with respect to the Securities of or within any series issuable or
issued in whole or in part in global form, means the Person designated as Depository by the Company
pursuant to Section 3.1 and its successors in such capacity, and if at any time there is more than
one such Person, shall be a collective reference to such Persons.




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




          “Event of Default” shall have the meaning set forth in Section 5.1.




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




          “GAAP” means generally accepted accounting principles in the United States as in effect on the
date of application thereof.




3









 





          “Government Obligations” means securities which are (i) direct obligations of the United
States of America or the other government or governments in the confederation which issued the
Foreign Currency in which the principal of or any premium or interest on the relevant Security
shall be payable, in each case where the payment or payments thereunder are supported by the full
faith and credit of such government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of America or such
other government or governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United States of America or
such other government or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such Government Obligation held
by such custodian for the account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.




          “Holder” means, with respect to a Bearer Security, a bearer thereof or of a coupon
appertaining thereto and, with respect to a Registered Security, a person in whose name a Security
is registered on the Register.




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




          “Indexed Security” means a Security the terms of which provide that the principal amount
thereof payable at Stated Maturity may be more or less than the principal face amount thereof at
original issuance.




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




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




          “Lien” means any mortgage, pledge, lien, charge, security interest, conditional sale or other
title retention agreement or other encumbrance of any nature whatsoever.




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




          “Officer” means the Chairman of the Board, the President, any Vice President, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of the Company.




4









 





          “Officers’ Certificate”, when used with respect to the Company, means a certificate signed by
two Officers, one of whom must be the Chairman of the Board, the President, the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Controller or a Vice President of the Company.




          “Opinion of Counsel” means a written opinion from the general counsel of the Company or other
legal counsel. Such counsel may be an employee of or counsel to the Company.




          “Original Issue Discount Security” means any Security which provides for an amount less than
the stated principal amount thereof to be due and payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2.




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




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




          (ii) Securities, or portions thereof, 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 Securities and any coupons appertaining thereto, provided
that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provisions therefor satisfactory to the Trustee have been made;




          (iii) Securities, except to the extent provided in Sections 4.4 and 4.5, with respect to which
the Company has effected defeasance and/or covenant defeasance as provided in Article 4; and




          (iv) which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;




          provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, or whether sufficient funds are available for
redemption or for any other purpose, and for the purpose of making the calculations required by
Section 313 of the Trust Indenture Act, (a) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and that shall be deemed
to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such determination, upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.2, (b) the principal
amount of any Indexed Security that may be counted in making such determination and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount of




5









 




such Indexed Security at original issuance, unless otherwise provided in or pursuant to this
Indenture, (c) the principal amount of a Security denominated in a Foreign Currency shall be the
Dollar equivalent, determined on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date
of original issuance of such Security of the amount determined as provided in (a) above) of such
Security, and (d) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.




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




          “Periodic Offering” means an offering of Securities of a series from time to time the specific
terms of which Securities, including, without limitation, the rate or rates of interest or formula
for determining the rate or rates of interest thereon, if any, the Maturity thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the Company upon the
issuance of such Securities.




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




          “Place of Payment”, when used with respect to the Securities of or within any series, means
the place or places where the principal of, premium, if any, and interest on such Securities are
payable as specified or contemplated by Sections 3.1 and 9.2.




          “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.




          “Principal amount”, when used with respect to any Security, means the amount of principal, if
any, payable in respect thereof at Maturity; provided, however, that when used with respect to an
Indexed Security in any context other than the making of payments at Maturity, “principal amount”
means the principal face amount of such Indexed Security at original issuance.




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




6









 





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




          “Refinancing Debt” shall have the meaning set forth in Section 9.8(b).




          “Register” shall have the meaning set forth in Section 3.5.




          “Registered Security” means any Security issued hereunder and registered as to principal and
interest in the Register.




          “Registrar” shall have the meaning set forth in Section 3.5.




          “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of or within any series means the date specified for that purpose as contemplated by Section 3.1.




          “Responsible Officer”, when used with respect to the Trustee, shall mean any vice president,
any assistant vice president, any senior trust officer, any trust officer, or any officer of the
Trustee customarily performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is referred because of
his knowledge of and familiarity with a particular subject and who shall have direct responsibility
for the administration of this Indenture.




          “Restricted Subsidiary” means any Subsidiary of the Company which (i) is Chicago Title
Insurance Company, an insurance company organized under the laws of Missouri, Fidelity National
Title Insurance Company, an insurance company organized under the laws of California, Security
Union Title Insurance Company, an insurance company organized under the laws of California, Ticor
Title Insurance Company, an insurance company organized under the laws of California, Ticor Title
Insurance Company of Florida, an insurance company organized under the laws of Florida, or Alamo
Title Insurance, an insurance company organized under the laws of Texas, and any Person successor
to any of the foregoing insurance companies or (ii) owns, directly or indirectly, the capital stock
of any Subsidiary described in clause (i) of this definition.




          “Secured Debt” shall have the meaning set forth in Section 9.8(a).




          “Security” or “Securities” has the meaning stated in the first recital of this Indenture and
more particularly means a Security or Securities of the Company issued, authenticated and delivered
under this Indenture.




          “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.7.




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




7









 





          “Subsidiary” means (i) any corporation, at least a majority of the total voting power of whose
outstanding Voting Stock is at the date of determination owned, directly or indirectly, by the
Company and/or one or more other Subsidiaries of the Company, and (ii) any Person (other than a
corporation) in which the Company and/or one or more other Subsidiaries of the Company own,
directly or indirectly, at the date of determination, at least a majority ownership interest.




          “Trust Indenture Act” means the Trust Indenture Act of 1939 as in effect on the date of this
Indenture, except as provided in Section 8.3; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.




          “Trustee” means the party named as such in the first paragraph of this Indenture until a
successor Trustee replaces it pursuant to the applicable provisions of this Indenture, and
thereafter means such successor Trustee and if, at any time, there is more than one Trustee,
“Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.




          “United States” means, unless otherwise specified with respect to the Securities of any series
as contemplated by Section 3.1, the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas subject to its
jurisdiction.




          “United States Alien”, except as otherwise provided with respect to the Securities of any
series as contemplated by Section 3.1, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary
of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for
United States Federal income tax purposes, a foreign corporation, a non-resident alien individual
or a non-resident alien fiduciary of a foreign estate or trust.




          “U.S. Person” means, unless otherwise specified with respect to the Securities of any series
as contemplated by Section 3.1, any citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under the laws of the United States, any
estate the income of which is subject to United States federal income taxation regardless of its
source, or any trust whose administration is subject to the primary supervision of a United States
court and which has one or more United States fiduciaries who have the authority to control all
substantial decisions of the trust.




          “Voting Stock” means, with respect to any corporation, securities of any class or series of
such corporation, the holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors of the corporation.




     Section 1.2. Compliance Certificates and Opinions. Upon any application or request by
the Company to the Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such



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conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.



          Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than pursuant to Sections 2.3 and 9.7 and the last paragraph of
Section 3.3) shall include:





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




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




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




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



     Section 1.3. Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such matters in one or
several documents.



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




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




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     Section 1.4. Acts of Holders.



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




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




          (c) The ownership of Bearer Securities may be proved by the production of such Bearer
Securities or by a certificate executed by any trust company, bank, banker or other depository,
wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such depository, or exhibited to
it, the Bearer Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (i) another such certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, (ii) such Bearer Security is produced to
the Trustee by some other Person, (iii) such Bearer Security is surrendered in exchange for a
Registered Security or (iv) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems sufficient.




          (d) The ownership of Registered Securities shall be proved by the Register.




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




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          (f) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.




     Section 1.5. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed with,




          (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and sent by facsimile
(with confirmation of receipt), overnight delivery service or mail, first-class postage
prepaid, to the Trustee at its [Corporate Trust Office], Attention: [Corporate Trust
Administration], or




          (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and sent by facsimile
(with confirmation of receipt), overnight delivery service or mail, first-class postage
prepaid, to the Company addressed to it at Fidelity National Title Group, Inc., 601
Riverside Avenue, Jacksonville, Florida 32204, Attention: Chief Financial Officer or at any
other address previously furnished in writing to the Trustee by the Company.



     Section 1.6. Notice to Holders; Waiver. Where this Indenture provides for notice to
Holders of any event, (i) if any of the Securities affected by such event are Registered
Securities, such notice to the Holders thereof shall be sufficiently given (unless otherwise herein
or in the terms of such Registered Security expressly provided) if in writing and sent by overnight
delivery service or mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Register, within the time prescribed for the giving of
such notice, and (ii) if any of the Securities affected by such event are Bearer Securities, notice
to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized Newspaper in New York, New
York, and in such other city or cities, if any, as may be specified as contemplated by Section 3.1.
In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case



11









 






where notice is given to Holders by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such notice with respect
to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.



          If by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice as provided above, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder. If it is impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu thereof as shall be
made with the approval of the Trustee shall constitute a sufficient publication of such notice.




          Any request, demand, authorization, direction, notice, consent or waiver required or permitted
under this Indenture shall be in the English language, except that any published notice may be in
an official language of the country of publication. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.




     Section 1.7. Headings and Table of Contents. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the construction hereof.



     Section 1.8. Successors and Assigns. All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns, whether so expressed or not.



     Section 1.9. Separability. In case any provision of this Indenture or the Securities
shall be invalid, illegal or unenforceable, then, to the extent permitted by applicable law, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.



     Section 1.10. Benefits of Indenture. Nothing in this Indenture or in the Securities,
expressed or implied, shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.



     Section 1.11. Governing Law. THIS INDENTURE, THE SECURITIES AND ANY COUPONS
APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Indenture is subject to the Trust Indenture Act and if any provision hereof
limits, qualifies or conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.



     Section 1.12. Legal Holidays. In any case where any Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture
or of any Security or coupon other than a provision in the Securities of any series



12









 






which specifically states that such provision shall apply in lieu of this Section), payment of
principal, premium, if any, or interest need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with the same force and
effect as if made on such date; provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be.



