exv4w4






Exhibit 4.4




NXSTAGE MEDICAL, INC.




as Primary Obligor



and



[NAME OF TRUSTEE]



as Trustee



INDENTURE



Dated as of _________ ___, 20__



Subordinated Debt Securities



 









 





TABLE OF CONTENTS




    	 	 	 	 	 	 	 

	ARTICLE I. DEFINITIONS AND OTHER
          PROVISIONS OF GENERAL APPLICATION	 	 	1	 
	
          SECTION 1.01 

        	 	DEFINITIONS 	 	 	1	 
	
          SECTION 1.02 

        	 	COMPLIANCE CERTIFICATES AND OPINIONS 	 	 	12	 
	
          SECTION 1.03 

        	 	FORM OF DOCUMENTS DELIVERED TO TRUSTEE 	 	 	13	 
	
          SECTION 1.04 

        	 	ACTS OF HOLDERS 	 	 	13	 
	
          SECTION 1.05 

        	 	NOTICES, ETC., TO TRUSTEE AND COMPANY 	 	 	15	 
	
          SECTION 1.06 

        	 	NOTICE TO HOLDERS; WAIVER 	 	 	15	 
	
          SECTION 1.07 

        	 	EFFECT OF HEADINGS AND TABLE OF CONTENTS
        	 	 	16	 
	
          SECTION 1.08 

        	 	SUCCESSORS AND ASSIGNS 	 	 	16	 
	
          SECTION 1.09 

        	 	SEPARABILITY CLAUSE 	 	 	16	 
	
          SECTION 1.10 

        	 	BENEFITS OF INDENTURE 	 	 	16	 
	
          SECTION 1.11 

        	 	GOVERNING LAW 	 	 	17	 
	
          SECTION 1.12 

        	 	LEGAL HOLIDAYS 	 	 	17	 
	
          SECTION 1.13 

        	 	JUDGMENT CURRENCY 	 	 	17	 
	
          SECTION 1.14 

        	 	NO PERSONAL LIABILITY 	 	 	17	 
	ARTICLE II. SECURITIES FORMS	 	 	18	 
	
          SECTION 2.01 

        	 	FORMS OF SECURITIES 	 	 	18	 
	
          SECTION 2.02 

        	 	FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION
        	 	 	18	 
	
          SECTION 2.03 

        	 	SECURITIES ISSUABLE IN GLOBAL FORM 	 	 	19	 
	ARTICLE III. THE SECURITIES	 	 	19	 
	
          SECTION 3.01 

        	 	AMOUNT UNLIMITED; ISSUABLE IN SERIES 	 	 	19	 
	
          SECTION 3.02 

        	 	DENOMINATIONS 	 	 	23	 
	
          SECTION 3.03 

        	 	EXECUTION, AUTHENTICATION, DELIVERY AND
          DATING 	 	 	23	 
	
          SECTION 3.04 

        	 	TEMPORARY SECURITIES 	 	 	25	 
	
          SECTION 3.05 

        	 	REGISTRATION, REGISTRATION OF TRANSFER AND
          EXCHANGE 	 	 	27	 
	
          SECTION 3.06 

        	 	MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
        	 	 	30	 
	
          SECTION 3.07 

        	 	PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
        	 	 	31	 
	
          SECTION 3.08 

        	 	PERSONS DEEMED OWNERS 	 	 	33	 
	
          SECTION 3.09 

        	 	CANCELLATION 	 	 	34	 
	
          SECTION 3.10 

        	 	COMPUTATION OF INTEREST 	 	 	34	 
	ARTICLE IV. SATISFACTION AND
          DISCHARGE	 	 	34	 
	
          SECTION 4.01 

        	 	SATISFACTION AND DISCHARGE OF INDENTURE
        	 	 	34	 
	
          SECTION 4.02 

        	 	APPLICATION OF TRUST FUNDS 	 	 	35	 
	ARTICLE V. REMEDIES	 	 	36	 
	
          SECTION 5.01 

        	 	EVENTS OF DEFAULT 	 	 	36	 
	
          SECTION 5.02 

        	 	ACCELERATION OF MATURITY; RESCISSION AND
          ANNULMENT 	 	 	38	 
	
          SECTION 5.03 

        	 	COLLECTION OF INDEBTEDNESS AND SUITS FOR
          ENFORCEMENT BY TRUSTEE 	 	 	39	 
	
          SECTION 5.04 

        	 	TRUSTEE MAY FILE PROOFS OF CLAIM 	 	 	39	 
	
          SECTION 5.05 

        	 	TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
          OF SECURITIES OR COUPONS 	 	 	40	 
	
          SECTION 5.06 

        	 	APPLICATION OF MONEY COLLECTED 	 	 	40	 
	
          SECTION 5.07 

        	 	LIMITATION ON SUITS 	 	 	41	 
	
          SECTION 5.08 

        	 	UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
          PRINCIPAL, PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS 	 	 	41	 
	
          SECTION 5.09 

        	 	RESTORATION OF RIGHTS AND REMEDIES 	 	 	41	 
	
          SECTION 5.10 

        	 	RIGHTS AND REMEDIES CUMULATIVE 	 	 	42	 
	
          SECTION 5.11 

        	 	DELAY OR OMISSION NOT WAIVER 	 	 	42	 
	
          SECTION 5.12 

        	 	CONTROL BY HOLDERS OF SECURITIES 	 	 	42	 
	
          SECTION 5.13 

        	 	WAIVER OF PAST DEFAULTS 	 	 	42	 
	
          SECTION 5.14 

        	 	WAIVER OF USURY, STAY OR EXTENSION LAWS
        	 	 	43	 






i











 






	 	 	 	 	 	 	 

	SECTION 5.15

	 	UNDERTAKING FOR COSTS
	 	 	43	 
	ARTICLE VI. THE TRUSTEE	 	 	43	 
	SECTION 6.01

	 	NOTICE OF DEFAULTS
	 	 	43	 
	SECTION 6.02

	 	CERTAIN RIGHTS OF TRUSTEE
	 	 	44	 
	SECTION 6.03

	 	NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
	 	 	45	 
	SECTION 6.04

	 	MAY HOLD SECURITIES
	 	 	45	 
	SECTION 6.05

	 	MONEY HELD IN TRUST
	 	 	46	 
	SECTION 6.06

	 	COMPENSATION AND REIMBURSEMENT
	 	 	46	 
	SECTION 6.07

	 	ELIGIBILITY OF TRUSTEE; CONFLICTING INTERESTS
	 	 	46	 
	SECTION 6.08

	 	RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
	 	 	47	 
	SECTION 6.09

	 	ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
	 	 	48	 
	SECTION 6.10

	 	MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
	 	 	49	 
	SECTION 6.11

	 	APPOINTMENT OF AUTHENTICATING AGENT
	 	 	49	 
	ARTICLE VII. HOLDERS’ LISTS AND REPORTS	 	 	51	 
	SECTION 7.01

	 	DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS
	 	 	51	 
	SECTION 7.02

	 	REPORTS BY TRUSTEE
	 	 	51	 
	SECTION 7.03

	 	COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
	 	 	51	 
	ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	 	51	 
	SECTION 8.01

	 	COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
	 	 	51	 
	SECTION 8.02

	 	SUCCESSOR SUBSTITUTED
	 	 	52	 
	ARTICLE IX. SUPPLEMENTAL INDENTURES	 	 	52	 
	SECTION 9.01

	 	SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
	 	 	52	 
	SECTION 9.02

	 	SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
	 	 	53	 
	SECTION 9.03

	 	EXECUTION OF SUPPLEMENTAL INDENTURES
	 	 	54	 
	SECTION 9.04

	 	EFFECT OF SUPPLEMENTAL INDENTURES
	 	 	54	 
	SECTION 9.05

	 	CONFORMITY WITH TRUST INDENTURE ACT
	 	 	54	 
	SECTION 9.06

	 	REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
	 	 	54	 
	ARTICLE X. COVENANTS	 	 	54	 
	SECTION 10.01

	 	PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS
	 	 	54	 
	SECTION 10.02

	 	MAINTENANCE OF OFFICE OR AGENCY
	 	 	55	 
	SECTION 10.03

	 	MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
	 	 	56	 
	SECTION 10.04

	 	[RESERVED]
	 	 	57	 
	SECTION 10.05

	 	EXISTENCE
	 	 	57	 
	SECTION 10.06

	 	MAINTENANCE OF PROPERTIES
	 	 	58	 
	SECTION 10.07

	 	INSURANCE
	 	 	58	 
	SECTION 10.08

	 	PAYMENT OF TAXES AND OTHER CLAIMS
	 	 	58	 
	SECTION 10.09

	 	COMMISSION AND OTHER REPORTS TO THE TRUSTEE
	 	 	58	 
	SECTION 10.10

	 	STATEMENT AS TO COMPLIANCE
	 	 	59	 
	SECTION 10.11

	 	ADDITIONAL AMOUNTS
	 	 	59	 
	SECTION 10.12

	 	WAIVER OF CERTAIN COVENANTS
	 	 	60	 
	ARTICLE XI. REDEMPTION OF SECURITIES	 	 	60	 
	SECTION 11.01

	 	APPLICABILITY OF ARTICLE
	 	 	60	 
	SECTION 11.02

	 	ELECTION TO REDEEM; NOTICE TO TRUSTEE
	 	 	60	 
	SECTION 11.03

	 	SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
	 	 	61	 
	SECTION 11.04

	 	NOTICE OF REDEMPTION
	 	 	61	 
	SECTION 11.05

	 	DEPOSIT OF REDEMPTION PRICE
	 	 	62	 
	SECTION 11.06

	 	SECURITIES PAYABLE ON REDEMPTION DATE
	 	 	63	 
	SECTION 11.07

	 	SECURITIES REDEEMED IN PART
	 	 	63	 
	ARTICLE XII. SINKING FUNDS	 	 	64	 
	SECTION 12.01

	 	APPLICABILITY OF ARTICLE
	 	 	64	 






ii









 






	 	 	 	 	 	 	 

	SECTION 12.02

	 	SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
	 	 	64	 
	SECTION 12.03

	 	REDEMPTION OF SECURITIES FOR SINKING FUND
	 	 	64	 
	ARTICLE XIII. REPAYMENT AT THE OPTION OF HOLDERS	 	 	65	 
	SECTION 13.01

	 	APPLICABILITY OF ARTICLE
	 	 	65	 
	SECTION 13.02

	 	REPAYMENT OF SECURITIES
	 	 	65	 
	SECTION 13.03

	 	EXERCISE OF OPTION
	 	 	65	 
	SECTION 13.04

	 	WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE
	 	 	66	 
	SECTION 13.05

	 	SECURITIES REPAID IN PART
	 	 	67	 
	ARTICLE XIV. DEFEASANCE AND COVENANT DEFEASANCE	 	 	67	 
	SECTION 14.01

	 	APPLICABILITY OF ARTICLE; COMPANY’S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. 	 	 	67	 
	SECTION 14.02

	 	DEFEASANCE AND DISCHARGE
	 	 	67	 
	SECTION 14.03

	 	COVENANT DEFEASANCE
	 	 	68	 
	SECTION 14.04

	 	CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
	 	 	68	 
	SECTION 14.05

	 	DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS
	 	 	70	 
	ARTICLE XV. MEETINGS OF HOLDERS OF SECURITIES	 	 	71	 
	SECTION 15.01

	 	PURPOSES FOR WHICH MEETINGS MAY BE CALLED
	 	 	71	 
	SECTION 15.02

	 	CALL, NOTICE AND PLACE OF MEETINGS
	 	 	71	 
	SECTION 15.03

	 	PERSONS ENTITLED TO VOTE AT MEETINGS
	 	 	71	 
	SECTION 15.04

	 	QUORUM; ACTION
	 	 	71	 
	SECTION 15.05

	 	DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS
	 	 	73	 
	SECTION 15.06

	 	COUNTING VOTES AND RECORDING ACTION OF MEETINGS
	 	 	73	 
	ARTICLE XVI. GUARANTEE OF SECURITIES	 	 	74	 
	SECTION 16.01

	 	GUARANTEE
	 	 	74	 
	SECTION 16.02

	 	FUTURE GUARANTORS
	 	 	76	 
	SECTION 16.03

	 	DELIVERY OF GUARANTEE
	 	 	77	 
	ARTICLE XVII. SUBORDINATION	 	 	77	 
	SECTION 17.01

	 	AGREEMENT TO SUBORDINATION
	 	 	77	 
	SECTION 17.02

	 	PAYMENTS TO HOLDERS
	 	 	77	 
	SECTION 17.03

	 	SUBROGATION OF SECURITIES
	 	 	79	 
	SECTION 17.04

	 	AUTHORIZATION OF EFFECT SUBORDINATION
	 	 	80	 
	SECTION 17.05

	 	NOTICE TO TRUSTEE
	 	 	80	 
	SECTION 17.06

	 	TRUSTEE’S RELATION TO SENIOR INDEBTEDNESS
	 	 	81	 
	SECTION 17.07

	 	NO IMPAIRMENT OF SUBORDINATION
	 	 	82	 
	SECTION 17.08

	 	CERTAIN CONVERSIONS DEEMED PAYMENT
	 	 	82	 
	SECTION 17.09

	 	ARTICLE APPLICABLE TO PAYING AGENTS
	 	 	82	 
	SECTION 17.10

	 	SENIOR INDEBTEDNESS ENTITLED TO RELY
	 	 	82	 
	SECTION 17.11

	 	ANTI-LAYERING
	 	 	82	 






iii









 






RECONCILIATION AND TIE BETWEEN

TRUST INDENTURE ACT OF 1939 (THE “1939 ACT”) AND INDENTURE




	 	 	 
	1939 Act Section	 	Indenture Section
	 
	 	 
	Section 310(a)(1)
	 	607
	(a)(2)
	 	607
	(b)
	 	607, 608
	Section 312(c)
	 	701
	Section 313(a)
	 	702
	(c)
	 	702
	Section 314(a)
	 	703
	(a)(4)
	 	1010
	(c)(1)
	 	102
	(c)(2)
	 	102
	(e)
	 	102
	Section 315(b)
	 	601
	Section 316(a) (last sentence)
	 	101
	(“Outstanding”)
	 	 
	(a)(1)(A)
	 	502, 512
	(a)(1)(B)
	 	513
	(b)
	 	508
	Section 317(a)(1)
	 	503
	(a)(2)
	 	504
	Section 318(a)
	 	111
	(c)
	 	111






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



     Attention should also be directed to Section 318(c) of the 1939 Act, which provides that the
provisions of Sections 310 to and including 317 of the 1939 Act are a part of and govern every
qualified indenture, whether or not physically contained therein.




iv











 





INDENTURE




     INDENTURE, dated as of __________ ___, 20__, among NXSTAGE MEDICAL, INC., a Delaware
corporation, as primary obligor (hereinafter called the “Company”), having its principal office at
439 S. Union Street, 5th Floor, Lawrence, Massachusetts 01843, and [NAME OF TRUSTEE], a
__________ trust company, as trustee (hereinafter called the “Trustee”), having its Corporate Trust
Office at __________, [New York, New York], __________, and any Person becoming a Guarantor
hereunder.



RECITALS




     The Company deems it necessary to issue from time to time for its lawful purposes subordinated
debt securities (hereinafter called the “Securities”) evidencing its unsecured and subordinated
indebtedness, and has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of the Securities, unlimited as to principal amount, to bear
interest at the rates or formulas, to mature at such times and to have such other provisions as
shall be fixed as hereinafter provided.