ARTICLE 2




SECURITY FORMS




     Section 2.1. Forms Generally. The Securities of each series and the coupons, if any,
to be attached thereto shall be in substantially such form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the officers executing such
Securities and coupons, if any, as evidenced by their execution of the Securities and coupons, if
any. Unless otherwise provided as contemplated in Section 3.1, Securities will be issued only in
registered form without coupons or in the form of one or more global securities. If temporary
Securities of any series are issued as permitted by Section 3.4, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities and coupons, if any,
of any series are established by, or by action taken pursuant to, a Board Resolution, a copy of the
Board Resolution together with an appropriate record (which may be in the form of an Officers’
Certificate) of any such action taken pursuant thereto, including a copy of the approved form of
Securities or coupons, if any, shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated
by Section 3.3 for the authentication and delivery of such Securities.



          Unless otherwise specified as contemplated by Section 3.1, Bearer Securities shall have
interest coupons attached.




          The definitive Securities and coupons, if any, 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 Securities and coupons, if any, as evidenced by their execution of such Securities
and coupons, if any.




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



          This is one of the Securities of the series described in the within-mentioned Indenture.




	 	 	 	 	 
	 

	 	Dated:
	 	 
	 
	 	 	 	 
	 	 	[     ]
	 	 	as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory






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     Section 2.3. Securities in Global Form. If Securities of or within a series are
issuable in whole or in part in global form, any such Security may provide that it shall represent
the aggregate or specified amount of Outstanding Securities from time to time endorsed thereon and
may also provide that the aggregate amount of Outstanding Securities represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby, shall be made in such manner and by such Person or
Persons as shall be specified therein or pursuant to Section 3.1 or in the Company Order to be
delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of Section 3.3
and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons specified therein or
pursuant to Section 3.1 or in the applicable Company Order. Any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form shall be in writing
but need not comply with Section 1.2 hereof and need not be accompanied by an Opinion of Counsel.



          The provisions of the last paragraph of Section 3.3 shall apply to any Security in global form
if such Security was never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not comply with Section
1.2 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 3.3.




          Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise specified as
contemplated by Section 3.1, payment of principal of, premium, if any, and interest on any Security
in permanent global form shall be made to the Person or Persons specified therein.




     Section 2.4. Form of Legend for Securities in Global Form. Any Security in global
form authenticated and delivered hereunder shall bear a legend in substantially the following form
and such other legends as may be approved by the officers executing such Security, as evidenced by
their execution thereof:



          This Security is in global form within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depository or a nominee of a Depository. Unless and until it is
exchanged in whole or in part for Securities in certificated form, this Security may not be
transferred except as a whole by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor Depository.




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ARTICLE 3




THE SECURITIES




     Section 3.1. Amount Unlimited; Issuable in Series.



          (a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited. The Securities may be issued from time to time in one or more
series.




          (b) The following matters shall be established with respect to each series of Securities
issued hereunder (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and
(subject to Section 3.3) set forth, or determined in the manner provided, in an Officers’
Certificate or (iii) in one or more indentures supplemental hereto:





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




          (2) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (which limit shall not pertain to
Securities authenticated and delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6, or
10.7 or upon the Company’s repurchase of any Securities in part at the option of the Holders
thereof);




          (3) the date or dates on which the principal of and premium, if any, on the Securities
of the series is payable or the method of determination thereof;




          (4) the rate or rates (which may be fixed, variable or zero) at which the Securities of
the series shall bear interest, if any, or the method of calculating such rate or rates of
interest;




          (5) the date or dates from which interest, if any, shall accrue or the method by which
such date or dates shall be determined;




          (6) the Interest Payment Dates on which any such interest, if any, shall be payable
and, with respect to Registered Securities, the Regular Record Date, if any, for the
interest payable on any Registered Security on any Interest Payment Date;




          (7) each Place of Payment for the Securities of the series;




          (8) the period or periods within which, the price or prices at which, the currency (if
other than Dollars) in which, and the other terms and conditions upon which, Securities of
the series may be redeemed, in whole or in part, at the option of the Company and, if other
than as provided in Section 10.3, the manner in which the particular Securities of such
series (if less than all Securities of such series are to be redeemed) are to be selected
for redemption;



15









 






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




          (10) if other than denominations of $1,000 and any integral multiple thereof, if
Registered Securities, and if other than the denomination of $5,000, if Bearer Securities,
the denominations in which Securities of the series shall be issuable;




          (11) if other than Dollars, the currency for which the Securities of the series may be
purchased or in which the Securities of the series shall be denominated and/or the currency
in which the principal of, premium, if any, and interest, if any, on the Securities of the
series shall be payable and the particular provisions applicable thereto in accordance with,
in addition to, or in lieu of the provisions of this Indenture;




          (12) if the amount of payments of principal of, or premium, if any, or interest, if
any, on the Securities of the series shall be determined with reference to an index, formula
or other method (which index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than that in which the
Securities of the series are denominated or designated to be payable), the index, formula or
other method by which such amount shall be determined;




          (13) if the amount of payments of principal, premium, if any, or interest, if any, on
the Securities of the series shall be determined with reference to an index, formula or
other method based on the prices of securities or commodities, with reference to changes in
the prices of securities or commodities or otherwise by application of a formula, the index,
formula or other method by which such amount shall be determined;




          (14) if other than the entire principal amount thereof, the portion of the principal
amount of such Securities of the series which shall be payable upon declaration of
acceleration thereof pursuant to Section 5.2 or the method by which such portion shall be
determined;




          (15) if other than as provided in Section 3.7, the Person to whom any interest on any
Registered Security of the series shall be payable and the manner in which, or the Person to
whom, any interest on any Bearer Securities of the series shall be payable;




          (16) provisions, if any, granting special rights to the Holders of Securities of the
series upon the occurrence of such events as may be specified;




          (17) any addition to or modification or deletion of any Events of Default or any
covenants of the Company pertaining to the Securities of the series;



16









 






          (18) under what circumstances, if any, the Company will pay Additional Amounts on the
Securities of that series held by a Person who is not a U.S. Person in respect of taxes,
assessments or similar governmental charges withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);




          (19) whether Securities of the series shall be issuable as Registered Securities or
Bearer Securities (with or without interest coupons), or both, and any restrictions
applicable to the offering, sale or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer Securities of a series may be exchanged
for Registered Securities of the same series and vice versa;




          (20) the date as of which any Bearer Securities of the series and any temporary global
Security representing Outstanding Securities of the series shall be dated if other than the
date of original issuance of the first Security of the series to be issued;




          (21) the forms of the Securities and coupons, if any, of the series;




          (22) if either or both of Section 4.4 relating to defeasance or Section 4.5 relating to
covenant defeasance shall not be applicable to the Securities of such series, or, if such
defeasance or covenant defeasance shall be applicable to the Securities of such series, any
covenants in addition to those specified in Section 4.5 relating to the Securities of such
series which shall be subject to covenant defeasance and any deletions from, or
modifications or additions to, the provisions of Article 4 in respect of the Securities of
such series or such other means of defeasance or covenant defeasance as may be specified for
the Securities of such series;




          (23) if other than the Trustee, the identity of the Registrar and any Paying Agent;




          (24) if the Securities of the series shall be issued in whole or in part in global
form, (i) the Depository for such global Securities, (ii) whether beneficial owners of
interests in any Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any authorized form and
denomination, and (iii) if other than as provided in Section 3.5, the circumstances under
which any such exchange may occur; and




          (25) any other terms of the Securities of such series and any deletions from or
modifications or additions to this Indenture in respect of such Securities.



          (c) All Securities of any one series and coupons, if any, appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case of Registered
Securities, as to denomination and except as may otherwise be provided (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in the related Officers’ Certificate or (iii) in an indenture
supplemental hereto. All Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.




17









 





          (d) If any of the terms of the Securities of any series are established by action taken
pursuant to a Board Resolution, a copy of such Board Resolution shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery
of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action taken pursuant thereto in
connection with the issuance of any Securities of such series shall be delivered to the Trustee
prior to the authentication and delivery thereof.




     Section 3.2. Denominations. Unless otherwise provided as contemplated by Section 3.1,
any Registered Securities of a series shall be issuable in denominations of $1,000 and any integral
multiple thereof and any Bearer Securities of a series shall be issuable in denominations of
$5,000.



     Section 3.3. Execution, Authentication, Delivery and Dating. Securities shall be
executed on behalf of the Company by two Officers. The Company’s seal shall be reproduced on the
Securities. The signatures of any of these Officers on the Securities may be manual or facsimile.
The coupons, if any, of Bearer Securities shall bear the facsimile signature of two Officers.



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




          At any time and from time to time, the Company may deliver Securities, together with any
coupons appertaining thereto, of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that in the case of Securities offered in a Periodic Offering,
the Trustee shall authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents, promptly confirmed in
writing) acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered
to the Trustee prior to the time of the first authentication of Securities of such series.




          If the form or terms of the Securities of a series have been established by or pursuant to one
or more Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such Securities
and accepting the additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Sections 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel stating:





          (1) if the forms of such Securities and any coupons have been established by or
pursuant to a Board Resolution as permitted by Section 2.1, that such forms have been
established in conformity with the provisions of this Indenture;



18









 






          (2) if the terms of such Securities and any coupons have been established by or
pursuant to a Board Resolution as permitted by Section 3.1, that such terms have been, or in
the case of Securities of a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject in the case of Securities offered
in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and




          (3) that such Securities together with any coupons appertaining thereto, 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,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability relating to or affecting the enforcement of creditors’
rights and to general equity principles.


Notwithstanding that such form or terms have been so established, the Trustee shall have the right
to decline to authenticate such Securities if, in the written opinion of counsel to the Trustee
(which counsel may be an employee of the Trustee) reasonably acceptable to the Company, the issue
of such Securities pursuant to this Indenture will adversely affect the Trustee’s own rights,
duties or immunities under this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.