     This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended,
that are deemed to be incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.



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



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE I.




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION



     SECTION 1.01 DEFINITIONS.



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



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



     (2) all other terms used herein which are defined in the TIA, either directly or by reference
therein, have the meanings assigned to them therein, and the terms “cash transaction” and
“self-liquidating paper”, as used in TIA Section 311, shall have the meanings assigned to them in
the rules of the Commission adopted under the TIA;



     (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,” when used with respect to any Holder, has the meaning specified in Section 1.04.



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



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



     “Authenticating Agent” means any authenticating agent appointed by the Trustee pursuant to
Section 6.11.



     “Authorized Newspaper” means a newspaper, printed in the English language or in an official
language of the country of publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place. Whenever successive
publications are required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.



     “Bankruptcy Law” has the meaning specified in Section 5.01.



     “Bearer Security” means any Security established pursuant to Section 2.01 which is payable to
bearer.



     “Board of Directors” means the board of directors of the Company or a Guarantor, as
applicable, or other body with analogous authority with respect to the Company or a Guarantor, the
executive committee of that board or body or any committee of that board or body duly authorized to
act hereunder.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or a Guarantor, as applicable, to have been duly adopted by the Board of
Directors thereof and to be in full force and effect on the date of such certification, 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 3.01, any day other than a Saturday, Sunday, legal
holiday or other day on which banking institutions in that Place of Payment or particular location
are authorized or required by law, regulation or executive order to close.



2









 





     “Capital Stock” means, with respect to any Person, any and all shares (including preferred
shares), interests, participations or other equity ownership interests (however designated, whether
voting or non-voting) in the Person and any rights (other than debt securities convertible into or
exchangeable for corporate Capital Stock), warrants or options to purchase any thereof.



     “Clearstream” means Clearstream Banking, societe anonyme, Luxembourg, or its successor.



     “Code” means the Internal Revenue Code of 1986 and any successor thereto, in each case as
amended from time to time, and the regulations thereunder.



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



     “Common Depositary” has the meaning specified in Section 3.04(b).



     “Common Shares” means, with respect to any Person, capital stock or shares of beneficial
interest issued by such Person other than Preferred Shares.



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



     “Company Request” and “Company Order” mean, respectively, a written request or order signed in
the name of the Company by its Chairman of the Board, the Chief Executive Officer, the President or
a Vice President (whether or not designated by a number or a word or words added before or after
the title “vice president”), and by its Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.



     “Conversion Event” means the cessation of use of (i) a Foreign Currency other than the Euro
both by the government of the country that issued such currency and for the settlement of
transactions by a central bank or other public institutions of or within the international banking
community, (ii) the Euro both within the member states of the European Union that have adopted the
single currency in accordance with the treaty establishing the European Community as amended by the
treaty of the European Union and for the settlement of transactions by public institutions of or
within the European Union or (iii) any currency for the purposes for which it was established.



     “Corporate Trust Office” means the principal corporate trust office of the Trustee at which,
at any particular time, its corporate trust business shall be principally administered, which
office at the date hereof (and for the purposes of the Place of Payment provisions of Section
10.02) is located at __________, [New York, New York] _________.



     “corporation” includes corporations, limited partnerships, limited liability companies, real
estate investment trusts, associations, companies and business trusts.



     “coupon” means any interest coupon appertaining to a Bearer Security.



     “currency” means any currency, currency unit or composite currency, including, without



3









 




limitation, the Euro, issued by the government of one or more countries or by any recognized
confederation or association of such governments.




     “Custodian” has the meaning specified in Section 5.01.



     “Defaulted Interest” has the meaning specified in Section 3.07.



     “Designated Senior Indebtedness” with respect to the Company and any Securities means the
Senior Indebtedness designated as “Designated Senior Indebtedness” in this Indenture with respect
to such Securities and any other Senior Indebtedness in which the instrument creating or evidencing
the Indebtedness, or any related agreements or documents to which the Company is a party, expressly
provides that such indebtedness is “Designated Senior Indebtedness” for purposes of this Indenture
(provided that the instrument, agreement or other document may place limitations and conditions on
the right of the Senior Indebtedness to exercise the rights of Designated Senior Indebtedness).



     “Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and private debts.



     “DTC” means The Depository Trust Company for so long as it shall be a clearing agency
registered under the Exchange Act, or such successor as the Company shall designate from time to
time in an Officer’s Certificate delivered to the Trustee.



     “Euroclear” means Morgan Guaranty Trust Company of New York, Brussels Office, or its successor
as operator of the Euroclear System.



     “Event of Default” has the meaning specified in Article Five.



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



     “Exchange Date” has the meaning specified in Section 3.04(b).



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



     “GAAP” means generally accepted accounting principles, as in effect from time to time, as used
in the United States applied on a consistent basis; provided, that solely for purposes of any
calculation required by the financial covenants contained herein, “GAAP” shall mean generally
accepted accounting principles as used in the United States on the date hereof, applied on a
consistent basis.



     “Government Obligations” means securities which are (i) direct obligations of the United
States or the government or governments that issued the Foreign Currency or Currencies in which the
Securities of a particular series are payable, for the payment of which its full faith and credit
is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States or such government or governments that issued the Foreign
Currency or Currencies in which the Securities of such series are payable, the payment of which is



4









 




unconditionally guaranteed as a full faith and credit obligation by the United States or such
other government or governments, which, in either case, are not callable or redeemable at the
option of the issuer 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.




     “Guarantee” has the meaning set forth in Article Sixteen.



     “Guarantor” means any Person that is liable under a Guarantee under Article Sixteen.



     “Holder” means, in the case of a Registered Security, the Person in whose name a Security is
registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, shall mean the bearer thereof.



     “Indebtedness” means:




     (i) all of the Company’s indebtedness, obligations and other liabilities, contingent or
otherwise, (1) for borrowed money, including overdrafts, foreign exchange contracts,
currency exchange agreements, interest rate protection agreements and any loans or advances
from banks, whether or not evidenced by notes or similar instruments, or (2) evidenced by
credit or loan agreements, bonds, debentures, notes or similar instruments, whether or not
the recourse of the lender is to the whole of the assets of the Company or to only a portion
thereof, other than any account payable or other accrued current liability or obligation
incurred in the ordinary course of business in connection with the obtaining of materials or
services;




     (ii) all of the Company’s reimbursement obligations and other liabilities, contingent
or otherwise, with respect to letters of credit, bank guarantees or bankers’ acceptances;




     (iii) all of the Company’s obligations and liabilities, contingent or otherwise, in
respect of leases required, in conformity with GAAP, to be accounted for as capitalized
lease obligations on the Company’s balance sheet;




     (iv) all of the Company’s obligations and other liabilities, contingent or otherwise,
under any lease or related document, including a purchase agreement, conditional sale or
other title retention agreement, in connection with the lease of real property or
improvements thereon (or any personal property included as part of any such lease) which
provides that the Company is contractually obligated to purchase or cause a third party to
purchase the leased property or pay an agreed upon residual value of the leased property,
including the Company’s obligations under such lease or related document to purchase or
cause a third party to purchase such leased property or pay an agreed upon residual value of
the leased property to the lessor;



5









 






     (v) all of the Company’s obligations, contingent or otherwise, with respect to an
interest rate or other swap, cap, floor or collar agreement or hedge agreement, forward
contract or other similar instrument or agreement or foreign currency hedge, exchange,
purchase or similar instrument or agreement;




     (vi) all of the Company’s direct or indirect guarantees or similar agreements by the
Company in respect of, and all of the Company’s obligations or liabilities to purchase or
otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness,
obligations or liabilities of another person of the kinds described in clauses (i) through
(v) above; and




     (vii) any and all deferrals, renewals, extensions, refinancings and refundings of, or
amendments, modifications or supplements to, any indebtedness, obligation or liability of
the kinds described in clauses (i) through (vi) above.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 3.01; provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is Trustee established
as contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had become such Trustee but
to which such Person, as such Trustee, was not a party.



     “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, shall mean interest payable after Maturity, and, when used with
respect to a Security which provides for the payment of Additional Amounts pursuant to Section
10.11, includes such Additional Amounts.



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



     “Make-Whole Amount,” means, in connection with any optional redemption or accelerated payment
of any Securities, the excess, if any, of: (i) the aggregate present value as of the date of such
redemption or accelerated payment of each dollar of principal being redeemed or paid and the amount
of interest (exclusive of interest accrued to the date of redemption or accelerated payment) that
would have been payable in respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date notice of such



6









 




redemption is given) from the respective dates on which such principal and interest would have
been payable if such redemption or accelerated payment had not been made to the date of redemption
or accelerated payment; over (ii) the aggregate principal amount of the Securities being redeemed
or paid.




     “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, notice of redemption, notice of
option to elect repayment or otherwise.



     “Notice of Default” has the meaning specified in Section 7.01.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors,
the Chief Executive Officer, the President or a Vice President (whether or not designated by a
number or a word or words added before or after the title “vice president”) and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company or a Guarantor, as
applicable, and delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company or
a Guarantor or who may be an employee of or other counsel for the Company or a Guarantor and who
shall be reasonably satisfactory to the Trustee.



     “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02.



     “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 or repayment at
the option of the Holder 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 provision therefor satisfactory to the Trustee has been made;




     (iii) Securities, except to the extent provided in Sections 14.02 and 14.03, with
respect to which the Company has effected defeasance and/or covenant defeasance as provided
in Article Fourteen;




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



7









 






     (v) Securities converted into Common Shares or Preferred Shares pursuant to or in
accordance with this Indenture if the terms of such Securities provide for convertibility
pursuant to Section 3.01;



     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 are present at a meeting of Holders for quorum purposes, and for the
purpose of making the calculations required by TIA Section 3.13, (i) the principal amount of an
Original Issue Discount Security 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
5.02, (ii) the principal amount of any Security denominated in a Foreign Currency or Currencies
that may be counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent, determined pursuant to
Section 3.01 as of the date such Security is originally issued by the Company, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause (i) above) of such
Security, (iii) the principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Security pursuant to Section 3.01, and (iv) 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 the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company or of such other
obligor.



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



     “Payment Blockage Notice” has the meaning specified in Section 17.02.



     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or 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 (and premium, if any) and interest on such Securities
are payable as specified as contemplated by Sections 3.01 and 10.02.



     “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 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated,
destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the
mutilated,



8









 




destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.




     “Preferred Shares” means, with respect to any Person, shares of capital stock or of beneficial
interest issued by such Person that are entitled to a preference or priority over any other shares
of capital stock or beneficial interest issued by such Person upon any distribution of such
Person’s assets, whether by dividend or upon liquidation, dissolution or winding up.



     “Recourse Indebtedness” means Indebtedness, other than Secured Indebtedness as to which
Secured Indebtedness the liability of the obligor thereon is limited to its interest in the
collateral securing such Secured Indebtedness, provided that no such Secured Indebtedness shall
constitute Recourse Indebtedness by reason of provisions therein for imposition of full recourse
liability on the obligor for certain wrongful acts, environmental liabilities, or other customary
exclusions from the so-called “non-recourse” provisions.



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



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



     “Registered Security” shall mean any Security which is registered in the Security Register.



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Registered
Securities of or within any series means the date specified for that purpose as contemplated by
Section 3.01, whether or not a Business Day.



     “Reinvestment Rate” means a rate per annum equal to the sum of (i) .25% (or such other
percentage specified in the terms of any Securities) plus (ii) the arithmetic mean of the yields
under the heading “Week Ending” published in the most recent Statistical Release under the caption
“Treasury Constant Maturities” for the maturity (rounded to the nearest month) corresponding to the
remaining life to maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence
and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month. For the purposes of
calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date
of determination of the Make-Whole Amount shall be used. If the format or content of the
Statistical Release changes in a manner that precludes determination of the Treasury yield in the
above manner, then the Treasury yield shall be determined in the manner that most closely
approximates the above manner, as reasonably determined by the Company. If the format or content of
the Statistical Release changes in a manner that precludes determination of the Treasury Yield in
the above manner, then the Treasury Yield shall be determined in the manner that most closely
approximates the above manner, as reasonably determined by the Company.



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



     “Repayment Price” means, when used with respect to any Security to be repaid at the option



9









 




of the Holder, the price at which it is to be repaid by or pursuant to this Indenture.




     “Representative” means the indenture trustee or other trustee, agent or representative for an
issue of Senior Indebtedness.



     “Responsible Officer,” when used with respect to the Trustee, means any senior vice president,
vice president (whether or not designated by a number or a word or words added before or after the
title “vice president”), or assistant vice president, the secretary, any assistant secretary, or
any other officer working in its Corporate Trust Department and customarily performing functions
similar to those performed by any of the above designated officers and also means, with respect to
a particular corporate trust matter, any other officer to whom such matter is referred because of
such officer’s knowledge and familiarity with the particular subject.



     “Secured Indebtedness” means, without duplication, Indebtedness that is secured by a mortgage,
trust deed, deed of trust, deed to secure Indebtedness, security agreement, pledge, conditional
sale or other title retention agreement, capitalized lease, or other like agreement granting or
conveying security title to or a security interest in real property or other tangible asset(s).
Secured Indebtedness shall be deemed to be incurred (i) on the date the obligor thereon creates,
assumes, guarantees or otherwise becomes liable in respect thereof if it is secured in the manner
described in the preceding sentence on such date or (ii) on the date the obligor thereon first
secures such Indebtedness in the manner described in the preceding sentence if such Indebtedness
was not so secured on the date it was incurred.



     “Securities Act” means the Securities Act of 1933 and any successor statute thereto, in each
case as amended from time to time, and the rules and regulations of the Commission thereunder.



     “Security” has the meaning stated in the first recital of this Indenture and, more
particularly, means any Security or Securities authenticated and delivered under this Indenture;
provided, however, that, if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have
the meaning stated in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of
any series as to which such Person is not Trustee.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.05.



     “Senior Indebtedness” means the principal of, and premium, if any, interest, including any
interest accruing after the commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowed as a claim in the proceeding, and rent payable on or in
connection with, and all fees, costs, expenses and other amounts accrued or due on or in connection
with, Indebtedness, whether secured or unsecured, absolute or contingent, due or to become due,
outstanding on the date of this Indenture or thereafter created, incurred, assumed, guaranteed or
in effect guaranteed by the Company, including all deferrals, renewals, extensions or refundings
of, or amendments, modifications or supplements to, the foregoing; provided, however, that Senior
Indebtedness does not include:



10









 






     (i) Indebtedness that expressly provides that such Indebtedness (1) shall not be senior
in right of payment to the Securities, (2) shall be equal or junior in right of payment to
the Securities or (3) shall be junior in right of payment to any other Indebtedness;




     (ii) any Indebtedness to any Subsidiary, other than Indebtedness to a Subsidiary
arising by reason of guarantees by the Company of Indebtedness of such Subsidiary to a
Person that is not a Subsidiary; and




     (iii) Indebtedness for trade payables or the deferred purchase price of assets or
services incurred in the ordinary course of business.



     “Senior Subordinated Indebtedness” with respect to the Company and any Securities means any
other Securities and any other Indebtedness that specifically provides that such other Securities
or such other Indebtedness shall have the same rank in right of payment as such Securities and
shall not be subordinated in right of payment to any Indebtedness or other obligation of the
Company that is not Senior Indebtedness.



     “Significant Subsidiary” means any Subsidiary which is a “significant subsidiary” (as defined
in Article I, Rule 1-02 of Regulation S-X, promulgated under the Securities Act) of the Company.



     “Special Record Date” for the payment of any Defaulted Interest on the Registered Securities
of or within any series means a date fixed by the Trustee pursuant to Section 3.07.



     “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 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.



     “Statistical Release” means the statistical release designated “H.15(519)” or any successor
publication which is published weekly by the Board of Governors of the Federal Reserve System and
which reports yields on actively traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time of any determination under
the Indenture, then such other reasonably comparable index which shall be designated by the
Company.



     “Subordinated Indebtedness” means, with respect to the Company and any Securities
authenticated and delivered under this Indenture, any Indebtedness that specifically provides that
such Indebtedness is subordinated in right of payment to such Securities.



     “Subsidiary” means, with respect to the Company or a Guarantor, a corporation or general
partnership a majority of the outstanding voting stock of which is owned or controlled, directly or
indirectly, by the Company or the Guarantor, as applicable, or by one or more other Subsidiaries of
the Company or the Guarantor. For the purposes of this definition, “voting stock” means having
voting power for the election of directors, general partners, trustees, managing members or Persons
performing similar functions, whether at all times or only so long as no senior class of securities
has such voting power by reason of any contingency.



     “Successor Company” has the meaning specified in Section 8.01(a).



11









 





     “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended and as in
force at the date as of which this Indenture was executed, except as provided in Section 9.05.



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



     “United States” means, unless otherwise specified with respect to any Securities pursuant to
Section 3.01, the United States of America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.



     “United States person” means, unless otherwise specified with respect to any Securities
pursuant to Section 3.01, an individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the laws of the United
States or an estate or trust the income of which is subject to United States federal income
taxation regardless of its source.



     “Yield to Maturity” means the yield to maturity, computed at the time of issuance of a
Security (or, if applicable, at the most recent redetermination of interest on such Security) and
as set forth in such Security in accordance with generally accepted United States bond yield
computation principles.



     SECTION 1.02 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 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 (including certificates delivered pursuant to Section 10.10) 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



12









 





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



     SECTION 1.03 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 as 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 an Opinion of Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel or certificate or representations 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 as to such factual matters is in
the possession of the Company, unless such counsel knows 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.



     SECTION 1.04 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 of the Outstanding Securities of all
series or one or more series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided
in this Section. The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 15.06.



     Without limiting the generality of this Section 1.04, unless otherwise provided in or pursuant
to this Indenture, a Holder, including a U.S. depository that is a Holder of a global Security, may



13









 




make, give or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. depository that is a Holder of a global
Security may provide its proxy or proxies to the beneficial owners of interests in any such global
Security through such U.S. depository’s standing instructions and customary practices.




     The Trustee shall fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any permanent global Security held by a U.S. depository entitled
under the procedures of such U.S. depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or
other action provided in or pursuant to this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Persons who are beneficial owners of interests on such record date
or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or
take such request, demand, authorization, direction, notice, consent, waiver or other Act, whether
or not such Persons remain beneficial owners after such record date.



     (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 reasonable manner which the Trustee deems sufficient.



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



     (d) The ownership of Bearer Securities may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other
depositary, 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
depositary, 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 reasonably satisfactory. The Trustee and
the Company may assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The ownership of Bearer Securities may also be proved in any other
reasonable manner which the Trustee deems sufficient.



     (e) If the Company shall solicit from the Holders of Registered Securities any request,
demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its
option, in 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. Notwithstanding TIA Section 3.16(c),
such record date shall be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation is completed. 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



14









 




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 eleven
months after the record date.




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



     SECTION 1.05 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 if made, given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, 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 mailed, first class
postage prepaid, to the Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture, Attention: Chief Legal Officer, or at any other address
previously furnished in writing to the Trustee by the Company.



     SECTION 1.06 NOTICE TO HOLDERS; WAIVER.



     Where this Indenture provides for notice of any event to Holders of Registered Securities by
the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities 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. 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 or irregularities in regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such notification to
Holders of Registered Securities as shall be made with the approval of the Trustee shall constitute
a sufficient notification to such Holders for every purpose hereunder.



     Except as otherwise expressly provided herein or otherwise specified with respect to any
Securities pursuant to Section 3.01, where this Indenture provides for notice to Holders of Bearer



15









 




Securities of any event, such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any such notice shall be
deemed to have been given on the date of such publication or, if published more than once, on the
date of the first such publication.




     If by reason of the suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of any notice to Holders of Registered Securities given as provided herein.



     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 the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



     SECTION 1.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS.



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



     SECTION 1.08 SUCCESSORS AND ASSIGNS.



     All covenants and agreements in this Indenture by the Company or a Guarantor shall bind their
respective successors and assigns, whether so expressed or not.



     SECTION 1.09 SEPARABILITY CLAUSE.



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



     SECTION 1.10 BENEFITS OF INDENTURE.



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



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     SECTION 1.11 GOVERNING LAW.



     This Indenture and the Securities and coupons shall be governed by and construed in accordance
with the law of the State of New York applicable to agreements made or instruments entered into and
performed in said state. This Indenture is subject to the provisions of the TIA that are required
to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.



     SECTION 1.12 LEGAL HOLIDAYS.



     In any case where any Interest Payment Date, Redemption Date, Repayment 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 any Security or coupon
other than a provision in the Securities of any series which specifically states that such
provision shall apply in lieu hereof), payment of interest or any Additional Amounts or principal
(and premium, if any) need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or at
the Stated Maturity or Maturity, provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be.



     SECTION 1.13 JUDGMENT CURRENCY.



     To the fullest extent permitted by applicable law, (i) if for the purpose of obtaining
judgment in any court it is necessary to convert the amount due in respect of the principal of, or
premium, if any, or interest on, or Additional Amounts with respect to, the Securities of any
series from the currency in which it is due (the “Required Currency”) into a currency in which the
judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day
on which such judgment is given, and (ii) the Company’s obligations under this Indenture to make
payments in the Required Currency shall, despite any judgment in the Judgment Currency, be
discharged by a payment on account thereof in the Judgment Currency only to the extent that, on the
New York Banking Day following receipt of such payment in the Judgment Currency, the Trustee may,
in accordance with normal banking procedures, purchase in The City of New York the Required
Currency with the amount of the Judgment Currency so paid; and if the amount of the Required
Currency that may be so purchased is less than the amount originally due in the Required Currency,
the Company shall have a separate and independent obligation, despite any such payment or judgment,
to indemnify the payee against such deficiency. For purposes of the foregoing, “New York Banking
Day” means any day other than a Saturday, Sunday, legal holiday or other day on which banking
institutions in The City of New York are authorized or required by law, regulation or executive
order to close.



     SECTION 1.14 NO PERSONAL LIABILITY.



     No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
in any Security or coupon appertaining thereto, or because of any indebtedness evidenced thereby,
shall be had against any promoter, as such, or against any past, present or



17









 




future shareholder, officer or director, as such, of the Company or any Guarantor or of any
successor thereof, either directly or through the Company or any Guarantor or any successor
thereof, under any rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.




ARTICLE II.




SECURITIES FORMS



     SECTION 2.01 FORMS OF SECURITIES.



     The Registered Securities, if any, of each series and the Bearer Securities, if any, of each
series and related coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 3.01, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Securities may be listed, or to conform to usage.



     Unless otherwise specified as contemplated by Section 3.01, Bearer Securities shall have
interest coupons attached.



     The definitive Securities and coupons shall be printed, lithographed or engraved or produced
by any combination of these methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.



     SECTION 2.02 FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.



     Subject to Section 6.11, the Trustee’s certificate of authentication shall be in substantially
the following form:



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



	 	 	 	 	 
	 	[NAME OF TRUSTEE]





as Trustee

 	 
	 	By  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




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     SECTION 2.03 SECURITIES ISSUABLE IN GLOBAL FORM.



     If Securities of or within a series are issuable in global form, as specified as contemplated
by Section 3.01, then, notwithstanding clause (8) of Section 3.01 and the provisions of Section
3.02, any such Security shall represent such of the Outstanding Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities of such series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee (or pursuant to its direction) in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03 or 3.04. Subject to the provisions of Section 3.03 and, if
applicable, Section 3.04, 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 in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04 has been, or
simultaneously is, delivered, 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 1.02 and need not be accompanied by an Opinion of Counsel.



     The provisions of the last sentence of Section 3.03 shall apply to any Security represented by
a 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 1.02 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 sentence of Section 3.03.



     Notwithstanding the provisions of Section 3.07, unless otherwise specified as contemplated by
Section 3.01, payment of principal of and any premium and interest on any Security in permanent
global form shall be made to the Person or Persons specified therein.



     Notwithstanding the provisions of Section 3.08 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a permanent global
Security (i) in the case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent global Security in
bearer form, Euroclear or Clearstream.



ARTICLE III.




THE SECURITIES



     SECTION 3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.



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



     The Securities may be issued in one or more series. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board Resolutions and,



19









 




subject to Section 3.03, set forth, or determined in the manner provided, in an Officers’
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of which (except for the
matters set forth in clauses (1), (2) and (15) below), if so provided, may be determined from time
to time by the Company with respect to unissued Securities of the series when issued from time to
time):




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



     (2) any limit upon the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.05);



     (3) the date or dates, or the method by which such date or dates will be determined, on which
the principal of the Securities of the series shall be payable;



     (4) the rate or rates at which the Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record Date, if any, for the
interest payable on any Registered Security on any Interest Payment Date, or the method by which
such date shall be determined, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;



     (5) the place or places, if any, other than or in addition to the Borough of Manhattan, The
City of New York, where the principal of and premium, if any, and interest on, and any Additional
Amounts payable in respect of, Securities of the series shall be payable, any Registered Securities
of the series may be surrendered for registration of transfer, Securities of the series may be
surrendered for exchange or conversion and notices or demands to or upon the Company in respect of
Securities of the series and this Indenture may be served;



     (6) the period or periods within which, or the date or dates on which, the price or prices at
which, the currency in which, and other terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company, if the Company is to have the
option;



     (7) the obligation, if any, of the Company to redeem, repay or purchase Securities of the
series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof,
and the period or periods within which or the date or dates on which, the price or prices at which,
the currency or currencies in which, and other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;



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



     (9) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;



20









 





     (10) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series that shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 or, if applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance with the provisions of this Indenture,
or the method by which such portion shall be determined;



     (11) if other than Dollars, the Foreign Currency or currencies in which payment of the
principal of (and premium, if any) or interest or Additional Amounts, if any, on the Securities of
the series shall be payable or in which the Securities of the series shall be denominated;



     (12) whether the amount of payments of principal of (and premium, if any) or interest on the
Securities of the series may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on one or more currencies,
commodities, equity indices or other indices), and the manner in which such amounts shall be
determined;



     (13) whether the principal of (and premium, if any) or interest or Additional Amounts, if any,
on the Securities of the series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies other than that in which such Securities are payable in the
absence of the making of such an election, the period or periods within which or the date or dates
on which, and the terms and conditions upon which, such election may be made, and the time and
manner of, and identity of the exchange rate agent with responsibility for, determining the
exchange rate between the currency or currencies in which such Securities are payable in the
absence of the making of such an election and the currency or currencies in which such Securities
are to be payable upon the making of such an election;



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



     (15) any deletions from, modifications of or additions to the Events of Default or covenants
of the Company with respect to Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth herein;



     (16) whether Securities of the series are to be issuable as Registered Securities, Bearer
Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or
delivery of Bearer Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if permitted by applicable laws
and regulations), whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in permanent global form
with or without coupons and, if so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 3.05, and, if Registered Securities of the series are
to be issuable as a global Security, the identity of the depositary for such series;



     (17) 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









 





     (18) the Person to whom any interest on any Registered Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall
be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto
as they severally mature, and the extent to which, or the manner in which, any interest payable on
a temporary global Security on an Interest Payment Date will be paid if other than in the manner
provided in Section 3.04;



     (19) the applicability, if any, of Sections 14.02 and/or 14.03 to the Securities of the series
and any provisions in modification of, in addition to or in lieu of any of the provisions of
Article Fourteen;



     (20) if the Securities of such series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, then the form and/or
terms of such certificates, documents or conditions;



     (21) if the Securities of the series are to be issued upon the exercise of warrants, the time,
manner and place for such Securities to be authenticated and delivered;



     (22) whether and under what circumstances the Company will pay Additional Amounts as
contemplated by Section 10.11 on the Securities of the series to any Holder who is not a United
States person (including any modification to the definition of such term) in respect of any tax,
assessment or governmental charge 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);



     (23) the terms and conditions, if any, upon which the Securities may be convertible into or
exchangeable for Common Shares or other Capital Stock of the Company and the terms and conditions
upon which such conversion or exchange may be effected, including, without limitation, the initial
conversion or exchange price or rate (or manner of calculation thereof), the portion that is
convertible or exchangeable or the method by which any such portion shall be determined, the
conversion or exchange period, provisions as to whether conversion or exchange will be at the
option of the holders or the option of the Company, the events requiring an adjustment of the
conversion or exchange price, and provisions affecting conversion or exchange in the event of the
redemption of such Securities;



     (24) whether and to what extent the Securities of such series will be guaranteed by a
Guarantor and the identity of such Guarantor;



     (25) the terms, if any, of the transfer, mortgage, pledge or assignment as security for the
Securities of such series of any properties, assets, moneys, proceeds, securities or other
collateral, including whether certain provisions of the TIA are applicable and any corresponding
changes to provisions of the applicable indenture as then in effect and including provisions
addressing priority, perfection and escrow arrangements related to the security interest; and



     (26) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture).



22









 





     All Securities of any one series and the coupons 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 in or pursuant to such Board Resolution
(subject to Section 3.03) and set forth in such Officers’ Certificate or in any such 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.



     If any of the terms of the Securities of any series are established by action taken pursuant
to one or more Board Resolutions, a copy of an appropriate record of such action(s) 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 the terms of the Securities of
such series.



     SECTION 3.02 DENOMINATIONS.



     The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 3.01. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global form (which may be of
any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof
and the Bearer Securities of such series, other than Bearer Securities issued in global form (which
may be of any denomination), shall be issuable in denominations of $5,000.



     SECTION 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.



     The Securities and any coupons appertaining thereto shall be executed on behalf of the Company
by its Chairman of the Board, its Chief Executive Officer, its President or one of its Vice
Presidents, and attested by its Secretary or one of its Assistant Secretaries. The signature of any
of these officers on the Securities and coupons may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise reproduced on the
Securities.



     Securities or 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 or coupons.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series, together with any coupon appertaining thereto,
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 connection with
its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in
the United States; and provided further that, unless otherwise specified with respect to any series
of Securities pursuant to Section 3.01, a Bearer Security may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer Security shall have furnished
a certificate to Euroclear or Clearstream, as the case may be, in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to any series of
Securities pursuant to Section 3.01, dated no earlier than 15 days prior to the earlier of the date
on which such



23









 




Bearer Security is delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such temporary Security and
this Indenture. If any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 3.04, the notation of a beneficial owner’s interest
therein upon original issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance of such beneficial
owner’s interest in such permanent global Security. Except as permitted by Section 3.06, the
Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled.