          Notwithstanding the provisions of Section 3.1 and of the two preceding paragraphs, if all of
the Securities of any series are not to be issued at one time, it shall not be necessary to deliver
the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with appropriate
modifications to cover such future issuances, are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.




          With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, the form and terms thereof and
the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and
the other documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable, in
connection with the first authentication of Securities of such series.




          If the Company shall establish pursuant to Section 3.1 that the Securities of a series are to
be issued in whole or in part in global form, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Securities of such series to
be represented by such Security or Securities in global form, (ii) shall be registered, if a
Registered Security, in the name of the Depository for such Security or Securities in global form
or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or
pursuant to such Depository’s instruction and (iv) shall bear the legend contemplated by Section
2.4.




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          Each Depository designated pursuant to Section 3.1 for a Registered Security in global form
must, at the time of its designation and at all times while it serves as Depository, be a clearing
agency registered under the Securities Exchange Act of 1934 or any successor thereto (if so
required by applicable law or regulation) and any other applicable statute or regulation. The
Trustee shall have no responsibility to determine if the Depository is so registered.




          Each Registered Security shall be dated the date of its authentication and each Bearer
Security shall be dated as of the date specified as contemplated by Section 3.1.




          No Security or coupon appertaining thereto shall be entitled to any benefits under this
Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of
one of the authorized signatories of the Trustee or an Authenticating Agent and no coupon shall be
valid until the Security to which it appertains has been so authenticated. Such signature upon any
Security shall be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered under this Indenture and is entitled to the benefits of this Indenture.
Except as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have been detached and
canceled.




          Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 3.9 together with a written statement (which
need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall
not be entitled to the benefits of this Indenture.




     Section 3.4. Temporary Securities. Pending the preparation of definitive Securities
of any series, the Company may execute and, upon Company Order, the Trustee shall authenticate and
deliver temporary Securities of such series which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor and
form, with or without coupons, of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their execution of such
Securities and coupons, if any. In the case of Securities of any series, such temporary Securities
may be in global form, representing all or a portion of the Outstanding Securities of such series.



          Except in the case of temporary Securities in global form, each of which shall be exchanged in
accordance with the provisions thereof, if temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared without unreasonable delay.
After preparation of definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company pursuant to Section 9.2 in a Place
of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive




20









 




Securities of the same series of authorized denominations and of like tenor; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further that no definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless the Trustee shall have received from the Person
entitled to receive the definitive Bearer Security a certificate substantially in the form approved
in or pursuant to the Board Resolutions relating thereto and such delivery shall occur only outside
the United States. Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities of such series
except as otherwise specified as contemplated by Section 3.1.




     Section 3.5. Registration, Transfer and Exchange. The Company shall cause to be kept
at the Corporate Trust Office of the Trustee or in any office or agency to be maintained by the
Company in accordance with Section 9.2 in a Place of Payment a register (the “Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of Registered Securities.
The Register shall be in written form or any other form capable of being converted into written
form within a reasonable time. The Trustee is hereby appointed “Registrar” for the purpose of
registering Registered Securities and transfers of Registered Securities as herein provided.



          Upon surrender for registration of transfer of any Registered Security of any series at the
office or agency maintained pursuant to Section 9.2 in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of the same series, of
any authorized denominations and of a like aggregate principal amount containing identical terms
and provisions.




          Bearer Securities or any coupons appertaining thereto shall be transferable by delivery.




          At the option of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of a like aggregate
principal amount containing identical terms and provisions, upon surrender of the Registered
Securities to be exchanged at such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
Unless otherwise specified as contemplated by Section 3.1, Bearer Securities may not be issued in
exchange for Registered Securities.




          Unless otherwise specified as contemplated by Section 3.1, at the option of the Holder, Bearer
Securities of such series may be exchanged for Registered Securities (if the Securities of such
series are issuable in registered form) or Bearer Securities (if Bearer Securities of such series
are issuable in more than one denomination and such exchanges are permitted by such series) of the
same series, of any authorized denominations and of like tenor and aggregate principal amount, upon
surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security
is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities




21









 




are accompanied by payment in funds acceptable to the Company and the Trustee in an amount
equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to them such security
or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to receive the amount
of such payment; provided, however, that, except as otherwise provided in Section 9.2, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in exchange for a
Registered Security of the same series after the close of business at such office or agency on (i)
any Regular Record Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such coupon is so surrendered with such Bearer Security, such
coupon shall be returned to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of such coupon, when due
in accordance with the provisions of this Indenture.




          Notwithstanding any other provision of this Section, unless and until it is exchanged in whole
or in part for Securities in definitive certificated form, a Security in global form representing
all or a portion of the Securities of a series may not be transferred except as a whole by the
Depository for such series to a nominee of such Depository or by a nominee of such Depository to
such Depository or another nominee of such Depository or by such Depository or any such nominee to
a successor Depository for such series or a nominee of such successor Depository.




          Unless otherwise specified pursuant to Section 3.1 with respect to the Securities of any
series, a Security in global form will be exchangeable for certificated Securities of the same
series in definitive form only if (i) the Depository for the Global Securities of such series
notifies the Company that it is unwilling or unable to continue as Depository for the global
Securities of such series or such Depository ceases to be a clearing agency registered as such
under the Securities Exchange Act of 1934, as amended, or any successor thereto if so required by
applicable law or regulation and, in either case, a successor Depository for such Securities shall
not have been appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, as the case may be, (ii) the Company, in its sole discretion,
determines that such Securities in global form shall be exchangeable for certificated Securities
and executes and delivers to the Trustee a Company Order to the effect that such global Securities
shall be so exchangeable, or (iii) there shall have occurred and be continuing an Event of Default
with respect to the Securities of such series, the Company’s election pursuant to Section
3.1(b)(24) shall no longer be effective with respect to the Securities of such series and the
Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor and terms, shall




22









 




authenticate and deliver, without charge, Securities of such series of like tenor and terms in
certificated form, in authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor and terms in global
form in exchange for such Security or Securities in global form. Upon any such exchange, owners of
beneficial interests in such Securities in global form will be entitled to physical delivery of
individual Securities in certificated form of like tenor and terms equal in principal amount to
such beneficial interests, and to have such Securities in certificated form registered in the names
of the beneficial owners.




          If specified by the Company pursuant to Section 3.1 with respect to a series of Securities,
the Depository for such series may surrender a Security in global form of such series in exchange
in whole or in part for Securities of such series in certificated form on such terms as are
acceptable to the Company and such Depository. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (i) to each Person specified by
such Depository a new certificated Security or Securities of the same series of like tenor and
terms, 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 Security in global form; and
(ii) to such Depository a new Security in global form of like tenor and terms in a denomination
equal to the difference, if any, between the principal amount of the surrendered Security in global
form and the aggregate principal amount of certificated Securities delivered to Holders thereof.




          Upon the exchange of a Security in global form for Securities in certificated form, such
Security in global form shall be canceled by the Trustee. Unless expressly provided with respect to
the Securities of any series that such Security may be exchanged for Bearer Securities, Securities
in certificated form issued in exchange for a Security in global form pursuant to this Section
shall be registered in such names and in such authorized denominations as the Depository for such
Security in global form, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in
whose names such Securities are so registered.




          Whenever any Securities are surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.




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




          Every Registered Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or
be accompanied by 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.




23









 





          No service charge shall be made for any registration of transfer or for any exchange of
Securities, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section 3.4, 8.6, or 10.7 or upon the Company’s
repurchase of any Securities in part at the option of the Holder thereof not involving any
transfer.




          The Company shall not be required (i) to issue, register the transfer of, or exchange any
Securities for a period beginning at the opening of business 15 days before any selection for
redemption of Securities of like tenor and of the series of which such Security is a part and
ending at the close of business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like tenor and of such series to be
redeemed; (ii) to register the transfer of or exchange any Registered Security so selected for
redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in
part; or (iii) to exchange any Bearer Security so selected for redemption, except that such a
Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided
that such Registered Security shall be simultaneously surrendered for redemption.




     Section 3.6. Replacement Securities. If a mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the Trustee, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to save each of them
harmless, the Company shall execute and the Trustee shall authenticate and deliver a replacement
Registered Security, if such surrendered Security was a Registered Security, or a replacement
Bearer Security with coupons corresponding to the coupons appertaining to the surrendered Security,
if such surrendered Security was a Bearer Security, of the same series, terms and date of maturity,
if the Trustee’s requirements are met.



          If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security or Security with a destroyed, lost or stolen
coupon and (ii) such security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and
the Trustee shall authenticate and deliver in lieu of any such destroyed, lost or stolen Security
or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a replacement Registered Security, if such
Holder’s claim appertains to a Registered Security, or a replacement Bearer Security with coupons
corresponding to the coupons appertaining to the destroyed, lost or stolen Bearer Security or the
Bearer Security to which such lost, destroyed or stolen coupon appertains, if such Holder’s claim
appertains to a Bearer Security, of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to the destroyed, lost or stolen Security.




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




24









 




of principal of and any premium or interest on Bearer Securities shall, except as otherwise
provided in Section 9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons appertaining thereto.




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




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




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




     Section 3.7. Payment of Interest; Interest Rights Preserved.



          (a) Unless otherwise provided as contemplated by Section 3.1, interest, if any, on any
Registered Security which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest at
the office or agency maintained for such purpose pursuant to Section 9.2; provided, however, that
at the option of the Company, interest on any series of Registered Securities that bear interest
may be paid (i) by check mailed to the address of the Persons entitled thereto as they shall appear
on the Register of Holders of Securities of such series or (ii) by transfer to an account
maintained by the Persons entitled thereto.