     If all the Securities of any series are not to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit, such Company Order
may set forth procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as interest rate or formula,
maturity date, redemption or repayment provisions, currency of denomination and payment, date of
issuance and date from which interest shall accrue. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities and
any coupons appertaining thereto, the Trustee shall be entitled to receive, and (subject to TIA
Section 3.15(a) through 3.15(d)) shall be fully protected in relying upon,



     (i) an Opinion of Counsel stating that



     (a) the form or forms of such Securities and any coupons have been established in conformity
with the provisions of this Indenture;



     (b) the terms of such Securities and any coupons have been established in conformity with the
provisions of this Indenture; and



     (c) such Securities, together with any coupons appertaining thereto, when completed by
appropriate insertions and executed and delivered by the Company to the Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to or affecting the
enforcement of creditors’ rights generally and to general equitable principles, and will entitle
the Holders thereof to the benefits of this Indenture and any related Guarantee issued pursuant
hereto; and



     (ii) an Officers’ Certificate stating that all conditions precedent provided for in this
Indenture relating to the issuance of the Securities have been complied with and that, to the best
of the knowledge of the signers of such certificate, no Event of Default with respect to any of the
Securities shall have occurred and be continuing.



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



     Notwithstanding the provisions of Section 3.01 and of the second preceding paragraph, if all
the Securities of any series are not to be issued at one time, it shall not be necessary to deliver
an



24









 




Officers’ Certificate otherwise required pursuant to Section 3.01 or a Company Order, or an
Opinion of Counsel or an Officers’ Certificate otherwise required pursuant to the second preceding
paragraph at the time of issuance of each Security of such series, but such order, opinion and
certificates, with appropriate modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Security of such series. After any such first delivery,
any separate request by the Company that the Trustee authenticate Securities of such series for
original issue will be deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such Securities continue
to have been complied with.




     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 3.01.



     No Security or coupon shall be entitled to any benefit under this Indenture or any related
Guarantee or be valid or obligatory for any purpose unless there appears on such Security or
Security to which such coupon appertains a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture and any related Guarantee. 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 3.09
together with a written statement (which need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, the Trustee shall be fully justified in relying thereon and in cancelling such
Security and for all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture
and any related Guarantee.



     SECTION 3.04 TEMPORARY SECURITIES.



     (a) Pending the preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued, in registered form, or, if authorized, in bearer form with one or more coupons or without
coupons, 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. In the case of Securities of any series, such temporary Securities may be in
global form.



     Except in the case of temporary Securities in global form (which shall be exchanged in
accordance with Section 3.04(b) or as otherwise provided in or pursuant to a Board Resolution), if
temporary Securities of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series (accompanied by
any non-matured coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of
the



25









 




same series of authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 3.03. 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.




     (b) Unless otherwise provided in or pursuant to a Board Resolution, this Section 3.04(b) shall
govern the exchange of temporary Securities issued in global form other than through the facilities
of DTC. If any such temporary Security is issued in global form, then such temporary global
Security shall, unless otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or
to such other accounts as they may direct).



     Without unnecessary delay but in any event not later than the date specified in, or determined
pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Company
shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company. On or after the
Exchange Date, such temporary global Security shall be surrendered by the Common Depositary to the
Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in
part, for definitive Securities without charge, and the Trustee shall authenticate and deliver
(subject to the Trustee’s receipt of sufficient delivery instructions from, or provided by or on
behalf of, the Common Depositary), in exchange for each portion of such temporary global Security,
an equal aggregate principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Security to be exchanged.
The definitive Securities to be delivered in exchange for any such temporary global Security shall
be in bearer form, registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 3.01, and, if any
combination thereof is so specified, as requested by the beneficial owner thereof (as identified or
provided to the Trustee by the Common Depositary, or by Euroclear or Clearstream, as applicable);
provided, however, that, unless otherwise specified in such temporary global Security, upon such
presentation by the Common Depositary, such temporary global Security shall be accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion
of such temporary global Security held for its account then to be exchanged and a certificate dated
the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such
temporary global Security held for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture or in such other form as may be established pursuant to Section 3.01;
and provided further that definitive Bearer Securities shall be delivered in exchange for a portion
of a temporary global Security only in compliance with the requirements of Section 3.03.



     Unless otherwise specified in such temporary global Security, the interest of a beneficial
owner of Securities of a series in a temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in
Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section
3.01), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall
be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent
appointed for such



26









 




series of Securities and each Paying Agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive Securities must bear the cost
of insurance, postage, transportation and the like unless such Person takes delivery of such
definitive Securities in person at the offices of Euroclear or Clearstream. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.




     Until exchanged in full as hereinabove provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 3.01, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment
Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established
pursuant to Section 3.01), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as
the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in
such other forms as may be established pursuant to Section 3.01). Notwithstanding anything to the
contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of this Section 3.04(b) and of the third
paragraph of Section 3.03 of this Indenture (in each case, without delivery of a certificate in the
form of Exhibit A-1) and the interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments of principal or
interest owing with respect to a beneficial interest in a temporary global Security will be made
unless and until such interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and Clearstream and not
paid as herein provided shall be returned to the Trustee prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company (subject, however, to any abandoned
property laws that may be applicable).



     SECTION 3.05 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.



     The Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency of the Company in a Place of Payment a register for each series of Securities (the
registers maintained in such office or in any such office or agency of the Company in a Place of
Payment being herein sometimes referred to collectively as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
“Security Registrar” for the purpose of registering Registered Securities and transfers of
Registered Securities on such Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine the Security Register at
all reasonable times.



27









 





     Subject to the provisions of this Section 3.05, upon surrender for registration of transfer of
any Registered Security of any series at any office or agency of the Company 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, bearing a number
not contemporaneously outstanding, and containing identical terms and provisions.



     Subject to the provisions of this Section 3.05, 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 denomination or denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any such 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 with
respect to any series of Securities as contemplated by Section 3.01, Bearer Securities may not be
issued in exchange for Registered Securities.



     If (but only if) permitted by the applicable Board Resolution and (subject to Section 3.03)
set forth in the applicable Officers’ Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 3.01, at the option of the Holder, Bearer Securities of any
series may be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, 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, any such permitted
exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to
the Company 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
is 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 10.02, 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 a Bearer Security of any series is surrendered at
any such office or agency in a permitted exchange for a Registered Security of the same series and
like tenor 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 proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for payment, as the case
may be, 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. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.



     Notwithstanding the foregoing, except as otherwise specified as contemplated by Section



28









 




3.01, any permanent global Security shall be exchangeable only as provided in this paragraph.
If the depositary for any permanent global Security is DTC, then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only to a nominee of
DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such global Security selected or
approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwilling or unable to continue as depositary for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency registered under the Exchange
Act if so required by applicable law or regulation, the Company shall appoint a successor
depositary with respect to such global Security or Securities. If (x) a successor depositary for
such global Security or Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such unwillingness, inability or ineligibility, (y) an
Event of Default has occurred and is continuing and the beneficial owners representing a majority
in principal amount of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or Securities or (z)
the Company, in its sole discretion, determines at any time that all Outstanding Securities (but
not less than all) of any series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities of like series, rank,
tenor and terms in definitive form in an aggregate principal amount equal to the principal amount
of such global Security or Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as specified as
contemplated by Section 3.01 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any event not later
than the earliest date on which such interest may be so exchanged, the Company shall execute, and
the Trustee shall authenticate and deliver (subject to receipt of adequate instructions as to such
beneficial ownership from DTC or the Company), definitive Securities in aggregate principal amount
equal to the principal amount of such beneficial owner’s interest in such permanent global
Security. On or after the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered for exchange by DTC or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such
purpose; provided, however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested may be among those
selected for redemption; and provided further that no Bearer Security delivered in exchange for a
portion of a permanent global Security shall be mailed or otherwise delivered to any location in
the United States. If a Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such exchange occurs 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 proposed date for payment of Defaulted Interest, 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 such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.




     All Securities issued upon any registration of transfer or exchange of Securities shall be the



29









 




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



     No service charge shall be made for any registration of transfer or 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 3.04, 9.06, 11.07 or 13.05 not involving any
transfer.



     The Company or the Trustee, as applicable, shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those selected for redemption
during a period beginning at the opening of business 15 days before selection of the Securities to
be redeemed under Section 11.03 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption
and (B) if such Securities are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any Registered Security so selected for redemption in whole or in part,
except, in the case of any Registered Security to be redeemed in part, the portion thereof not to
be redeemed, 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, or (iv) to issue,
register the transfer of or exchange any Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Security not to be so repaid.



     SECTION 3.06 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.



     If any mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such security or
indemnity as may be required by the Company or the Trustee to save each of them or any agent of
either of them harmless, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a new 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 surrendered Security.



     If there shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and (ii) such security or
indemnity as may be reasonably 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 upon its request
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 new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not contemporaneously
outstanding, with



30









 




coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen coupon appertains.




     Notwithstanding the provisions of the previous two paragraphs, 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, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided,
however, that payment of principal of (and premium, if any), any interest on and any Additional
Amounts with respect to, Bearer Securities shall, except as otherwise provided in Section 10.02, be
payable only at an office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, 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 coupons, 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 and any related Guarantees 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 3.07 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.



     Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 3.01, interest on any Registered Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for the payment of such interest as follows: (i) to Holders having an aggregate
principal amount of $1,000,000 or less of Securities, by check mailed to such Holders at the
address set forth in the Security Register; and (ii) to Holders having an aggregate principal
amount of more than $1,000,000 of Securities, either by check mailed to such Holders or, upon
application by a Holder to the Security Registrar not later than the Regular Record Date for the
payment of such interest, by wire transfer in immediately available funds to such Holder’s account
within the United States, which application shall remain in effect until the Holder notifies, in
writing, the Security Registrar to the contrary.



     Unless otherwise provided as contemplated by Section 3.01 with respect to the Securities of
any series, payment of interest may be made, in the case of a Bearer Security and at the Company’s
option, by transfer to an account maintained by the payee with a bank located outside the United



31









 




States.




     Unless otherwise provided as contemplated by Section 3.01, every permanent global Security
will provide that interest, if any, payable on any Interest Payment Date will be paid to DTC,
Euroclear and/or Clearstream, as the case may be, with respect to that portion of such permanent
global Security held for its account by Cede & Co. or the Common Depositary, as the case may be,
for the purpose of permitting such party to credit the interest received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.



     In case a Bearer Security of any series is surrendered in exchange for a Registered Security
of such series after the close of business (at an office or agency in a Place of Payment for such
series) on any Regular Record Date and before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable on such Interest
Payment Date 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.



     Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 3.01, any interest on any Registered Security of any series that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause (1) or (2) below:



     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Registered Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such
series and the date of the proposed payment (which shall not be less than 20 days after such notice
is received by the Trustee), and at the same time the Company shall deposit with the Trustee an
amount of money in the currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 for the Securities of such series) 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 on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Registered Securities of such series at
his address as it appears in the Security Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the



32









 




Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for such series in exchange for
a Registered Security of such series after the close of business at such office or agency on any
Special Record Date and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment 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.




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



     Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.



     SECTION 3.08 PERSONS DEEMED OWNERS.



     Prior to due presentment of a Registered Security for registration of transfer, the Company,
any Guarantor, the Trustee and any agent of the Company, any Guarantor or the Trustee may treat the
Person in whose name such Registered Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any), and (subject to Sections 3.05
and 3.07) interest on, such Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Company, any Guarantor, the Trustee nor
any agent of the Company, any Guarantor or the Trustee shall be affected by notice to the contrary.



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



     None of the Company, any Guarantor, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a 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 global Security, nothing herein shall



33









 




prevent the Company, any Guarantor, the Trustee, or any agent of the Company, any Guarantor or
the Trustee, from giving effect to any written certification, proxy or other authorization
furnished by any depositary, as a Holder, with respect to such global Security or impair, as
between such depositary and owners of beneficial interests in such global Security, the operation
of customary practices governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.




     SECTION 3.09 CANCELLATION.



     All Securities and coupons surrendered for payment, redemption, repayment at the option of the
Holder, registration of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which
the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. Canceled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless by a Company Order the Company directs their return to it.



     SECTION 3.10 COMPUTATION OF INTEREST.



     Except as otherwise specified as contemplated by Section 3.01 with respect to Securities of
any series, interest on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.



ARTICLE IV.




SATISFACTION AND DISCHARGE



     SECTION 4.01 SATISFACTION AND DISCHARGE OF INDENTURE.



     This Indenture shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series herein expressly provided for,
any right to receive Additional Amounts, as provided in Section 10.11, and any right to convert or
exchange Securities in accordance with their terms), and the Trustee, upon receipt of a Company
Order, and at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when



     (1) either



     (A) all Securities of such series theretofore authenticated and delivered and all coupons, if
any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for



34









 




exchange for Registered Securities and maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 3.05, (ii) Securities and coupons of such series
which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section
11.06, and (iv) Securities and coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or




     (B) all Securities 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 or
currencies 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, for principal (and premium, if any) and interest,
and any Additional Amounts with respect thereto, 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;



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



     (2) 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, the obligations of the
Company to the Trustee and any predecessor Trustee under Section 6.06, the obligations of the
Company to any Authenticating Agent under Section 6.11 and, if money shall have been deposited with
and held by the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of
the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive.



     SECTION 4.02 APPLICATION OF TRUST FUNDS.



     Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if any), and any



35









 




interest and Additional Amounts 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.




ARTICLE V.




REMEDIES



     SECTION 5.01 EVENTS OF DEFAULT.



     “Event of Default,” wherever used herein with respect to any particular series of Securities,
means any one of the following events with respect to such series of Securities (whatever the
reason for such Event of Default and whether or not 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), it being understood that an
Event of Default with respect to a particular series of Securities does not automatically
constitute an Event of Default with respect to any other series of Securities:



     (1) default in any payment of interest on or any Additional Amounts payable in respect of any
Security when due and payable, which default continues for a period of 30 days; or



     (2) default in the payment of the principal amount of (or premium, if any, on) any Security
when due and payable at its Stated Maturity, upon required repurchase, upon declaration or
otherwise; or



     (3) failure by the Company to comply with its obligations in Article Eight; or



     (4) default in the observance or performance of any covenant of the Company in this Indenture
(except as otherwise provided in this Section 5.01), which default continues for a period of 90
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 principal amount of the
Outstanding Securities a written notice, in each case received by the Company (and the Trustee, if
applicable), specifying such default and requiring such default to be remedied and stating that
such notice is a “Notice of Default” hereunder; or



     (5) default under any agreement or other instrument under which the Company or any Subsidiary
then has outstanding indebtedness for money borrowed in excess of $25,000,000 in the aggregate for
the Company and/or any Subsidiary, whether such indebtedness now exists or shall hereafter be
created (but excluding intercompany indebtedness), and either (a) such default results from the
failure to pay any such indebtedness at its stated final maturity or (b) such default has caused
the holder of such indebtedness to declare such indebtedness to be due and payable prior to its
stated final maturity, unless, within 30 days after there has been given, by registered or
certified mail, a written notice of default under this clause (5) to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities, the defaulted payment referred to in clause (a) above shall have been made,
waived or extended or the default referred to in clause (a) above shall have been cured, or the
acceleration of indebtedness referred to in clause (b) above shall have been rescinded, stayed or
annulled or such indebtedness shall have been repaid in full; or



36









 





     (6) the Company, any Significant Subsidiary or a Guarantor pursuant to or within the meaning
of any Bankruptcy Law:



     (A) commences a voluntary case or files a petition, answer or consent seeking reorganization
or relief,



     (B) consents to the entry of a decree or an order for relief against it in an involuntary case
or to the commencement of any such case against it,



     (C) consents to the appointment of or taking possession by 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



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



     (A) is for relief against the Company, any Significant Subsidiary or a Guarantor in an
involuntary case,



     (B) adjudges the Company, any Significant Subsidiary or a Guarantor to be insolvent or
approves a petition seeking reorganization, arrangement, adjustment or composition of any of the
foregoing,



     (C) appoints a Custodian of the Company, any Significant Subsidiary or a Guarantor, or for all
or substantially all of its property, or



     (D) orders the winding up or liquidation of the Company, any Significant Subsidiary or a
Guarantor, and the order or decree remains unstayed and in effect for 60 consecutive days, or



     (8) default in the conversion of the Securities of that series, which default continues for a
period of 15 days; or



     (9) a Guarantee, if issued, ceases to be, or is asserted in writing by the Company or any
Guarantor not to be, in full force or effect or enforceable in accordance with its terms with
respect to Securities of that series, except as otherwise provided herein; or



     (10) a final judgment for the payment of money in the amount of $10,000,000 or more (excluding
any amounts covered by insurance) rendered against the Company or any Significant Subsidiary, which
judgment is not paid, discharged, rescinded, stayed or annulled within 60 days after (a) the date
on which the right to appeal thereof has expired if no such appeal has commenced, or (b) the date
on which all rights to appeal thereof have been extinguished; or



     (11) any other Event of Default provided with respect to Securities of that series.