          Unless otherwise provided as contemplated by Section 3.1 and except as otherwise provided in
Section 9.2, (i) interest, if any, on Bearer Securities shall be paid only against presentation and
surrender of the coupons for such interest installments as are evidenced thereby as they mature and
(ii) original issue discount, if any, on Bearer Securities shall be paid only against presentation
and surrender of such Securities, in either case at the office of a Paying Agent located outside
the United States, unless the Company shall have otherwise instructed the Trustee in writing,
provided that any such instruction for payment in the United States does not cause any Bearer
Security to be treated as a “registration-required obligation” under United States laws and
regulations. The interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by a coupon attached thereto, only upon presentation and
surrender of such coupon and, as to other installments of interest, only upon presentation of such
Security for notation thereon of the payment of such interest.




25









 





          (b) Unless otherwise provided as contemplated by Section 3.1, any interest on Registered
Securities of any series which is payable, but is not punctually paid or duly provided for, on any
interest payment date (herein called “Defaulted Interest”) shall forthwith cease to be payable to
the Holders on the relevant Regular Record Date by virtue of their having been such Holders, and
such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
clause (1) or (2) below:





          (1) The Company may elect to make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall 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 (1) 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 prepaid, to each Holder of such Registered
Securities at his address as it appears in the 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 such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).




          (2) The Company may make payment of such Defaulted Interest to the Persons in whose
names such Registered Securities (or their respective Predecessor Securities) are registered
at the close of business on a specified date in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Registered Securities may be
listed, and upon such notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this clause (2), such manner
of payment shall be deemed practicable by the Trustee.



          (c) Subject to the foregoing provisions of this Section and Section 3.5, each Security
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.




     Section 3.8. Persons Deemed Owners. Prior to due presentment of any Registered
Security for registration of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is registered as the



26









 






owner of such Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.



          The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of
any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or
coupon for the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.




          None of the Company, the Trustee or any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall prevent the Company or
the Trustee, or any agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any Depository (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between such Depository and
owners of beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its nominee) as Holder of
such Security in global form.




     Section 3.9. Cancellation. The Company at any time may deliver Securities and coupons
to the Trustee for cancellation. The Registrar and any Paying Agent shall forward to the Trustee
any Securities and coupons surrendered to them for replacement, for registration of transfer, or
for exchange or payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment or cancellation and shall
dispose of such canceled Securities in its customary manner. The Company may not issue new
Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.



     Section 3.10. Computation of Interest. Except as otherwise specified as contemplated
by Section 3.1, interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.



     Section 3.11. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, in such case, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company shall promptly advise the Trustee of any
change in the CUSIP Numbers.



27









 





     Section 3.12. Currency of Payment in Respect of Securities. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1, payment of the principal of,
premium, if any, and interest, if any, on any Registered or Bearer Security of such series will be
made in Dollars.



ARTICLE 4




SATISFACTION, DISCHARGE AND DEFEASANCE




     Section 4.1. Termination of Company’s Obligations Under the Indenture. This Indenture
shall upon a Company Request cease to be of further effect with respect to Securities of any series
and any coupons appertaining thereto (except as specified below) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities and any coupons appertaining thereto when




          (1) either




          (A) all such Securities previously authenticated and delivered and all coupons
appertaining thereto (other than (i) such coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in Section 3.5, (ii) such
Securities and coupons which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, (iii) such coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant Redemption Date, surrender
of which has been waived as provided in Section 10.6 and (iv) such Securities and coupons
for whose payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 9.3) have been delivered to the Trustee for cancellation; or




          (B) all Securities of such series and, in the case of (i) or (ii) below, any coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, or (ii) will become due and payable at their Stated Maturity within
one year, or (iii) if redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the Company, and the
Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount in the currency
in which the Securities of such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not theretofore delivered to the
Trustee for cancellation, in respect of principal, premium, if any, and interest, to the
date of such deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;




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



28









 






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


Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of
any series, the obligation of the Company to the Trustee and any predecessor Trustee under Section
6.9, the obligations of the Company to any Authenticating Agent under Section 6.14 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section,
the obligations of the Company and the Trustee with respect to the Securities of such series under
Sections 3.4, 3.5, 3.6, 4.2, 9.2 and 9.3 and with respect to the payment of Additional Amounts, if
any, with respect to such Securities as contemplated by Section 3.1(b)(18) shall survive such
satisfaction and discharge.




     Section 4.2. Application of Trust Funds. Subject to the provisions of the last
paragraph of Section 9.3, all money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent (other than the
Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto as specifically provided herein, of the principal, premium, if any, and interest for whose
payment such money has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.



     Section 4.3. Applicability of Defeasance Provisions; Company’s Option to Effect Defeasance
or Covenant Defeasance. Unless pursuant to Section 3.1 either or both of (i) defeasance of the
Securities of or within a series under Section 4.4 or (ii) covenant defeasance of the Securities of
or within a series under Section 4.5 shall not be applicable with respect to the Securities of any
series, then the provisions of such Section or Sections, as the case may be, together with the
provisions of Sections 4.6 through 4.10 inclusive, with such modifications thereto as may be
specified pursuant to Section 3.1 with respect to such Securities, shall be applicable to such
Securities and any coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons appertaining thereto,
elect to have Section 4.4 or Section 4.5 (unless such Section 4.4 or Section 4.5, as the case may
be, shall not be applicable to the Securities of such series) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the conditions set forth below
in this Article. Unless otherwise specified pursuant to Section 3.1, the Company’s right, if any,
to effect defeasance pursuant to Section 4.4 or covenant defeasance pursuant to Section 4.5 may
only be exercised with respect to all of the Outstanding Securities of a series and any coupons
appertaining thereto.



     Section 4.4. Defeasance. Upon the Company’s exercise of the option specified in
Section 4.3 applicable to this Section with respect to the Securities of a series, the Company
shall be deemed to have been discharged from its obligations with respect to such Securities and
any coupons appertaining thereto (except as specified below) on the date the conditions set forth
in Section 4.6 are satisfied (hereinafter “defeasance”). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire indebtedness represented by
such Securities and any coupons appertaining thereto which shall thereafter be deemed to be



29









 




“Outstanding” only for the purposes of Section 4.7 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have satisfied all its other obligations under
such Securities and any coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company,
shall on Company Order execute proper instruments acknowledging the same), except the following
which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders
of such Securities and any coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such Section and in Section 4.7,
payments in respect of the principal of, premium, if any, and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due; (ii) the Company’s obligations
with respect to such Securities under Sections 3.4, 3.5, 3.6, 9.2 and 9.3 and with respect to the
payment of Additional Amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(18); (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article 4. Subject to compliance with this Article 4, the Company
may exercise its option under this Section notwithstanding the prior exercise of its option under
Section 4.5 with respect to such Securities and any coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated because of an Event of Default.




     Section 4.5. Covenant Defeasance. Upon the Company’s exercise of the option specified
in Section 4.3 applicable to this Section with respect to any Securities of a series, the Company
shall be released from its obligations under Sections 7.1, 9.4 (other than the Company’s obligation
to maintain its corporate existence), 9.8 and 9.10 and, if specified pursuant to
Section 3.1, its obligations under any other covenant, with respect to such Securities and any
coupons appertaining thereto on and after the date the conditions set forth in Section 4.6 are
satisfied (hereinafter, “covenant defeasance”), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 7.1, 9.4 (other than the Company’s obligation to maintain its corporate
existence), 9.8 and 9.10 and any such other covenant, but shall continue to be deemed
“Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to such Securities and any coupons appertaining thereto, the Company may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth
in any such Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default under Section 5.1(3)
or 5.1(7) or otherwise, as the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining thereto shall be unaffected thereby.



     Section 4.6. Conditions to Defeasance or Covenant Defeasance. The following shall be
the conditions to application of Section 4.4 or Section 4.5 to any Securities of or within a series
and any coupons appertaining thereto:



          (a) The Company shall have irrevocably deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.12 who shall agree




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in writing to comply with, and shall be entitled to the benefits of, the provisions of
Sections 4.3 through 4.10 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such Sections also a “Trustee”) as trust funds in trust for the purpose of
making the payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, with instructions to the Trustee as to the application thereof, (A)
money in an amount (in such currency in which such Securities and any coupons appertaining thereto
are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is
to be effected in compliance with Section 4.6(g) below, on the relevant Redemption Date, as the
case may be), or (B) if Securities of such series are not subject to repayment or repurchase at the
option of Holders, Government Obligations applicable to such Securities and any coupons
appertaining thereto (determined on the basis of the currency in which such Securities and coupons,
if any, are then specified as payable at Stated Maturity or the applicable Redemption Date, as the
case may be) which through the payment of interest and principal in respect thereof in accordance
with their terms will provide (without consideration of any reinvestment of such principal and
interest), not later than one day before the due date of any payment referred to in clause (x) or
(y) of this Section 4.6(a), money in an amount or (C) a combination thereof in an amount,
sufficient, in the opinion of any nationally-recognized firm of independent public accountants,
expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee to pay and discharge, (x) the principal of, and premium, if
any, and interest, if any, on such Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest or on the applicable Redemption
Date, as the case may be, and (y) any mandatory sinking fund payments applicable to such Securities
on the day on which such payments are due and payable in accordance with the terms of this
Indenture and such Securities and any coupons appertaining thereto.




          (b) Such defeasance or covenant defeasance shall not result in a breach or violation of, or
constitute a Default or Event of Default under, this Indenture or result in a breach or violation
of, or constitute a default under, any other material agreement or instrument to which the Company
is a party or by which it is bound.




          (c) In the case of an election under Section 4.4, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) 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 shall confirm that, the Holders of such Securities and any
coupons appertaining thereto will not recognize income, gain or loss for federal income tax
purposes as a result of such 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 defeasance
had not occurred.




          (d) In the case of an election under Section 4.5, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such Securities and any coupons
appertaining thereto 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




31









 




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.




          (e) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance under Section 4.4 or the
covenant defeasance under Section 4.5 (as the case may be) have been complied with.




          (f) No Event of Default or Default with respect to such Securities or any coupons appertaining
thereto shall have occurred and be continuing on the date of such deposit, or, insofar as Defaults
in Events of Default under Sections 5.1(5) and 5.1(6) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).




          (g) If the monies or Government Obligations or combination thereof, as the case may be,
deposited under Section 4.6(a) above are sufficient to pay the principal of, and premium, if any,
and interest, if any, on such Securities and coupons, if any, appertaining thereto provided such
Securities are redeemed on a particular Redemption Date, the Company shall have given the Trustee
irrevocable instructions to redeem such Securities on such date and to provide notice of such
redemption to Holders as provided in or pursuant to this Indenture.




          (h) Such defeasance or covenant defeasance shall be effected in compliance with any additional
or substitute terms, conditions or limitations which may be imposed on the Company in connection
therewith as contemplated by Section 3.1.




     Section 4.7. Deposited Money and Government Obligations to Be Held in Trust. Subject
to the provisions of the last paragraph of Section 9.3, all money and Government Obligations (or
other property as may be provided pursuant to Section 3.1) (including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.6 in respect of any Securities of any series and
any coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and any coupons appertaining thereto and this Indenture, to
the payment, either directly or through any Paying Agent (other than the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of principal, premium, if
any, and interest, if any, but such money need not be segregated from other funds except to the
extent required by law.



          Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a
deposit referred to in Section 4.6(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of
such Security to receive payment in a currency other than that in which the deposit pursuant to
Section 4.6(a) has been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the Foreign Currency in which the deposit pursuant to Section 4.6(a) has been made, the
indebtedness represented by such Security and any coupons appertaining thereto shall be deemed to
have been, and will be, fully discharged and satisfied through the payment of the principal of and
premium, if any, and interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case




32









 




of any such election) the monies or Government Obligations (or other property and any proceeds
therefrom) deposited in respect of such Security into the currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the case of payments made
pursuant to clause (a) above, the applicable market exchange rate for such Foreign Currency in
effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion
Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as
feasible) at the time of the Conversion Event.




     Section 4.8. Repayment to Company. Anything in this Article 4 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds therefrom) held by
it as provided in Section 4.6(a) with respect to the Securities of any series which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, of
such Securities in accordance with Section 4.6.



     Section 4.9. Indemnity for Government Obligations. The Company shall pay, and shall
indemnify the Trustee against, any tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to this Article or the principal and interest received on
such Government Obligations.



     Section 4.10. Reinstatement. If the Trustee or any Paying Agent is unable to apply
any monies or Government Obligations (or other property or any proceeds therefrom) deposited
pursuant to Section 4.6(a) in accordance with this Indenture or the Securities of the applicable
series by reason of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 4.6(a) until such time as the
Trustee or a Paying Agent is permitted to apply such monies or Government Obligations (or other
property or any proceeds therefrom) in accordance with this Indenture and the Securities of such
series; provided, however, that if the Company makes any payment of principal of, premium, if any,
or interest on any Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive such payment
from the cash and Government Obligations(or other property or any proceeds therefrom) held by the
Trustee or Paying Agent.



ARTICLE 5




DEFAULTS AND REMEDIES




     Section 5.1. Events of Default. “Event of Default”, wherever used herein with respect
to Securities of any series, means any of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless such event is specifically deleted or modified in



33









 




or pursuant to the supplemental indenture, Board Resolution or Officers’ Certificate
establishing the terms of such series pursuant to Section 3.1 of this Indenture:





          (1) default in the payment of any interest on any Security of that series or any coupon
appertaining thereto, or any Additional Amounts payable with respect to any Security of that
series, when the same becomes due and payable and continuance of such default for a period
of 30 days; or




          (2) default in the payment of any principal of or premium, if any, on any Security of
that series when the same becomes due and payable at its Maturity (whether at Stated
Maturity, upon redemption, repurchase at the option of the Holder or otherwise), or default
in the making of any mandatory sinking fund payment in respect of any Securities of that
series when and as due by the terms of the Securities of that series; or




          (3) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture or any Security of such series (other than a covenant or warranty for
which the consequences of breach or nonperformance are addressed elsewhere in this Section
5.1 or a covenant or warranty which has expressly been included in this Indenture, whether
or not by means of a supplemental indenture, solely for the benefit of Securities of a
series other than such series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of such series a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder; or




          (4) [intentionally omitted]; or




          (5) the Company pursuant to or within the meaning of any Bankruptcy Law (A) commences a
voluntary case or proceeding, (B) consents to the entry of an order for relief against it in
an involuntary case or proceeding or to the commencement of any bankruptcy or insolvency
case or proceeding against it, (C) consents to the appointment of a Custodian of it or for
all or substantially all of its property; or (D) makes a general assignment for the benefit
of its creditors; or




          (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (A) is for relief against the Company in an involuntary case, (B) appoints a
Custodian of the Company or for all or substantially all of its property, (C) orders the
winding up or liquidation of the Company , (D) adjudges the Company a bankrupt or insolvent
or (E) approves as properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect to the Company; and any such order or decree described in
this clause (6) remains unstayed and in effect for 60 days; or




          (7) any other Event of Default provided as contemplated by Section 3.1 with respect to
Securities of that series.



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          The term “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for
the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.




     Section 5.2. Acceleration; Rescission and Annulment. If an Event of Default with
respect to the Securities of any series at the time Outstanding occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of all of the Outstanding
Securities of such series, by written notice to the Company (and, if given by the Holders, to the
Trustee), may declare the principal of (or, if the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount as may be specified
in the terms of that series) and accrued interest, if any, on all the Securities of that series to
be due and payable and upon any such declaration such principal (or, in the case of Original Issue
Discount Securities or Indexed Securities, such specified amount) and interest, if any, shall be
immediately due and payable.



          At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of that series, by written notice to the Trustee, may rescind
and annul such declaration and its consequences if:





          (1) the Company has paid or deposited with the Trustee a sum of money sufficient to pay
(i) all overdue installments of interest on any Securities of such series and any coupons
appertaining thereto which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto, (ii) the principal of and any
premium on any Securities of such series which have become due otherwise than by such
declaration of acceleration and any Additional Amounts with respect thereto and, to the
extent permitted by applicable law, interest thereon at the rate or rates borne by or
provided for in such Securities, (iii) to the extent permitted by applicable law, interest
upon installments of interest, if any, which have become due otherwise than by such
declaration of acceleration and any Additional Amounts with respect thereto at the rate or
rates borne by or provided for in such Securities, and (iv) all sums paid or advanced by the
Trustee hereunder and the compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section 6.9; and




          (2) all Events of Default with respect to Securities of such series, other than the
non-payment of the principal of, and interest on, and any Additional Amounts with respect
to, Securities of such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 5.7.


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




     Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee. The
Company covenants that if



35









 






          (1) default is made in the payment of any interest on any Security or coupon, if any,
or any Additional Amounts with respect to any Security when the same becomes due and payable
and such default continues for a period of 30 days; or




          (2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,


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




          If the Company fails to pay the money it is required to pay the Trustee pursuant to the
preceding paragraph forthwith upon the demand of the Trustee, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the collection of the money so
due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Securities and any coupons appertaining
thereto and collect the monies adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such Securities and any coupons
appertaining thereto, wherever situated.




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




     Section 5.4. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any overdue principal, premium, interest or Additional
Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise,



          (a) to file and prove a claim for the whole amount, or such lesser amount as may be provided
for in the Securities of such series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of such Securities and any coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable




36









 




in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of
the Holders of Securities or any coupons allowed in such judicial proceeding, and




          (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same; and any Custodian in any such judicial proceeding is hereby
authorized by each Holder of Securities or any coupons to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly to the Holders of
Securities or any coupons, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any
other amounts due the Trustee under Section 6.9.




          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder of a Security or any coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any coupon in any such proceeding.




     Section 5.5. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or any of the Securities or coupons may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or
judgment, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and
every Holder of a Security or coupon in respect of which such judgment has been recovered.



     Section 5.6. Delay or Omission Not Waiver. No delay or omission by the Trustee or any
Holder of any Securities to exercise any right or remedy accruing upon an Event of Default shall,
to the extent permitted by applicable law, impair any such right or remedy or constitute a waiver
of or acquiescence in any such Event of Default. Every right and remedy given by this Article 5 or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Securities or coupons, as the case may be.



     Section 5.7. Waiver of Past Defaults. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series by written notice to the Trustee may
waive on behalf of the Holders of all Securities of such series any past Default or Event of
Default with respect to that series and its consequences except (i) a Default or Event of Default
in the payment of the principal of, or premium, if any, or interest on, or Additional Amounts, if
any, with respect to, any Security of such series or any coupon appertaining thereto or (ii) in
respect of a covenant or provision hereof which pursuant to Section 8.2 cannot be amended or
modified without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture.



37









 





     Section 5.8. Control by Majority. The Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee or exercising any
trust or power conferred on it with respect to Securities of that series; provided, however, that
(i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture, (ii)
the Trustee may refuse to follow any direction that is unduly prejudicial to the rights of the
Holders of Securities of such series not consenting or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the Trustee in personal liability and (iii) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such
direction.



     Section 5.9. Limitation on Suits by Holders. No Holder of any Security of any series
or any coupons appertaining thereto shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:




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




          (2) the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series have made a written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;




          (3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense to be, or which may be, incurred by the
Trustee in pursuing the remedy;




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




          (5) during such 60 day period, the Holders of a majority in aggregate principal amount
of the Outstanding Securities of such series have not given to the Trustee a direction
inconsistent with such written request.



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




     Section 5.10. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the Holder of any Security or coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of, and premium, if any, and,
subject to Sections 3.5 and 3.7, interest on, and Additional Amounts, if any, with respect to, such
Security and such coupon on the respective due dates expressed in such Security or coupon (or, in
case of redemption, on the Redemption Date or, in the case of repurchase by the Company at the
option of such Holder, on any date such repurchase is due to be made), and to institute suit



38









 






for the enforcement of any such payment, and such right shall not be impaired or affected
without the consent of such Holder.