     As used in this Section 5.01, the term “Bankruptcy Law” means title 11, U.S. Code or any
similar Federal or State law for the relief of debtors and the term “Custodian” means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy Law.



37









 





     SECTION 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.



     If an Event of Default with respect to Securities of any series at the time Outstanding other
than an Event of Default specified in clause (6) or (7) of Section 5.01 occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal or specified portion thereof shall become immediately
due and payable.



     If an Event of Default specified in clause (6) or (7) of Section 5.01 occurs, all unpaid
principal of and accrued interest on the Outstanding Securities of that series (or such lesser
amount as may be provided for in the Securities of such series) shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.



     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 principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:



     (1) the Company has paid or deposited with the Trustee a sum sufficient to pay in the currency
or currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series):



     (A) all overdue installments of interest on and any Additional Amounts payable in respect of
all Outstanding Securities of that series and any related coupons,



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



     (C) to the extent that payment of such interest is lawful, interest upon overdue installments
of interest and any Additional Amounts at the rate or rates borne by or provided for in such
Securities, and



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



     (2) all Events of Default with respect to Securities of that series, other than the nonpayment
of the principal of (or premium, if any) or interest on Securities of that series which have become
due solely by such declaration of acceleration, have been cured or waived as provided in Section
5.13.



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




38












 





     SECTION 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.



     The Company covenants that if:



     (1) default is made in the payment of any installment of interest or Additional Amounts, if
any, on any Security of any series and any related coupon when such interest or Additional Amount
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
of any series at its Maturity,



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



     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums 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 of such series and
collect the moneys 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 of such series, 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 and any related coupons by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.



     SECTION 5.04 TRUSTEE MAY FILE PROOFS OF CLAIM.



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




     (i) 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 principal (and premium, if any) and
interest



39









 







and Additional Amounts, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and




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



     and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of Securities of such
series and 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, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 6.06.



     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 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 coupon in any such proceeding.



     SECTION 5.05 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 of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities and coupons in respect of which such judgment has been
recovered.



     SECTION 5.06 APPLICATION OF MONEY COLLECTED.



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



     FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section
6.06;



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



40









 




Securities and coupons for principal (and premium, if any), interest and Additional Amounts,
respectively; and




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



     SECTION 5.07 LIMITATION ON SUITS.



     No Holder of any Security of any series or any related coupon 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) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;



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



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



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



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



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



     SECTION 5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM, IF ANY, INTEREST
AND ADDITIONAL AMOUNTS.



     Notwithstanding any other provision in 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 3.05 and 3.07) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of redemption or repayment, on the Redemption
Date or the Repayment Date) and to institute suit for the enforcement of any such payment or for
the enforcement of any applicable conversion right in the Securities, and such rights shall not be
impaired without the consent of such Holder.



     SECTION 5.09 RESTORATION OF RIGHTS AND REMEDIES.



     If the Trustee or any Holder of a Security or coupon has instituted any proceeding to enforce



41









 




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, the Company, any Guarantor, the Trustee and the Holders of Securities and
coupons shall, subject to any determination in such proceeding, 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 5.10 RIGHTS AND REMEDIES CUMULATIVE.



     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons
is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.



     SECTION 5.11 DELAY OR OMISSION NOT WAIVER.



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



     SECTION 5.12 CONTROL BY HOLDERS OF SECURITIES.



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



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



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



     (3) the Trustee need not take any action which might involve it in personal liability or be
unduly prejudicial to the Holders of Securities of such series not joining therein.



     SECTION 5.13 WAIVER OF PAST DEFAULTS.



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



     (1) in the payment of the principal of (or premium, if any) or interest on or Additional
Amounts payable in respect of any Security of such series or any related coupons,



42









 





     (2) in the conversion or exchange of the Securities in accordance with their terms, or



     (3) in respect of a covenant or provision hereof which under Article Nine may not be modified
or amended 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; but no such
waiver shall extend to any subsequent or other default or Event of Default or impair any right
consequent thereon.



     SECTION 5.14 WAIVER OF USURY, STAY OR EXTENSION LAWS.



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



     SECTION 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, 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 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 the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest on any Security on
or after the respective Stated Maturities expressed in such Security (or, in the case of redemption
or repayment, on or after the Redemption Date or the Repayment Date) or for the enforcement of any
applicable conversion right in the Securities.



ARTICLE VI.




THE TRUSTEE



     SECTION 6.01 NOTICE OF DEFAULTS.



     Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit, in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on or any Additional Amounts with respect to any
Security of such series,



43









 




or in the payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long as Responsible
Officers of the Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series; and provided further that in
the case of any default or breach of the character specified in Section 5.01(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given until at least 90
days after the occurrence thereof. For the purpose of this Section, the term “default” means any
event which is, or after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series.




     SECTION 6.02 CERTAIN RIGHTS OF TRUSTEE.



     Subject to the provisions of TIA Section 315(a) through 315(d):



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



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



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



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



     (5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders 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;



     (6) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally or by agent or
attorney;



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



44









 




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




     (8) the Trustee shall have no liability for the actions or omissions of any Paying Agent so
long as the Trustee has acted in good faith and with due care with respect to a matter;



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



     (10) subject to clause (11) below, the Trustee shall not be charged with notice or knowledge
of any matter except to the extent reasonably known to a Responsible Officer of the Trustee or set
forth in a written notice received at the Corporate Trust Office and making express reference to
the Indenture, the Company or the Securities; and



     (11) unless and except to the extent otherwise expressly provided herein, the Trustee shall be
under no duty to review or evaluate the contents of any reports or other documents filed with it
pursuant to Section 7.03 or Section 10.09 hereof, except to make them available for inspection at
reasonable times by Holders of Securities.



     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 any of
its rights or powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it.



     Except during the continuance of an Event of Default, the Trustee undertakes to perform only
such duties as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.



     SECTION 6.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.



     The recitals contained herein and in the Securities, except the Trustee’s certificate of
authentication, and in any coupons shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Securities
or coupons, except that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations hereunder and that the
statements made by it in any Statement of Eligibility on Form T-1 supplied to the Company are true
and accurate. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.



     SECTION 6.04 MAY HOLD SECURITIES.



     The Trustee, any Paying Agent, Security Registrar, Authenticating Agent 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 TIA Sections 310(b) and 311, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.



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     SECTION 6.05 MONEY HELD IN TRUST.



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



     SECTION 6.06 COMPENSATION AND REIMBURSEMENT.



     The Company agrees:



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



     (2) except as otherwise expressly provided herein, to reimburse each of the Trustee and any
predecessor Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence or bad faith; and



     (3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including without limitation reasonable attorneys’
fees and costs) of defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.01(6) or Section 5.01(7), 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.



     As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of (or premium, if
any) or interest on particular Securities or any coupons.



     The provisions of this Section shall survive the termination of this Indenture (and shall
survive the resignation or removal of the Trustee pursuant to Section 6.08).



     SECTION 6.07 ELIGIBILITY OF TRUSTEE; CONFLICTING INTERESTS.



     There shall at all times be a Trustee hereunder which shall be eligible to act as Trustee
under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000.
If such Trustee 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 Trustee
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any



46









 




time the Trustee shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter specified in this
Article.




     SECTION 6.08 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.



     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 6.09.



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



     (c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.



     (d) If at any time:



     (1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) 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



     (2) the Trustee shall cease to be eligible under Section 6.07 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



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



     then, in any such case, (i) the Company by or pursuant to a Board Resolution may remove the
Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA
Section 315(e), any Holder of a Security 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 shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities of one or more or
all of such series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series). 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, and to any
successor Trustee appointed by the



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Company with respect to such Securities, the successor Trustee so appointed by the Holders
shall, forthwith upon its acceptance of such appointment, 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 of Securities and accepted appointment in the manner
hereinafter provided, any Holder of a Security 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 Securities of such series.




     (f) 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 1.06. 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 6.09 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, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges and other due but unpaid amounts owing to it hereunder,
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, subject nevertheless to its
claim, if any, provided for in Section 6.06.



     (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 each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to



48









 




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 this Article.



     SECTION 6.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.



     Any entity into which the Trustee may be merged or converted or with which it may be
consolidated, or any entity resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any entity succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such
entity 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 or coupons 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 or coupons so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities or coupons. In case
any Securities or coupons shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in either its own name
or that of its predecessor Trustee, with the full force and effect which this Indenture provides
for the certificate of authentication of the Trustee.



     SECTION 6.11 APPOINTMENT OF AUTHENTICATING AGENT.



     At any time when any of the Securities remain Outstanding, 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
exchange, registration of transfer or partial redemption or repayment 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 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 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



49









 




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 entity into which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any entity resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any entity succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent,
provided such entity 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 1.06. 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 designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 
	 	[NAME OF TRUSTEE]



as Trustee

 	 
	 	By:  	 	 
	 	 	as Authenticating Agent 	 
	 	 	 	 
	 
	 	By:  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



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ARTICLE VII.




HOLDERS’ LISTS AND REPORTS




     SECTION 7.01 DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.



     Every Holder of Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any Authenticating Agent nor
any Paying Agent nor any Security Registrar shall be held accountable by reason of the disclosure
of any information as to the names and addresses of the Holders of Securities in accordance with
TIA Section 312, regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant to a request made
under TIA Section 312(b).



     SECTION 7.02 REPORTS BY TRUSTEE.



     Within 60 days after June 30 of each year commencing with the first June 30 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as of such June 30 if
required by TIA Section 313(a).



     SECTION 7.03 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.



     The Company will furnish or cause to be furnished to the Trustee:



     (a) semi-annually, with respect to each series of Securities, a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of the applicable date, and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished, provided, however, that, so long as the
Trustee is the Security Registrar, no such list shall be required to be furnished.



ARTICLE VIII.




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE



     SECTION 8.01 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.



     The Company shall not consolidate with or merge with or into, or convey, transfer or lease all
or substantially all of its properties and assets (as an entirety or substantially an entirety in
one transaction as a series of transactions) to, any Person, unless:



     (a) the resulting, surviving or transferee Person (the “Successor Company”), if not the
Company itself, is a Person organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia, and the Successor Company (if not the Company
itself) expressly assumes, by a supplemental indenture, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture; and



51









 





     (b) immediately after giving effect to such transaction, no Event of Default shall have
occurred and be continuing.



     SECTION 8.02 SUCCESSOR SUBSTITUTED.



     Upon any consolidation of the Company with or merger of the Company with or into, or any
conveyance, transfer or lease by the Company of all or substantially all of its properties and
assets (as an entirety or substantially an entirety in one transaction or a series of transactions)
to, any Person in accordance with Section 8.01, the Successor Company formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or lease 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.



ARTICLE IX.




SUPPLEMENTAL INDENTURES



     SECTION 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.



     Without the consent of any Holders of Securities or coupons, the Company, when authorized by
or pursuant to a Board Resolution, any Guarantor and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:



     (1) to cure any ambiguity, omission, defect or inconsistency contained in this Indenture; or



     (2) to provide for the assumption by a successor corporation, partnership, trust or limited
liability company of the obligations of the Company contained in this Indenture; or



     (3) to provide for uncertificated Securities in addition to or in place of certificated
Securities; provided, however, that such uncertificated Securities are issued in registered form
for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Securities
are described in Section 163(f)(2)(B) of the Code; or



     (4) to add Guarantees with respect to the Securities; or



     (5) to secure the Securities; or



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



     (7) to add or modify any other provision in this Indenture with respect to matters or
questions arising hereunder which the Company and the Trustee may deem necessary or desirable and
which does not materially and adversely affect the rights of any Holder; or



     (8) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be
necessary to comply with any requirement of the Commission to effect the qualification of this
Indenture under the Trust Indenture Act, or under any similar Federal statute hereafter enacted.



52









 





     SECTION 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.



     With the consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities 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, any
Guarantor of such Securities, and the Trustee, may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:



     (1) reduce the amount of Securities whose Holders must consent to an amendment or waiver; or



     (2) reduce the rate of or extend the stated time for payment of any interest on any Security;
or



     (3) reduce the principal amount of, or extend the Stated Maturity of, any Security; or



     (4) make any change that adversely affects the conversion rights, if any, of any Security; or



     (5) make any Security payable in money other than that stated in such Security; or



     (6) impair the right of a Holder to receive payment of principal (and premium, if any) and
interest on, or any Additional Amounts payable with respect to, such Holder’s Securities on or
after the due dates thereof or to institute a suit for the enforcement of any payment on or with
respect to such Holder’s Securities; or



     (7) modify any of the provisions of this Section 9.02 or Section 5.13, except to increase the
percentage of the principal amount of the Outstanding Securities affected thereby required to
consent to any supplemental indenture pursuant to Section 9.02 or to effect any waiver pursuant to
Section 5.13; or



     (8) to provide that certain other provisions of this Indenture may not be modified or waived
without the consent of the Holder of each Outstanding Security affected thereby.



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



     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.



53









 





     SECTION 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES.



     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the 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 9.04 EFFECT OF SUPPLEMENTAL INDENTURES.



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



     SECTION 9.05 CONFORMITY WITH TRUST INDENTURE ACT.



     Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.



     SECTION 9.06 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.



     Securities 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 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
of such series.



ARTICLE X.




COVENANTS



     SECTION 10.01 PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS.



     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 any
Additional Amounts payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 3.01 with respect to any series of Securities, any interest
due on and any Additional Amounts payable in respect of Bearer Securities on or before Maturity,
other than Additional Amounts, if any, payable as provided in Section 10.11 in respect of principal
of (or premium, if any, on) such a Security, shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby as they severally
mature. Unless otherwise specified with respect to Securities of any series pursuant to Section
3.01, at the option of the Company, all payments of principal may be paid by check to the



54









 




Holder of the Registered Security or other person entitled thereto against surrender of such
Security.




     SECTION 10.02 MAINTENANCE OF OFFICE OR AGENCY.