     Section 5.11. Application of Money Collected. If the Trustee collects any money
pursuant to this Article, it shall pay out the money in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:



          FIRST: to the Trustee for amounts due under Section 6.9;




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




          THIRD: to the Company.




          The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 5.11. At least 15 days before such record date, the Trustee shall mail to each holder and
the Company a notice that states the record date, the payment date and the amount to be paid.




     Section 5.12. Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.



     Section 5.13. Rights and Remedies Cumulative. To the extent permitted by applicable
law and except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.



     Section 5.14. Waiver of Stay or Extension Laws. The Company covenants that (to the
extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this
indenture; and the Company expressly waives (to the extent that it may



39









 






lawfully do so) all benefit or advantage of any such law and covenants (to the extent it may
lawfully do so) that it will not hinder, delay or impede the execution of any power herein granted
to the trustee, but will suffer and permit the execution of every such power as though no such law
had been enacted.



     Section 5.15. Undertaking for Costs. All parties to this indenture agree, and each
holder of any 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 any undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees
and expenses, against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions of this Section
5.15 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 10% in principal amount of outstanding
Securities of any 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, if any, on or Additional Amounts, if
any, with respect to any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the redemption date, or, in the case of
repurchase by the Company at the option of the holder, on or after the date for repurchase).



ARTICLE 6




THE TRUSTEE




     Section 6.1. Certain Duties and Responsibilities of the Trustee.



          (a) Except during the continuance of an Event of Default, the Trustee’s duties and
responsibilities under this Indenture shall be governed by Section 315(a) of the Trust Indenture
Act and no implied duties shall be inferred against the Trustee.




          (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise the
rights and powers vested in it by this Indenture, and shall 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.




     Section 6.2. Rights of Trustee. Subject to the provisions of the Trust Indenture Act:



          (a) The Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Trustee need not investigate any fact or matter stated in the
document but the Trustee may, in its discretion, make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the expense of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry.




40









 





          (b) Any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order (other than delivery of any Security, together with any
coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section
3.3, which shall be sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.




          (c) Before the Trustee acts or refrains from acting, it may consult with counsel of its own
selection (who may be in-house counsel) or require an Officers’ Certificate. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on a Board Resolution,
the written advice of counsel, who may be an attorney for the Company, an Officers’ Certificate or
an Opinion of Counsel.




          (d) The Trustee may act through agents or attorneys and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.




          (e) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers.




          (f) The Trustee shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of its
rights or powers.




          (g) The permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as a duty unless so specified herein.




          (h) The Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith and without negligence in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of any 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.




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




          (j) The Trustee’s rights to immunities and protection from liability hereunder and its rights
to payment of its fees and expenses shall survive termination of this Agreement and its resignation
or removal.




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




41









 





     Section 6.3. Trustee May Hold Securities. The Trustee, any Paying Agent, any
Registrar or any other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, with which the Trustee shall comply, may otherwise deal with the Company and an
Affiliate or Subsidiary of the Company with the same rights it would have if it were not Trustee,
Paying Agent, Registrar or such other agent.



     Section 6.4. Money Held in Trust. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as otherwise agreed upon in
writing with the Company.



     Section 6.5. Trustee’s Disclaimer. The recitals contained herein and in the
Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no
representation as to the validity, adequacy or priority of this Indenture or the Securities or any
coupon. The Trustee shall not be accountable for the Company’s use of the proceeds from the
Securities or for monies paid over to the Company pursuant to the Indenture.



     Section 6.6. Notice of Defaults. If a Default occurs and is continuing with respect
to the Securities of any series and if it is actually known to a Responsible Officer of the
Trustee, the Trustee shall, within 90 days after it occurs, transmit by mail, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, notice of all Defaults known to
it unless such Default shall have been cured or waived; provided, however, that in the case of a
Default in payment on the Securities of any series, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that withholding such
notice is in the interests of Holders of Securities of that series; and provided, further, that in
the case of any Default of the character specified in Section 5.1(3) with respect to Securities of
such series, no such notice to Holders shall be given until at least 30 days after the occurrence
thereof.



          The Trustee shall not be deemed to have notice of a Default or an Event of Default unless (i)
the Trustee has received written notice thereof from the Company or any Holder or (ii) a
Responsible Officer of the Trustee shall have actual knowledge thereof as evidenced in writing.
Except as otherwise expressly provided herein, the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions, covenants or
agreements herein, or of any of the documents executed in connection with the Securities, or as to
the existence of a Default or an Event of Default thereunder.




     Section 6.7. Reports by Trustee to Holders. Within 60 days after each November 15 of
each year commencing with the first November 15 after the first issuance of Securities pursuant to
this Indenture, the Trustee shall transmit by mail to all Holders of Securities as provided in
Section 313(c) of the Trust Indenture Act a brief report dated as of such November 15 if required
by and in compliance with Section 313(a) of the Trust Indenture Act. The Trustee shall also comply
with Sections 313(b) and (d) of the Trust Indenture Act.



     Section 6.8. Securityholder Lists. The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of
Holders



42









 






of Securities of each series. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and as of such date as
the Trustee may reasonably require, containing all the information in the possession or control of
the Registrar, the Company or any of its Paying Agents other than the Trustee as to the names and
addresses of Holders of Securities of each such series. If there are Bearer Securities of any
series outstanding, even if the Trustee is the Registrar, the Company shall furnish to the Trustee
such a list containing such information with respect to Holders of such Bearer Securities only.
Holders of Securities may communicate pursuant to Section 312(b) of the Trust Indenture Act with
other Holders with respect to their rights under this Indenture or the Securities. The Company,
the Trustee and all other Persons shall have the protection of Section 312(c) of the Trust
Indenture Act.



     Section 6.9. Compensation and Indemnity.



          (a) The Company shall pay to the Trustee such compensation as the Company and the Trustee
shall from time to time agree in writing for all services rendered by it hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all out-of-pocket expenses incurred by it in
connection with the performance of its duties under this Indenture, except any such expense as
shall be determined to have been caused by its own negligence or willful misconduct. Such expenses
shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.




          (b) The Company shall fully indemnify the Trustee for, and hold it harmless against, any and
all loss or liability, damage, claim or expense including taxes (other than taxes based upon or
determined or measured by the income of the Trustee) incurred by it arising out of or in connection
with its acceptance or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.




          (c) The Company need not reimburse any expense or indemnify against any loss or liability
determined by a court of competent jurisdiction to have been caused by the Trustee through its own
negligence or willful misconduct.




          (d) To secure the payment obligations of the Company pursuant to this Section, the Trustee
shall have a lien prior to the Securities of any series on all money or property held or collected
by the Trustee, in its capacity as Trustee, except that held in trust to pay principal, premium, if
any, and interest on and Additional Amounts, if any, with respect to particular Securities.




43









 





          When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1(5) or Section 5.1(6), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy, insolvency or other similar
law.




          The provisions of this Section shall survive the termination of this Indenture and the
registration or removal of the Trustee. All indemnifications and releases from liability granted in
this Article 6 to the Trustee shall extend to its directors, officers, employees and agents and to
the Trustee and to each Paying Agent and Registrar. Whether or not expressly provided for herein,
every provision of this Indenture relating to the conduct or affecting the liability of the Trustee
shall be subject to the provisions of this Article 6.




     Section 6.10. Replacement of Trustee.



          (a) The resignation or removal of the Trustee and the appointment of a successor Trustee shall
become effective only upon the successor Trustee’s acceptance of appointment as provided in Section
6.11.




          (b) The Trustee may resign at any time with respect to the Securities of any series by giving
written notice thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.




          (c) The Holders of a majority in aggregate principal amount of the Outstanding Securities of
any series may remove the Trustee with respect to that series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the Company’s consent.




          If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition at the expense of the Company any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.




          (d) If at any time:





          (1) the Trustee fails to comply with Section 310(b) of the Trust Indenture Act after
written request therefor by the Company or by any Holder who has been a bona fide Holder of
a Security for at least six months;




          (2) the Trustee shall cease to be eligible under Section 310(a) of the Trust Indenture
Act and shall fail to resign after written request therefor by the Company or by any Holder
of a Security who has been a bona fide Holder of a Security for at least six months; or



44









 






          (3) the Trustee becomes incapable of acting, is adjudged a bankrupt or an insolvent or
a receiver or public officer takes charge of the Trustee or its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the
Company by or pursuant to a Board Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor Trustee or
Trustees.



          (e) if the Trustee resigns, is removed or becomes incapable of acting, or if a vacancy exists
in the office of Trustee for any reason, with respect to Securities of one or more series, the
Company, by or pursuant to Board Resolution, shall promptly appoint a successor Trustee with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.




     Section 6.11. Acceptance of Appointment by Successor.



          (a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor Trustee, without further
act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder.




          (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and such successor Trustee
shall execute and deliver an indenture supplemental hereto wherein such successor Trustee shall
accept such appointment and which (i) shall contain such provisions as




45









 




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




          (c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.




          (d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under the Trust Indenture Act.




          (e) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series in the manner provided for notices to the Holders of Securities in
Section 1.6. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust office.




     Section 6.12. Eligibility; Disqualification. There shall at all times be a Trustee
hereunder which shall be eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture
Act and shall have a combined capital and surplus of at least $50,000,000 (or, in the case of a
Trustee which is a subsidiary of a bank holding company, which Trustee shall have a combined
capital and surplus of at least $10,000,000 and whose ultimate parent bank holding company shall
have a combined capital and surplus of at least $50,000,000). If such corporation (or ultimate
parent bank holding company, as the case may be) publishes reports of condition at least annually,
pursuant to law or the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such corporation (or ultimate parent bank holding company, as the case may be) shall be
deemed to be its combined capital and surplus as set forth in its most recent report of



46









 






condition so published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner and with the effect
specified in this Article. Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as Trustee for the Securities of
any series.



     Section 6.13. Merger, Conversion, Consolidation or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.



     Section 6.14. Appointment of Authenticating Agent. The Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon
original issue, exchange, registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of
which instrument shall be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to Section 3.1, shall
at all times be a bank or trust company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any state or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination by federal or state
authorities. If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall
be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.



          Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall




47









 





continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act on the part of the
Trustee or the Authenticating Agent.



          An Authenticating Agent for any series of Securities may at any time resign by giving written
notice of resignation to the Trustee for such series and to the Company. The Trustee for any series
of Securities may at any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the Trustee for such series
may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall
give notice of such appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve in the manner set forth in Section 1.6. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.




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




          If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication substantially in the
following form:




          This is one of the Securities of the series described in the within-mentioned Indenture.




	 	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 	 	Trustee
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	as Authenticating Agent
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory
	 

	 	Dated:	 	 
	 

	 	 	 	 






ARTICLE 7




CONSOLIDATION, MERGER OR SALE BY THE COMPANY




     Section 7.1. Consolidation, Merger or Sale of Assets Permitted. The Company shall not
consolidate or merge with or into, or sell, convey, assign, transfer, lease or otherwise dispose of
all or substantially all of its assets to, any Person unless:



48









 






          (1) the Person formed by or surviving any such consolidation or merger (if other than
the Company), or which acquires the Company’s assets, is a corporation organized and
existing under the laws of the United States of America, any state thereof or the District
of Columbia;




          (2) the Person formed by or surviving any such consolidation or merger (if other than
the Company), or which acquires the Company’s assets, expressly assumes by supplemental
indenture all the obligations of the Company under the Securities and this Indenture; and




          (3) immediately after giving effect to the transaction no Default or Event of Default
shall have occurred and be continuing.



          The Company shall deliver to the Trustee prior to the proposed transaction an Officers’
Certificate and an Opinion of Counsel each stating that the proposed transaction and such
supplemental indenture comply with this Indenture and that all conditions precedent to the
consummation of the transaction under this Indenture have been met.




     Section 7.2. Successor Person Substituted for Company. Upon any consolidation by the
Company with or merger of the Company into any other Person or any sale, conveyance, assignment,
transfer, lease or other disposition of all or substantially all of the assets of the Company to
any Person in accordance with Section 7.1, the successor Person formed by such consolidation or
into which the Company is merged or to which such sale, conveyance, assignment, transfer, lease or
other disposition is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Person shall be released from all obligations and covenants under this Indenture, the Securities
and the coupons.



ARTICLE 8




SUPPLEMENTAL INDENTURES




     Section 8.1. Supplemental Indentures Without Consent of Holders. Without the consent
of any Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:




          (1) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the Securities; or




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



49









 






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




          (4) to add to or change any of the provisions of this Indenture to such extent as shall
be necessary to facilitate the issuance of Bearer Securities (including, without limitation,
to provide that Bearer Securities may be registrable as to principal only) or to facilitate
the issuance of Securities in global form; or




          (5) to amend or supplement any provision contained herein or in any supplemental
indenture (which amendment or supplement may apply to one or more series of Securities or to
one or more Securities within any series as specified in such supplemental indenture),
provided that such amendment or supplement does not apply to any Outstanding Security issued
prior to the date of such supplemental indenture and entitled to the benefits of such
provision; or




          (6) to secure the Securities; or




          (7) to establish the form or terms of Securities of any series as permitted by Sections
2.1 and 3.1; or




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




          (9) if allowed without penalty under applicable laws and regulations, to permit payment
in the United States of principal, premium, if any, or interest, if any, on Bearer
Securities or coupons, if any; or




          (10) to cure any ambiguity or correct any mistake or to correct or supplement any
provision herein which may be inconsistent with any other provision herein or to make any
other provisions with respect to matters or questions arising under this Indenture, provided
such action shall not adversely affect the interests of any Holder of Securities of any
series; or




          (11) to make any change to comply with the Trust Indenture Act of 1939 or any amendment
thereof, or any requirement of the Securities and Exchange Commission in connection with the
qualification of this Indenture under the Trust Indenture Act of 1939 or any amendment
thereof.



     Section 8.2. Supplemental Indentures With Consent of Holders. With the written
consent of the Holders of a majority of the aggregate principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustee, the Company (when authorized by or pursuant to a Board Resolution)
and the Trustee may enter into an indenture or indentures supplemental hereto to add any provisions
to or to change or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the Holders of such Securities;



50









 






provided, however, that without the consent of the Holder of each Outstanding Security
affected thereby, an amendment under this Section may not:




          (1) change the Stated Maturity of the principal of or premium, if any, on or of any
installment of principal of or premium, if any, or interest, if any, on, or Additional
Amounts, if any, with respect to, any Security, or reduce the principal amount of, or any
installment of principal of, or premium, if any, or interest, if any, on, or any Additional
Amounts payable with respect to, any Security or the rate of interest on any Security, or
reduce the amount of premium, if any, payable upon redemption of any Security or the
repurchase by the Company of any Security at the option of the Holder thereof, or change the
manner in which the amount of any principal thereof or premium, if any, or interest thereon
or Additional Amounts, if any, with respect thereto is determined, or reduce the amount of
the principal of any Original Issue Discount Security or Indexed Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the currency in which any Securities or any premium or the interest thereon
or Additional Amounts, if any, with respect thereto, is payable, or change the index,
securities or commodities with reference to which or the formula by which the amount of
principal or any premium or the interest thereon is determined, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of
repurchase by the Company at the option of the Holder, on or after the date for repurchase);




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




          (3) change any obligation of the Company to maintain an office or agency in the places
and for the purposes specified in Section 9.2; or




          (4) make any change in Section 5.7 or this 8.2 except to increase any percentage or to
provide that certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holders of each Outstanding Security affected thereby.



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




          It is not necessary under this Section 8.2 for the Holders to consent to the particular form
of any proposed supplemental indenture, but it is sufficient if they consent to the substance
thereof.




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     Section 8.3. Compliance with Trust Indenture Act. Every amendment to this Indenture
or the Securities of one or more series shall be set forth in a supplemental indenture that
complies with the Trust Indenture Act as then in effect.



     Section 8.4. Execution of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.



     Section 8.5. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupon appertaining thereto shall be bound thereby.



     Section 8.6. Reference in Securities to Supplemental Indentures. Securities,
including any coupons, of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities including any coupons of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities including any coupons of such series.



ARTICLE 9




COVENANTS




     Section 9.1. Payment of Principal, Premium, if any, and Interest. The Company
covenants and agrees for the benefit of the Holders of each series of Securities that it will duly
and punctually pay the principal of, and premium, if any, and interest on, and Additional Amounts,
if any, with respect to, the Securities of that series in accordance with the terms of the
Securities of such series, any coupons appertaining thereto and this Indenture. An installment of
principal, premium, if any, interest or Additional Amounts, if any, shall be considered paid on the
date it is due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.



     Section 9.2. Maintenance of Office or Agency. If Securities of a series are issued as
Registered Securities, the Company will maintain in each Place of Payment for such series of
Securities an office or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, (i) subject to any laws or regulations applicable thereto,



52









 






an office or agency in a Place of Payment for that series which is located outside the United
States where Securities of that series and related coupons may be presented and surrendered for
payment; provided, however, that if the Securities of that series are listed on any stock exchange
located outside the United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in any other required city located
outside the United States, as the case may be, so long as the Securities of that series are listed
on such exchange, and (ii) subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for that series which is located outside the United States, where
Securities of that series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that 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 any such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.



          Unless otherwise specified as contemplated by Section 3.1, no payment of principal, premium or
interest on Bearer Securities shall be made at any office or agency of the Company in the United
States, by check mailed to any address in the United States, by transfer to an account located in
the United States or upon presentation or surrender in the United States of a Bearer Security or
coupon for payment, even if the payment would be credited to an account located outside the United
States; provided, however, that, if the Securities of a series are denominated and payable in
Dollars, payment of principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company’s Paying Agent in the Borough of Manhattan, The City of New York,
if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.




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




          Unless otherwise provided in or pursuant to this Indenture, the Company hereby designates the
Borough of Manhattan, The City of New York, as the Place of Payment for each series of Securities
and initially appoints the Trustee, at its offices which on the date of this Indenture are located
at [          ], New York, New York [     ], as the
Company’s agency in the Borough of Manhattan, The City of New York for the foregoing purposes and
as Registrar and Paying Agent. The Company may subsequently appoint a different office or agency in
the Borough of Manhattan, The City of New York and a different Registrar and Paying Agent for the
Securities of any series.




53









 





     Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money. If
the Company shall at any time act as its own Paying Agent with respect to any series of Securities,
it will, on or before each due date of the principal of, or premium, if any, or interest on, or
Additional Amounts, if any, with respect to, any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium, if any, or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the Trustee in writing
of its action or failure so to act.



          The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:





          (1) hold all sums held by it for the payment of the principal of, premium, if any, or
interest on or Additional Amounts, if any, with respect to the Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;




          (2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment of principal, premium, if any,
or interest on the Securities; and




          (3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



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




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




54









 




days from the date of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company.




     Section 9.4. Corporate Existence. Except as provided in Article 7, the Company will
at all times do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and its rights and franchises; provided that nothing in this Section
9.4 shall prevent the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company, such abandonment or termination is in the best interests of the Company
and not prejudicial in any material respect to the Holders of the Securities.



     Section 9.5. [Intentionally omitted]



     Section 9.6. Reports by the Company. The Company covenants:



          (a) To file with the Trustee, within 30 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the information, document and other
reports (or copies of such portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company is required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if
the Company is not required to file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and regulations;




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




          (c) To transmit to all Holders of Securities, within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 9.6, as may be required by the rules and
regulations prescribed from time to time by the Commission.




          Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).




     Section 9.7. Annual Review Certificate. The Company covenants and agrees to deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company, a certificate
from the principal executive officer, principal financial officer or principal accounting officer
as



55









 






to his or her knowledge of the Company’s compliance with all conditions and covenants under
this Indenture. For purposes of this Section 9.7, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this Indenture.