     If Securities of a series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office or agency where Securities
of that series may be presented or surrendered for payment or conversion, 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: (A) in the
Borough of Manhattan, The City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment or conversion, where any Registered
Securities of that series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served and where Bearer Securities of
that series and related coupons may be presented or surrendered for payment or conversion in the
circumstances described in the following paragraph (and not otherwise); (B) subject to any laws or
regulations applicable thereto in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 10.11) or conversion; provided, however, that if the
Securities of that series are listed on the Luxembourg Stock Exchange or any other 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 Luxembourg or 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 (C) if the Securities of such series are or may also be issued in part
as, or may be converted to, Registered Securities, subject to any laws or regulations applicable
thereto in a Place of Payment for that series located outside the United States, an office or
agency where any Registered Securities of that series may be surrendered for registration of
transfer, 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 each 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, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any Additional Amounts payable
on Bearer Securities of that series pursuant to Section 10.11) or conversion at the offices
specified in the Security, in London, England, and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee its agent to receive all such presentations, surrenders, notices and
demands. Nothing herein shall oblige the Trustee to maintain any such office or agency on behalf of
the Company in any such Place of Payment, other than the Corporate Trust Office.



     Unless otherwise specified with respect to any Securities pursuant to Section 3.01, no payment
of principal, premium or interest on or Additional Amounts in respect of Bearer Securities shall be
made at any office or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if amounts owing with respect to any Bearer Securities of a



55









 




series are payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such series pursuant to
Section 10.11) 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, interest or Additional Amounts, 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 from time to time designate one or more other offices or agencies where the
Securities of one or more series may be presented or surrendered for any or all of such purposes,
and may from time to time rescind any such designation; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in accordance with the requirements set forth above for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency. Unless otherwise
specified with respect to any Securities pursuant to Section 3.01 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series of Securities the
office or agency of the Company in the Borough of Manhattan, The City of New York, and initially
appoints [Name of Trustee] at                     , [New York, New York] as Paying Agent in such city and
as its agent to receive all such presentations, surrenders, notices and demands.



     Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.



     SECTION 10.03 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.



     If the Company shall at any time act as its own Paying Agent with respect to any series of any
Securities and any related coupons, it will, on or before each due date of the principal of (and
premium, if any), or interest on or Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the
currency or currencies in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts 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 of its action or failure so to act.



     Whenever the Company shall have one or more Paying Agents for any series of Securities and any
related coupons, it will, on or before each due date of the principal of (and premium, if any), or
interest on or Additional Amounts in respect of, any Securities of that series, deposit with a
Paying Agent a sum (in the currency or currencies described in the preceding paragraph) sufficient
to pay the principal (and premium, if any) or interest or Additional Amounts, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such principal, premium or
interest or Additional Amounts and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.



     The Company will cause each Paying Agent other than the Trustee to execute and deliver to



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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 principal of (and premium, if any) or interest
on Securities 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 a Guarantor (or any other obligor
upon the Securities) in the making of any such payment of principal (and premium, if any) or
interest; 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 by such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by 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 sums.



     Except as otherwise provided in the Securities of any series (and subject to any abandoned
property laws that may be applicable), any money deposited with the Trustee in trust or with any
Paying Agent, or then held by the Company in trust, for the payment of the principal of (and
premium, if any) or interest on, or any Additional Amounts in respect of, any Security of any
series and remaining unclaimed for two years after such principal (and premium, if any), interest
or Additional Amounts has become due and payable shall be paid to the Company upon Company Request
or (if then held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the Company and any
Guarantor(s) for payment of such principal of (and premium, if any) or interest on, or any
Additional Amounts in respect of, any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such 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 an Authorized Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.



     SECTION 10.04 [RESERVED].



     SECTION 10.05 EXISTENCE.



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




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     SECTION 10.06 MAINTENANCE OF PROPERTIES.



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



     SECTION 10.07 INSURANCE.



     The Company will, and will cause each of its Subsidiaries to, keep all of its insurable
properties adequately insured against loss or damage with insurers of recognized responsibility in
commercially reasonable amounts and types.



     SECTION 10.08 PAYMENT OF TAXES AND OTHER CLAIMS.



     The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed
upon it or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary,
and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary unless such lien would not have a
material adverse effect upon such property; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or
claim (i) whose amount, applicability or validity is being contested in good faith by appropriate
proceedings or (ii) for which the Company has set apart and maintains an adequate reserve.



     SECTION 10.09 COMMISSION AND OTHER REPORTS TO THE TRUSTEE.



     (a) The Company shall ensure delivery to the Trustee within 15 calendar days after it files
such annual and quarterly reports, information, documents and other reports with the Commission,
copies of its annual report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and regulations prescribe) which
the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act in accordance with TIA Section 314(a). In the event the Company is at any time no longer
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall continue
to provide the Trustee with reports containing substantially the same information as would have
been required to be filed with the Commission if the Company had continued to have been subject to
such reporting requirements. In such event, such reports shall be provided at the times the Company
would have been required to provide reports if it had continued to have been subject to such
reporting requirements. The Company also shall comply with the other provisions of TIA Section
314(a). Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such reports, information and documents shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely on Officers’ Certificates). The Trustee
shall



58









 




have no duty or responsibility to review such reports, information or documents. In the event
that the Company shall provide the Trustee with any such report, information or document and shall
not have filed such report, information or document on the Commission’s Electronic Data Gathering,
Analysis and Retrieval system, the Trustee shall promptly mail copies of such report, information
or document to each Holder (other than reports provided solely pursuant to TIA Section 314(a)).




     (b) The Company intends to file the reports, information and documents referred to in Section
10.09(a) with the Commission in electronic form pursuant to Regulation S-T of the Commission using
the Commission’s Electronic Data Gathering, Analysis and Retrieval system.



     Compliance with the foregoing shall constitute delivery by the Company of such reports,
information and documents to the Trustee in compliance with the provisions of Section 10.09(a) and
TIA Section 314(a). The Trustee shall have no duty to search for or obtain any electronic or other
filings that the Company makes with the Commission, regardless of whether such filings are
periodic, supplemental or otherwise. Delivery of the reports, information and documents to the
Trustee pursuant to this Section 10.09(b) shall be solely for the purposes of compliance with this
Section 10.09(b) and with TIA Section 314(a). The Trustee’s receipt of such reports, information
and documents shall not constitute notice to it of the content thereof or of any matter
determinable from the content thereof, including the Company’s compliance with any of its covenants
hereunder, as to which the Trustee is entitled to rely on Officers’ Certificates.



     SECTION 10.10 STATEMENT AS TO COMPLIANCE.



     The Company and each Guarantor will deliver to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of its compliance with all
conditions and covenants under this Indenture and, in the event of any noncompliance, specifying
such noncompliance and the nature and status thereof. For purposes of this Section 10.10, such
compliance shall be determined without regard to any period of grace or requirement of notice under
this Indenture.



     SECTION 10.11 ADDITIONAL AMOUNTS.



     If any Securities of a series provide for the payment of Additional Amounts, the Company will
pay to the Holder of any Security of such series or any coupon appertaining thereto Additional
Amounts as may be specified as contemplated by Section 3.01. Whenever in this Indenture there is
mentioned, in any context except in the case of Section 5.02(1), the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or payment of any related
coupon or the net proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts provided by the
terms of such series established pursuant to Section 3.01 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 provisions hereof shall
not be construed as excluding Additional Amounts in those provisions hereof where such express
mention is not made.



     Except as otherwise specified as contemplated by Section 3.01, 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 that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and any premium is made),
and at



59









 




least 10 days prior to each date of payment of principal and any premium or interest if there
has been any change with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company will furnish the Trustee and the Company’s principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest
on the Securities of that series shall be made to Holders of Securities of that series or any
related coupons who are not United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the 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 of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the Trustee or such Paying
Agent shall be entitled (i) to assume that no such withholding or deduction is required with
respect to any payment of principal, premium, if any, or interest with respect to any Securities of
a series or related coupons until it shall have received a certificate advising otherwise and (ii)
to make all payments of principal, premium, if any, and interest with respect to the Securities of
a series or related coupons without withholding or deductions until otherwise advised. 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 or in reliance on any
Officers’ Certificate furnished pursuant to this Section or in reliance on the Company’s not
furnishing such an Officers’ Certificate.




     SECTION 10.12 WAIVER OF CERTAIN COVENANTS.



     The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 10.05 to 10.11, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all outstanding Securities of
such series, by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.



ARTICLE XI.




REDEMPTION OF SECURITIES



     SECTION 11.01 APPLICABILITY OF ARTICLE.



     Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.



     SECTION 11.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE.



     The election of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of less than all of the
Securities of any series, the Company shall, at least 15 days prior to the giving of the notice of



60









 




redemption in Section 11.04 (unless a shorter notice shall be satisfactory to the Trustee, for
purposes of the Trustee’s administrative convenience), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with such restriction.




     SECTION 11.03 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.



     If less than all the Securities of any series issued on the same day with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series issued
on such date with the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which 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 and the Security Registrar (if other than
itself) in writing of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.



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



     SECTION 11.04 NOTICE OF REDEMPTION.



     Notice of redemption shall be given in the manner provided in Section 1.06, not less than 30
days nor more than 60 days prior to the Redemption Date, unless a shorter period is specified by
the terms of such series established pursuant to Section 3.01, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.



     Any notice that is mailed to the Holders of Registered Securities in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the Holder receives
the notice.



     All notices of redemption shall state:



     (1) the Redemption Date,



     (2) the Redemption Price, accrued interest to the Redemption Date payable as provided in
Section 11.06, if any, and Additional Amounts, if any,



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     (3) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) 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) that on the Redemption Date the Redemption Price and accrued interest to the Redemption
Date payable as provided in Section 11.06, if any, will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,



     (6) 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 and accrued interest, if any, or for
conversion,



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



     (8) 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 date fixed
for redemption or the amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity reasonably satisfactory to the Company, the Trustee
for such series and any Paying Agent is furnished,



     (9) if Bearer Securities of any series are to be redeemed and any Registered Securities of
such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant to Section 3.05 or otherwise,
the last date, as determined by the Company, on which such exchanges may be made,



     (10) the CUSIP number of such Security, if any, and



     (11) if applicable, that a Holder of Securities who desires to convert Securities for
redemption must satisfy the requirements for conversion contained in such Securities, the then
existing conversion price or rate, and the date and time when the option to convert shall expire.



     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 11.05 DEPOSIT OF REDEMPTION PRICE.



     At least one Business Day 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 Twelve, segregate and hold in trust as
provided in Section 10.03) an amount of money in the currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series) sufficient to pay on the Redemption Date the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified
pursuant to Section



62









 




3.01 or in the Securities of such series) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.




     SECTION 11.06 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 in the
currency or currencies in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series) (together with accrued
interest, if any, 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, if the
same were interest-bearing, cease to bear interest and the coupons for such interest appertaining
to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void.
Upon surrender of any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest, 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 10.02) and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender of coupons for such
interest; and provided further that, except as otherwise specified in or pursuant to this Indenture
or the Registered Securities of a series, 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 3.07.



     If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant
coupons maturing after the Redemption Date, such 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 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 the United States (except as otherwise provided in Section 10.02) and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender of those coupons.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal of and premium, if any, and, to the extent legally enforceable, interest
or Yield to Maturity (in the case of Original Issue Discount Securities) on such Security shall,
until paid, bear interest from the Redemption Date at the rate borne by the Security on the
Redemption Date.



     SECTION 11.07 SECURITIES REDEEMED IN PART.



     Any Registered Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form



63









 




satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the

     Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.



ARTICLE XII.




SINKING FUNDS



     SECTION 12.01 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 3.01 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 such Securities of any series is herein referred
to as an “optional sinking fund payment.” If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to reduction as
provided in Section 12.02. 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 12.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.



     The Company may, in satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of a series, (1) deliver Outstanding Securities of such series (other
than Outstanding Securities any previously called for redemption) together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining thereto and (2) apply as a
credit Securities of such 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, as provided for by the terms of such
Securities, or which have otherwise been acquired by the Company; provided that such Securities so
delivered or applied as a credit have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the applicable Redemption Price specified
in such Securities for redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.



     SECTION 12.03 REDEMPTION OF SECURITIES FOR SINKING FUND.



     Not less than 60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash in the currency or currencies
in which the Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to Section 12.02, and the
optional amount,



64









 




if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so delivered and credited. If such Officers’
Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified.
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
11.03 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 11.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.




ARTICLE XIII.




REPAYMENT AT THE OPTION OF HOLDERS



     SECTION 13.01 APPLICABILITY OF ARTICLE.



     Repayment of Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section 3.01) in accordance
with this Article.



     SECTION 13.02 REPAYMENT OF SECURITIES.



     Securities of any series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Company covenants that at least
one Business Day prior to the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money in the currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series) sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date, unless otherwise specified pursuant to Section 3.01 or in the
Securities of such series) accrued interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.



     SECTION 13.03 EXERCISE OF OPTION.



     Securities of any series subject to repayment at the option of the Holders thereof will
contain an “Option to Elect Repayment” form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive at the Place of Payment
therefor specified in the terms of such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such Securities) not earlier than 60 days nor
later than 30 days prior to the Repayment Date (1) the Security so providing for such repayment
together with the “Option to Elect Repayment” form on the reverse thereof duly completed by the
Holder (or by the Holder’s attorney duly authorized in writing) or (2) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. (“NASD”), or a commercial bank or trust company in the
United States setting forth the name of



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the Holder of the Security, the principal amount of the Security, the principal amount of the
Security to be repaid, the CUSIP number, if any, or a description of the tenor and terms of the
Security, a statement that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled “Option to Elect
Repayment” on the reverse of the Security, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, telex, facsimile transmission or letter; provided,
however, that such telegram, telex, facsimile transmission or letter shall only be effective if
such Security and form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in part if, following
such repayment, the unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be repaid is a part.
Except as otherwise may be provided by the terms of any Security providing for repayment at the
option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.




     SECTION 13.04 WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE.



     If Securities of any series providing for repayment at the option of the Holders thereof shall
have been surrendered as provided in this Article and as provided by or pursuant to the terms of
such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease
to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any, appertaining
thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the Repayment Date shall be
payable only at an office or agency located outside the United States (except as otherwise provided
in Section 10.02) and, unless otherwise specified pursuant to Section 3.01, only upon presentation
and surrender of such coupons; and provided further that, in the case of Registered Securities
(except as otherwise specified in or pursuant to this Indenture or the Registered Securities of a
series), installments of interest, if any, whose Stated Maturity is on or prior to the Repayment
Date shall be payable (but without interest thereon, unless the Company shall default in the
payment thereof) to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.07.



     If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant
coupons maturing after the Repayment Date, such Security may be paid after deducting from the
amount payable therefor as provided in Section 13.02 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 shall be furnished to them such security or indemnity as they



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may require to save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made as provided in the preceding sentence, 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 the United States (except as
otherwise provided in Section 10.02) and, unless otherwise specified as contemplated by Section
3.01, only upon presentation and surrender of those coupons.




     If the principal amount of any Security surrendered for repayment shall not be so repaid upon
surrender thereof, such principal amount (and, to the extent legally enforceable, the interest, if
any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment
Date at the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by such Security on the Repayment Date.



     SECTION 13.05 SECURITIES REPAID IN PART.



     Upon surrender of any Registered Security which is to be repaid in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Company, a new Registered Security or Securities
of the same series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.



ARTICLE XIV.




DEFEASANCE AND COVENANT DEFEASANCE



     SECTION 14.01 APPLICABILITY OF ARTICLE; COMPANY’S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.



     If, pursuant to Section 3.01, provision is made for either or both of (a) defeasance of the
Securities of or within a series under Section 14.02 or (b) covenant defeasance of the Securities
of or within a series under Section 14.03, then the provisions of such Section or Sections, as the
case may be, together with the other provisions of this Article (with such modifications thereto as
may be specified pursuant to Section 3.01 with respect to any 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 14.02 (if applicable) or Section 14.03 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon compliance with the conditions set
forth below in this Article.



     SECTION 14.02 DEFEASANCE AND DISCHARGE.



     Upon the Company’s exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons appertaining thereto on the
date the conditions set forth in Section 14.04 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 Outstanding Securities and any coupons appertaining
thereto, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section
14.05



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and the other Sections of this Indenture referred to in clauses (A) and (B) below, and to have
satisfied all of 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 execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any coupons appertaining
thereto to receive, solely from the trust fund described in Section 14.04 and as more fully set
forth in such Section, payments in respect of the principal of (and premium, if any) and interest,
if any, on such Securities and any coupons appertaining thereto when such payments are due, (B) the
Company’s obligations with respect to such Securities under Sections 3.05, 3.06, 10.02 and 10.03
and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated
by Section 10.11, and under or with respect to Section 6.06 hereof, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, (D) the rights of Holders to convert Securities, if
any, in accordance with their terms, and (E) this Article. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section notwithstanding the prior exercise
of its option under Section 14.03 with respect to such Securities and any coupons appertaining
thereto.




     SECTION 14.03 COVENANT DEFEASANCE.



     Upon the Company’s exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its obligations under Sections
10.05 to 10.10, inclusive, and, if specified pursuant to Section 3.01, its obligations under any
other covenant, with respect to such Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 14.04 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 10.05 to 10.10,
inclusive, or 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
Outstanding 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 5.01(4) or
5.01(11) 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 14.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.



     The following shall be the conditions to application of Section 14.02 or Section 14.03 to any
Outstanding Securities of or within a series and any coupons appertaining thereto:



     (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.07 who shall agree in writing with the
Company and the Trustee, an executed copy of which shall be provided to the Trustee, to comply with
the provisions of this Article Fourteen applicable to it (any such other trustee being referred to
herein, and in Section 14.05, as an “Other Qualifying Trustee”) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any coupons appertaining thereto, (1)
an



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amount in such currency or currencies in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2) Government Obligations applicable
to such Securities and coupons appertaining thereto (determined on the basis of the currency or
currencies in which such Securities and coupons appertaining thereto are then specified as payable
at Stated Maturity) which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day before the due date of
any payment of principal of (and premium, if any) and interest, if any, on such Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination thereof, in any case, in an
amount, sufficient, without consideration of any reinvestment of such principal and interest, in
the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or Other Qualifying Trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such Securities and any
coupons appertaining thereto. The Trustee shall have no liability for the actions or omissions of
any Other Qualifying Trustee.




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



     (c) No Event of Default or event which with notice or lapse of time or both would become an
Event of Default with respect to such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar as Sections 5.01(6) and 5.01(7)
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).



     (d) In the case of an election under Section 14.02, the Company shall have delivered to the
Trustee an Opinion of Counsel stating 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 execution 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 Outstanding
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.



     (e) In the case of an election under Section 14.03, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding 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 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.



     (f) 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 14.02 or the
covenant defeasance under Section 14.03 (as the case may be) have been complied with and an Opinion
of Counsel to the effect that either (i) as a result of a deposit pursuant to subsection (a) above
and the related exercise of the Company’s option under Section 14.02 or Section 14.03 (as the case
may be), registration is not required under the Investment Company Act



69









 




of 1940, as amended, by the Company, with respect to the trust funds representing such deposit
or by the Trustee for such trust funds or (ii) all necessary registrations under said Act have been
effected.




     (g) Notwithstanding any other provisions of this Section, 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 pursuant to Section 3.01.



     SECTION 14.05 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS.



     Subject to the provisions of the last paragraph of Section 10.03, all money and Government
Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds
thereof) deposited with the Trustee (or Other Qualifying Trustee) pursuant to Section 14.04 in
respect of any Outstanding Securities of any series and any coupons appertaining thereto shall be
held in trust and applied by the Trustee (or such Other Qualifying Trustee, as applicable), 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 (including the Company
acting as its own Paying Agent) as the Trustee (or such Other Qualifying Trustee, as applicable)
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 (and premium, if any) and interest and
Additional Amounts, if any, but such money need not be segregated from other funds except to the
extent required by law.



     Unless otherwise specified with respect to any Security pursuant to Section 3.01, if, after a
deposit referred to in Section 14.04(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 3.01 or the terms
of such Security to receive payment in a currency other than that in which the deposit pursuant to
Section 14.04(a) has been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the currency in which the deposit pursuant to Section 14.04(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 of any such
election) the amount or other property 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 the
applicable market exchange rate for such currency in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such currency in effect (as
nearly as feasible) at the time of the Conversion Event.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Government Obligations deposited pursuant to Section 14.04 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.



     Anything in this Article to the contrary notwithstanding, subject to Section 6.06, the Trustee
(or such Other Qualifying Trustee, as applicable) 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 14.04 which, in the opinion of a nationally



70









 




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, in accordance with this
Article.




ARTICLE XV.




MEETINGS OF HOLDERS OF SECURITIES



     SECTION 15.01 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.



     A meeting of Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.



     SECTION 15.02 CALL, NOTICE AND PLACE OF MEETINGS.



     (a) The Trustee may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 15.01, to be held at such time and at such place in the Borough of
Manhattan in The City of New York as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.06, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.



     (b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 10% in principal amount of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in
Section 15.01, by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine the time and the place in
the Borough of Manhattan in The City of New York for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in paragraph (a) of this Section.



     SECTION 15.03 PERSONS ENTITLED TO VOTE AT MEETINGS.



     To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote
at such meeting and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company or a Guarantor and their counsel.



     SECTION 15.04 QUORUM; ACTION.



     The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of Securities of such series; provided,



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however, that if any action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to
vote such specified percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders of Securities of
such series, be dissolved. In any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.02(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall constitute a
quorum.




     Except as limited by the proviso to Section 9.02, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any request, demand, authorization, direction, notice, consent, waiver
or other action which this Indenture expressly provides may be made, given or taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.



     Any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of Securities of such
series and the related coupons, whether or not present or represented at the meeting.



     Notwithstanding the foregoing provisions of this Section 15.04, if any action is to be taken
at a meeting of Holders of Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal amount
of all Outstanding Securities affected thereby, or of the Holders of such series and one or more
additional series:




     (i) there shall be no minimum quorum requirement for such meeting; and




     (ii) the principal amount of the Outstanding Securities of such series that vote in
favor of such request, demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.



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     SECTION 15.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.



     (a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard
to proof of the holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required
by any such regulations, the holding of Securities shall be proved in the manner specified in
Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section
1.04 or by having the signature of the Person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in Section 1.04 or other
proof.



     (b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders of Securities as
provided in Section 15.02(b), in which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of such series
represented at the meeting.



     (c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of
a Security of such series or proxy.



     (d) Any meeting of Holders of Securities of any series duly called pursuant to Section 15.02
at which a quorum is present may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series represented at the
meeting, and the meeting may be held as so adjourned without further notice.



     SECTION 15.06 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.



     The vote upon any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.02 and, if applicable, Section 15.04.
Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee,



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the latter to have attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.




ARTICLE XVI.




GUARANTEE OF SECURITIES



     SECTION 16.01 GUARANTEE.



     (1) Each Person designated as a “Guarantor” in the Board Resolution, supplemental indenture or
Officers’ Certificate establishing a series of Securities that also establishes itself as a
Guarantor of such Securities by Board Resolution or pursuant to authority granted by one or more
Board Resolutions and set forth, or determined in the manner provided, in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, with respect to each series of
Securities to which this Article Sixteen is made applicable, irrevocably and unconditionally
guarantees (the “Guarantee”) to each Holder of a Security of such series authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Securities of such series or the obligations of
the Company under this Indenture or the Securities of such series, that: (i) the principal of and
premium, if any, and interest on, or any Additional Amount in respect of, the Securities of such
series will be paid in full when due, whether at the Stated Maturity or Interest Payment Date, by
acceleration, call for redemption, or otherwise; (ii) all other obligations of the Company to the
Holders of such series or the Trustee under this Indenture or the Securities of such series will be
promptly paid in full, all in accordance with the terms of this Indenture and the Securities of
such series; and (iii) in case of any extension of time of payment or renewal of any Securities of
such series or any of such other obligations thereunder, they will be paid in full when due in
accordance with the terms of the extension or renewal, whether at the Stated Maturity or Interest
Payment Date, by acceleration, call for redemption, or otherwise. Failing payment when due of any
amount so guaranteed for whatever reason, each Guarantor shall be obligated to pay the same before
failure so to pay becomes an Event of Default with respect to Securities of any series. If the
Company defaults in the payment of the principal of or premium, if any, or interest on, or any
Additional Amount in respect of, the Securities of a series so guaranteed when and as the same
shall become due, whether at the Stated Maturity or Interest Payment Date, by acceleration, call
for redemption, or otherwise, without the necessity of action by the Trustee or any Holder, each
Guarantor with respect to such series shall be required to promptly make such payment in full. The
obligations of all Guarantors under this Article Sixteen shall be joint and several.



     (2) Each Guarantor agrees with respect to Securities of any series that its obligations with
regard to this Guarantee shall be as principal and not merely as surety and shall be full,
irrevocable and unconditional, irrespective of the validity, regularity or enforceability of the
Securities of such series or this Indenture, the absence of any action to enforce the same, any
delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the
recovery of any judgment against the Company, any action to enforce the same or any other
circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety
or a guarantor. Each Guarantor with respect to Securities of any series hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company or right to
require the prior disposition of the assets of the Company to meet its obligations, protest, notice
and all demands whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of all



74









 




obligations contained in the Securities of such series and this Indenture as it relates to
such series of Securities.




     (3) If any Holder of Securities of a series or the Trustee is required by any court or
otherwise to return to any of the Company or a Guarantor with respect to Securities of that series,
or any Custodian, trustee, or similar official acting in relation to any of the Company or a
Guarantor, any amount paid by any of the Company or a Guarantor to the Trustee or such Holder with
respect to Securities of that series, the Guarantee with respect to Securities of that series, to
the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor
agrees that it will not be entitled to any right of subrogation in relation to the Holders of
Securities of a series in respect of any obligations guaranteed hereby until payment in full of all
obligations of Securities of such series. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Section 5.02 for the
purposes of a Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Company of the obligations so guaranteed, and (ii) in the event of any
declaration of acceleration of those obligations as provided in Section 5.02, those obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors with
respect to Securities of a series for purposes of the Guarantee.



     (4) Each Guarantor and by its acceptance of a Security issued hereunder each Holder hereby
confirms that it is the intention of all such parties that the Guarantee by each Guarantor set
forth in Section 16.01(1) not constitute a fraudulent transfer or conveyance for purpose of any
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the Holders and all Guarantors
hereby irrevocably agree that the obligations of each of the Guarantors under the Guarantee set
forth in Section 16.01(1) shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Guarantor, and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to the next succeeding
sentence, result in the obligations of such Guarantor under such Guarantee not constituting such a
fraudulent transfer or conveyance. Each Guarantor that makes any payment or distribution under
Section 16.01(1) shall be entitled to a contribution from each other Guarantor equal to its Pro
Rata Portion of such payment or distribution. For purposes of the foregoing, the “Pro Rata Portion”
of any Guarantor means the percentage of net assets of all Guarantors held by such Guarantor,
determined in accordance with GAAP.



     (5) It is the intention of the parties that the obligations of the Guarantors shall be in, but
not in excess of, the maximum amount permitted by applicable law. Accordingly, if the obligations
in respect of the Guarantee would be annulled, avoided or subordinated to the creditors of any
Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court
as a result of a determination both that such Guarantee was made without fair consideration and,
immediately after giving effect thereto, such Guarantor was insolvent or unable to pay its debts as
they mature or left with an unreasonably small capital, then the obligations of such Guarantor
under such Guarantee shall be reduced by such court if and to the extent such reduction would
result in the avoidance of such annulment, avoidance or subordination; provided, however, that any
reduction pursuant to this paragraph shall be made in the smallest amount as is strictly necessary
to reach such result. For purposes of this paragraph, “fair consideration,” “insolvency,” “unable
to pay its



75









 




debts as they mature,” “unreasonably small capital” and the effective times of reductions, if
any, required by this paragraph shall be determined in accordance with applicable law.




     (6) If the obligations of any Guarantor are reduced pursuant to Section 16.01(4) or 1601(5)
above, such reduction shall be applied proportionately with respect to all Securities (of whatever
series) guaranteed under Section 16.01, in accordance with the respective outstanding principal
amount of such Securities so guaranteed (or, if any Securities are Original Issue Discount
Securities, the accreted value of such Securities) and being then due upon the acceleration of the
payment of such Securities.



     (7) A Guarantor may consolidate with, sell, lease or convey all or substantially all of its
assets to, or merge with or into, the Company, a Subsidiary of the Company or another Guarantor at
any time without limitation, provided that, if the successor entity or entity acquiring the assets
is a Subsidiary of the Company or another Guarantor, such entity expressly or by operation of law
assumes all of the obligations of the Guarantor under this Indenture in connection with the
transaction. In any such case, the Guarantor shall be released from all obligations under this
Indenture.



     (8) In addition to the transactions permitted by Section 16.01(7), a Guarantor may consolidate
with, sell, lease or convey all or substantially all of its assets to, or merge with or into, any
other corporation, provided that, in any such case, the Guarantor shall be the continuing
corporation, or the successor corporation or corporation acquiring the assets shall be a
corporation organized and existing under the laws of the United States or a State thereof and such
corporation expressly assumes all of the obligations of the Guarantor under this Indenture by
supplemental indenture complying with Article Nine hereof, satisfactory to the Trustee, executed
and delivered to the Trustee by such corporation. In any such case, the Guarantor shall be released
from all obligations under this Indenture. Any such consolidation, sale, lease, conveyance or
merger is also subject to the condition that the Trustee receive an Officers’ Certificate of the
Guarantor and an Opinion of Counsel to the effect that the transaction, and the assumption by any
successor corporation or acquiror of assets, complies with the provisions of this Section 16.01(8)
and that all conditions precedent herein provided for relating to such transaction have been
complied with.



     (9) Upon a sale, transfer or other disposition of Capital Stock of a Subsidiary Guarantor by
the Company to a Person other than the Company, which disposition (i) is not subject to Section
16.01(7), Section 16.01(8) or Article Eight, (ii) causes such Guarantor to no longer be a
Subsidiary of the Company, (iii) is for consideration at least equal to the fair value of the
Capital Stock disposed of (in the good faith determination of the Board of Directors of the
Company) and (iv) is otherwise in compliance with the terms of this Indenture, such Guarantor shall
be released from all obligations under this Indenture. Upon the delivery by the Company to the
Trustee of an Officers’ Certificate and, if requested by the Trustee, an Opinion of Counsel to the
effect that the transaction or series of related transactions giving rise to the release of such
obligations was made in accordance with the provisions of this Indenture, the Trustee shall execute
any documents reasonably required in order to evidence the release of such Guarantor from its
obligations. Any Guarantor not so released remains liable for the full amount of principal of and
premium, if any, and interest on, and any Additional Amounts with respect to, the Securities as
provided in this Article Sixteen.



     SECTION 16.02 FUTURE GUARANTORS.