     Section 9.8. Limitation on Liens.



          (a) The Company will not, and will not permit any Subsidiary to, incur, assume or guarantee
any Debt secured by a Lien on any shares of capital stock of any Restricted Subsidiary (“Secured
Debt”) (whether such capital stock is owned or outstanding at the date of this Indenture or
thereafter acquired or issued, as the case may be) if, immediately after giving effect thereto, the
aggregate principal amount of all Secured Debt (other than Excluded Debt) would exceed 15% of the
Company’s Consolidated Tangible Assets, unless the Company provides, concurrently with or prior to
the incurrence, assumption or guarantee of such Secured Debt, that the Securities shall be secured
equally and ratably with (or, at the option of the Company, prior to) such Secured Debt for so long
as such Secured Debt is so secured.




          (b) The provisions set forth in Section 9.8(a) shall not apply to Debt secured by the
following Liens (“Excluded Debt”): (i) Liens existing as of the date of this Indenture; (ii) Liens
securing all or any portion of any Debt incurred (x) pursuant to the Credit Agreement, dated as of
October 17, 2005, by and among the Company, as Borrower, Bank of America, N.A., as Administrative
Agent, and various financial institutions and other persons from time to time parties thereto, as
Lenders, as amended, supplemented or modified from time to time (the “Credit Agreement”) or (y)
pursuant to any Debt instrument or agreement (“Refinancing
Debt”) that in whole or in part refinances, refunds, repays,
renews, replaces or extends the Credit Agreement or any Refinancing Debt; provided that the
aggregate principal amount of Debt that shall constitute Excluded Debt under this Section
9.8(b)(ii) shall not exceed $400 million; (iii) Liens securing Debt owing by any Subsidiary to the
Company or to any other Subsidiary; (iv) Liens on any shares of capital stock existing at the time
of the direct or indirect acquisition thereof by the Company or any Subsidiary; and (v) Liens for
the sole purpose of refinancing, refunding, repaying, renewing, replacing or extending in whole or
in part any Debt secured by Liens referred to in the foregoing clauses (i), (iii) or (iv),
or in this clause (v); provided, however, that the principal amount of
the Debt excluded pursuant to this clause (v) shall not exceed the principal amount of Debt so
secured at the time of such refinancing, refunding, repayment, renewal, replacement or extension.




          (c) Secured Debt permitted under this Section 9.8 need not be permitted solely by reference to
one provision permitting such Debt but may be permitted in part by one provision and in part by one
or more other provisions (including without limitation in part under Section 9.8(a) and in part
under one or more of the provisions of Section 9.8(b)). In the event that Debt or any portion
thereof meets the criteria of more than one such provision, the Company shall classify such Debt in
its sole discretion.




     Section 9.9. [Intentionally omitted].



     Section 9.10. Taxes. The Company shall, and shall cause each of its Subsidiaries to,
pay or discharge or cause to be paid or discharged prior to delinquency all taxes, assessments and
governmental levies the non-payment of which would materially adversely affect the business,



56









 






prospects, earnings, properties, assets or condition, financial or otherwise, of the Company
and its Subsidiaries taken as a whole except those taxes, assessments and governmental levies whose
amount, applicability or validity is being contested in good faith and by appropriate proceedings.



     Section 9.11. Additional Amounts. If any Securities of a series provide for the
payment of Additional Amounts pursuant to Section 3.1(b)(18), the Company agrees to pay to the
Holder of each such Security or any coupon appertaining thereto Additional Amounts as provided in
or pursuant to this Indenture or such Securities. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or any coupon appertaining thereto, such mention shall be deemed to include
mention of the payment of any Additional Amounts provided by the terms of such series established
hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made.



          Except as otherwise provided in or pursuant to this Indenture or the Securities of any series,
if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior
to the first Interest Payment Date with respect to such series of Securities (or if the Securities
of such series shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of principal or interest if
there has been any change with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company shall furnish to the Trustee and the principal Paying Agent or Paying
Agents, if other than the Trustee, an Officers’ Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and premium, if any, or interest on the
Securities of such series shall be made to Holders of Securities of such series or the coupons
appertaining thereto who are United States Aliens without withholding for or on account of any tax,
assessment or similar governmental charge described in the terms of the Securities of such series.
If any such withholding shall be required, then such Officers’ Certificate shall specify by country
the amount, if any, required to be withheld on such payments to such Holders of Securities or
coupons, and the Company agrees to pay to the Trustee or such Paying Agent on or prior to the date
such payment is due the Additional Amounts required by the terms of such Securities. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in reliance on any
Officers’ Certificate furnished pursuant to this Section.




     Section 9.12. Calculation of Original Issue Discount. The Company shall file with the
Trustee promptly at the end of each calendar year (i) written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year, and (ii) such other specific information relating to such
original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended
from time to time.



57









 





ARTICLE 10




REDEMPTION




     Section 10.1. Applicability of Article. Securities (including coupons, if any) of any
series which are redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.



     Section 10.2. Election to Redeem; Notice to Trustee. The election of the Company to
redeem any Securities, including coupons, if any, shall be evidenced by or pursuant to a Board
Resolution. In the case of any redemption at the election of the Company of less than all the
Securities or coupons, if any, of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture or (ii) pursuant
to an election of the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with such restriction or condition.



     Section 10.3. Selection of Securities to Be Redeemed. Unless otherwise specified as
contemplated by Section 3.1, if less than all the Securities (including coupons, if any) of a
series with the same terms are to be redeemed, the Trustee, not more than 45 days prior to the
Redemption Date, shall select the Securities of the series to be redeemed in such manner as the
Trustee shall deem fair and appropriate. The Trustee shall make the selection from Securities of
the series that are Outstanding and that have not previously been called for redemption and may
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum authorized denomination for
Securities of that series. The Trustee shall promptly notify the Company in writing of the
Securities selected by the Trustee for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.



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




     Section 10.4. Notice of Redemption. Unless otherwise specified as contemplated by
Section 3.1, notice of redemption shall be given in the manner provided in Section 1.6 not less
than 30 days nor more than 60 days prior to the Redemption Date to the Holders of the Securities to
be redeemed.



58









 





     All notices of redemption shall state:




          (1) the Redemption Date;




          (2) the Redemption Price;




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




          (4) in case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining unredeemed;




          (5) the Place or Places of Payment where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price;




          (6) that Securities of the series called for redemption and all unmatured coupons, if
any, appertaining thereto must be surrendered to the Paying Agent to collect the Redemption
Price;




          (7) that, on the Redemption Date, the Redemption Price, together with (except as
otherwise set forth in Section 10.6 or as may otherwise be specified with respect to such
Securities pursuant to Section 3.1) accrued and unpaid interest, if any, on and Additional
Amounts, if any, with respect to the Securities (or portions thereof) to be redeemed, will
become due and payable upon each such Security, or the portion thereof, to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after said date;




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




          (9) that, unless otherwise specified in such notice, Bearer Securities of any series,
if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to
the Redemption Date or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory to the Company, the
Trustee and any Paying Agent is furnished; and




          (10) the CUSIP number, if any, of the Securities.



          Notice of redemption of Securities to be redeemed shall be given by the Company or, at the
Company’s request, by the Trustee in the name and at the expense of the Company.




     Section 10.5. Deposit of Redemption Price. On or prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, which it may not do in the case of a sinking fund payment under Article



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11, segregate and hold in trust as provided in Section 9.3) an amount of money in the currency
in which the Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest Payment Date) interest
accrued to the Redemption Date on, all Securities or portions thereof which are to be redeemed on
that date.




          Unless any Security by its terms prohibits any sinking fund payment obligation from being
satisfied by delivering and crediting Securities (including Securities redeemed otherwise than
through a sinking fund), the Company may deliver such Securities to the Trustee for crediting
against such payment obligation in accordance with the terms of such Securities and this Indenture.




     Section 10.6. Securities Payable on Redemption Date. Notice of redemption having been
given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (together with (except as otherwise set forth in
this Section 10.6 or as may otherwise be specified with respect to such Securities pursuant to
Section 3.1) accrued interest, if any, thereon and Additional Amounts, if any, with respect thereto
to the Redemption Date), and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest
and the coupons for any such interest appertaining to any Bearer Security so to be redeemed, except
to the extent provided below, shall be void. Except as provided in the next succeeding paragraph,
upon surrender of any such Security, including coupons, if any, for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption Price, together with
accrued interest and Additional Amounts, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1, installments of interest
on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.



          If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant
coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided pursuant to Section 9.2)
and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and
surrender of those coupons.




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




     Section 10.7. Securities Redeemed in Part. Upon surrender of a Security that is
redeemed in part at any Place of Payment therefor (with, if the Company or the Trustee so required,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the Holder of that
Security, without service charge, a new Security or Securities of the same series, having the same
form, terms and Stated Maturity, in any authorized denomination equal in aggregate principal amount
to the unredeemed portion of the principal amount of the Security surrendered.



ARTICLE 11




SINKING FUNDS




     Section 11.1. Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for Securities of such series.



          The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series 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 Securities of any series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.




     Section 11.2. Satisfaction of Sinking Fund Payments with Securities. The Company (i)
may deliver Outstanding Securities of a series (other than any previously called for redemption)
together, in the case of Bearer Securities of such series, with all unmatured coupons appertaining
thereto and (ii) may apply as a credit Securities of a series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as provided for by the terms of
such series; provided that such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.



     Section 11.3. Redemption of Securities for Sinking Fund. Not less than 60 days prior
to each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering



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and crediting Securities of that series pursuant to Section 11.2 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 10.3 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in Section 10.4. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 10.6 and 10.7.



          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 instrument.




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




	 	 	 	 	 
	 	FIDELITY NATIONAL FINANCIAL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 
	Attest:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	By:

	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 
	 	[                                                            ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	 	 
	 




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