     Each Person providing a guarantee of any Security of a series pursuant to this Indenture



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shall execute and deliver a supplemental indenture making such Person a party to this
Indenture for the purpose of becoming a Guarantor.




     SECTION 16.03 DELIVERY OF GUARANTEE.



     The delivery of any Security of a series by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in Section 16.01 on behalf of
each Guarantor for that series.



ARTICLE XVII.




SUBORDINATION



     SECTION 17.01 AGREEMENT TO SUBORDINATION.



     The Company covenants and agrees, and each Holder of Securities issued hereunder by its
acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article; and each Person holding any Security, whether upon original issue
or upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such
provisions.



     The payment of the principal of, and premium, if any, the cash portion of the conversion
obligation, if any, and interest on, all Securities issued hereunder shall, to the extent and in
the manner hereinafter set forth, be subordinated and subject in right of payment to the prior
payment in full, in cash or other payment satisfactory to the holders of Senior Indebtedness, of
all Senior Indebtedness, whether outstanding at the date of this Indenture or thereafter incurred.
The Securities shall rank senior in right of payment to all Subordinated Indebtedness and equal in
right of payment to all other Senior Subordinated Indebtedness.



     No provision of this Article shall prevent the occurrence of any default or Event of Default
hereunder.



     SECTION 17.02 PAYMENTS TO HOLDERS.



     No payment shall be made with respect to the principal of, and premium, if any, the cash
portion of the conversion obligation, if any, or interest on, the Securities except payments and
distributions made by the Trustee as permitted by the first or second paragraph of Section 17.05,
if:



     (1) a default in the payment of principal, premium, interest, rent or other obligations due on
any Designated Senior Indebtedness occurs and is continuing (or, in the case of Designated Senior
Indebtedness for which there is a period of grace, in the event of such a default that continues
beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated
Senior Indebtedness), unless and until such default shall have been cured or waived or shall have
ceased to exist; or



     (2) a default, other than a payment default, on any Designated Senior Indebtedness occurs and
is continuing that then permits holders of such Designated Senior Indebtedness to accelerate its
maturity and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a
Representative or holder of such Designated Senior Indebtedness, unless and until the earlier of
(x) the date on which such default is cured or waived or ceases to exist or (y) 179 days after the
date on which the Payment Blockage Notice is received.



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     If the Trustee receives any Payment Blockage Notice pursuant to clause (2) above, no
subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until
at least 365 days shall have elapsed since the initial effectiveness of the immediately prior
Payment Blockage Notice and all scheduled payments on the Securities that have come due have been
paid in full in cash. No nonpayment default that existed or was continuing on the date of delivery
of any Payment Blockage Notice to the Trustee (unless such default was waived, cured or otherwise
ceased to exist and thereafter subsequently reoccurred) shall be, or be made, the basis for a
subsequent Payment Blockage Notice.



     The Company may and shall resume payments on and distributions in respect of the Securities
upon the earlier of:



     (a) in the case of a default referred to in clause (1) above, the date upon which the default
is cured or waived or ceases to exist, or



     (b) in the case of a default referred to in clause (2) above, the earlier of the date on which
such default is cured or waived or ceases to exist or 179 days after the date on which the
applicable Payment Blockage Notice is received, if the maturity of such Designated Senior
Indebtedness has not been accelerated, unless this Article otherwise prohibits the payment or
distribution at the time of such payment or distribution.



     Upon any payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company (whether voluntary or involuntary) or in
bankruptcy, insolvency, receivership or similar proceedings, all amounts due or to become due upon
all Senior Indebtedness shall first be paid in full, in cash or other payment satisfactory to the
holders of Senior Indebtedness, before any payment is made on account of the principal of, and
premium, if any, the cash portion of the conversion obligation, if any, or interest on, the
Securities (except payments made pursuant to Article Four from monies deposited with the Trustee
pursuant thereto prior to commencement of proceedings for such dissolution, winding-up, liquidation
or reorganization); and upon any such dissolution or winding-up or liquidation or reorganization of
the Company or bankruptcy, insolvency, receivership or other proceeding, any payment by the
Company, or distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Securities or the Trustee would be entitled,
except for the provision of this Article, shall (except as aforesaid) be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders of the Securities or by the Trustee under this Indenture, if
received by them or it, directly to the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such holders, or as otherwise
required by law or a court order) or their Representative or Representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness in full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness, before any payment or distribution is made to the Holders of the Securities
or to the Trustee.



     For purposes of this Article, the words, “cash, property or securities” shall not be deemed to
include shares of Capital Stock of the Company, as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the



78









 




payment of which is subordinated at least to the extent provided in this Article with respect
to the Securities to the payment of all Senior Indebtedness which may at the time be outstanding;
provided, however, that (i) the Senior Indebtedness is assumed by the new corporation, if any,
resulting from any reorganization or readjustment and (ii) the rights of the holders of Senior
Indebtedness (other than leases which are not assumed by the Company or the new corporation, as the
case may be) are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the conveyance, transfer or
lease of its property as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eight shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 17.02 if such other
corporation shall, as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions stated in Article Eight.




     In the event of the acceleration of the Securities because of an Event of Default, no payment
or distribution shall be made to the Trustee or any Holder of Securities in respect of the
principal of, and premium, if any, the cash portion of the conversion obligation, if any, or
interest on, the Securities by the Company until all Senior Indebtedness has been paid in full in
cash or other payment satisfactory to the holders of Senior Indebtedness or such acceleration is
rescinded in accordance with the terms of this Indenture. If payment of Securities is accelerated
because of an Event of Default, the Company shall promptly notify holders of Senior Indebtedness of
such acceleration.



     In the event that, notwithstanding the foregoing provisions, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or securities (including,
without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received
by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full, in
cash or other payment satisfactory to the holders of Senior Indebtedness, or provision is made for
such payment thereof in accordance with its terms in cash or other payment satisfactory to the
holders of Senior Indebtedness, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of Senior Indebtedness or their
Representative or Representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full, in
cash or other payment satisfactory to the holders of Senior Indebtedness, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior Indebtedness.



     SECTION 17.03 SUBROGATION OF SECURITIES.



     Subject to the payment in full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, of all Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article (equally and ratably with the holders of
all indebtedness of the Company which by its express terms is subordinated to other indebtedness of
the Company to substantially the same extent as the Securities are subordinated and is entitled to
like rights of subrogation) to the rights of the holders of Senior Indebtedness to receive payments
or distributions of cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal of, and premium, if any, the cash portion of the conversion
obligation, if any, and



79









 




interest on, the Securities shall be paid in full, in cash or other payment satisfactory to
the holders of Senior Indebtedness; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payment over, pursuant to the provisions of this Article, to or for the
benefit of the holders of Senior Indebtedness by Holders of the Securities or the Trustee shall, as
between the Company, its creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment by the Company to or on account of the Senior Indebtedness;
and no payments or distributions of cash, property or securities to or for the benefit of the
Holders of the Securities pursuant to the subrogation provisions of this Article, which would
otherwise have been paid to the holders of Senior Indebtedness, shall be deemed to be a payment by
the Company to or for the account of the Securities. It is understood that the provisions of this
Article are and are intended solely for the purposes of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand.




     Nothing contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than the holders of Senior
Indebtedness and the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of, and premium, if any,
the cash portion of the conversion obligation, if any, and any interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.



     Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee and the Holders of the Securities shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which such bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of the Securities, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon and all other facts
pertinent thereto or to this Article.



     SECTION 17.04 AUTHORIZATION OF EFFECT SUBORDINATION.



     Each Holder of a Security by the Holder’s acceptance thereof authorizes and directs the
Trustee on the Holder’s behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in this Article and appoints the Trustee to act as the Holder’s
attorney-in-fact for any and all such purposes.



     SECTION 17.05 NOTICE TO TRUSTEE.



     The Company shall give prompt written notice in the form of an Officers’ Certificate to a
Responsible Officer of the Trustee and to any Paying Agent of any fact known to the Company



80









 




which would prohibit the making of any payment of monies to or by the Trustee or any Paying
Agent in respect of the Securities pursuant to the provisions of this Article. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the making of any payment
of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this
Article, unless and until a Responsible Officer of the Trustee shall have received written notice
thereof at the Corporate Trust Office from the Company (in the form of an Officers’ Certificate) or
a Representative or a holder or holders of Senior Indebtedness or from any trustee thereof; and
before the receipt of any such written notice, the Trustee shall be entitled in all respects to
assume that no such facts exist; provided, however, that, if on a date not less than one Business
Day prior to the date upon which by the terms hereof any such monies may become payable for any
purpose (including, without limitation, the payment of the principal of, or premium, if any, or
interest on, any Security) the Trustee shall not have received, with respect to such monies, the
notice provided for in this Section 17.05, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received and shall not be affected by any notice
to the contrary which may be received by it on or after such prior date. Notwithstanding anything
in this Article to the contrary, nothing shall prevent any payment by the Trustee to the Holders of
monies deposited with it pursuant to Article Four, and any such payment shall not be subject to the
provisions of this Article.




     The Trustee shall be entitled to rely on the delivery to it of a written notice by a
Representative or a person representing himself to be a holder of Senior Indebtedness (or a trustee
on behalf of such holder) to establish that such notice has been given by a Representative or a
holder of Senior Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with respect to the
right of any person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article, and if such evidence
is not furnished the Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.



     SECTION 17.06 TRUSTEE’S RELATION TO SENIOR INDEBTEDNESS.



     The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article in respect of any Senior Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.



     With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness, and, except with respect to its express obligations
under this Article, the Trustee shall not be liable to any holder of Senior Indebtedness if it
shall pay over or deliver to Holders of Securities, the Company or any other person money or assets
to which any holder of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.




81












 





     SECTION 17.07 NO IMPAIRMENT OF SUBORDINATION.



     No right of any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith, by any such holder
or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise be charged with.



     SECTION 17.08 CERTAIN CONVERSIONS DEEMED PAYMENT.



     For the purposes of this Article only, (1) the issuance and delivery of junior securities upon
conversion of Securities in accordance herewith shall not be deemed to constitute a payment or
distribution on account of the principal of, or premium, if any, the cash portion of the conversion
obligation, if any, or interest on, Securities or on account of the purchase or other acquisition
of Securities, and (2) the payment, issuance or delivery of cash (except in satisfaction of
fractional shares), property or securities (other than junior securities) upon conversion of a
Security shall be deemed to constitute payment on account of the principal of such Security. For
the purposes of this Section 17.08, the term “junior securities” means (a) shares of any Capital
Stock of any class of the Company or (b) securities of the Company which are subordinated in right
of payment to all Senior Indebtedness which may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders, any right of the Holder of any
Security to convert such Security in accordance herewith, which shall be absolute and
unconditional.



     SECTION 17.09 ARTICLE APPLICABLE TO PAYING AGENTS.



     If at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall (unless the
context otherwise requires) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that the first paragraph of Section
17.05 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.



     SECTION 17.10 SENIOR INDEBTEDNESS ENTITLED TO RELY.



     The holders of Senior Indebtedness (including, without limitation, Designated Senior
Indebtedness) shall have the right to rely upon this Article, and no amendment or modification of
the provisions contained herein shall diminish the rights of such holders unless such holders shall
have agreed in writing thereto.



     SECTION 17.11 ANTI-LAYERING.



     The Company shall not incur, directly or indirectly, or otherwise become liable for any
Indebtedness which is subordinated or junior in right or payment to any Senior Indebtedness unless
such Indebtedness is Senior Subordinated Indebtedness or is Subordinated Indebtedness, provided;
however, that nothing in this Section 17.11 shall limit the Company’s ability to incur Senior
Indebtedness.



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     The Trustee has no fiduciary duty to the holders of Senior Indebtedness other than as created
under this Indenture. The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee.



     The Company’s obligation to pay, and the Company’s payment of, the Trustee’s fees pursuant to
Section 6.06 are excluded from the operation of this Article Seventeen.



* * * * *




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



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



	 	 	 	 	 
	 	NXSTAGE MEDICAL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF TRUSTEE]



as Trustee

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 	Attest:


Title:

 	 
	 	 	 
	 	 	 
	 	 	 
	 








 









 








EXHIBIT A




FORMS OF CERTIFICATION



 









 





EXHIBIT A-1




FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED

TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST

PAYABLE PRIOR TO THE EXCHANGE DATE



CERTIFICATE


[Insert title or sufficient description of Securities to be delivered]



To: [     ] [     ]



From: [Beneficial Holder]





     This is to certify that, as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States federal income taxation regardless
of its source (“United States person(s)”), (ii) are owned by United States person(s) that are (a)
foreign branches of United States financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as “financial
institutions”) purchasing for their own account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States financial institutions and who
hold the Securities through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise NxStage Medical, Inc. (the “Company”) or its agent
that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in clause (i) or (ii)),
this is to further certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a person within the
United States or its possessions.



     As used herein, “United States” means the United States of America (including the States and
the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.



     We undertake to advise you promptly by tested telex on or prior to the date on which you
intend to submit your certification relating to the above-captioned Securities held by you for our
account in accordance with your operating procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.



     This certificate excepts and does not relate to [U.S.$] __________ of such interest in the
above-captioned Securities in respect of which we are not able to certify and as to which we



 









 




understand an exchange for an interest in a permanent global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made
until we do so certify.




     We understand that this certificate may be required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.



     This certificate may be relied upon by you and each of the Company, [Name of Trustee], as
trustee under the Indenture dated as of __________ ___, 20___ between [Name of Trustee], as
trustee, and the Company (the “Indenture”) and any Paying Agent (as defined in the Indenture).



     Dated: __________ ___, 20___



     [To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the Exchange Date, as applicable]



	 	 	 	 	 
	 	[Name of Person Making



Certification]





(Authorized Signator)



Name:



Title:

 	 
	 	 	 
	 	 	 
	 	 	 
	 




 









 





EXHIBIT A-2




FORM OF CERTIFICATE TO BE GIVEN BY [        ] AND [        ] IN

CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY

GLOBAL SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE

EXCHANGE DATE



CERTIFICATE


[Insert title or sufficient description of Securities to be delivered]



To: [Name of Trustee], as trustee (the “Trustee”) under the Indenture dated as of __________ ___,
20__ by and between the Company (as defined below) and the Trustee.



From: [        ] [        ]




     This is to certify that, based solely on written certifications that we have received in
writing, by tested telex or by electronic transmission from each of the persons appearing in our
records as persons entitled to a portion of the principal amount set forth below (our “Member
Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.$] principal
amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States Federal income taxation regardless of its source
(“United States person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches
of United States financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof (and in either case
(a) or (b), each such financial institution has agreed, on its own behalf or through its agent,
that we may advise NxStage Medical, Inc. (the “Company”) or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii) above (whether or not also described
in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within the United States or
its possessions.



     As used herein, “United States” means the United States of America (including the States and
the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.



     We further certify that (i) we are not making available herewith for exchange (or, if
relevant, collection of any interest) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of Member



 









 





     Organizations and (ii) as of the date hereof we have not received any notification from any of
our Member Organizations to the effect that the statements made by such Member Organizations with
respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of
any interest) are no longer true and cannot be relied upon as of the date hereof.



     We understand that this certification is required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.



     This certificate may be relied upon by you and by the Company. Dated: __________, 20__



     [To be dated no earlier than the Exchange Date or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]



     [               ,] as Operator of the
[                    ] [                                        ]



	 	 	 	 	 
	 	 	 
	 	By: