Exhibit 4.2




 





 


[Form of
Senior Indenture]


 


BPZ Resources, Inc.,


as Issuer


 


and


 


any Subsidiary Guarantors named herein,


as Subsidiary Guarantors


 


to


 


                    ,


as Trustee




 





 


SENIOR INDENTURE


 


Dated as of
            , 20




 





 

















 


TABLE
OF CONTENTS


 


	
   

  	
  PAGE

  
	
  PARTIES

  	
  1

  
	
  RECITALS OF THE COMPANY
  AND THE SUBSIDIARY GUARANTORS

  	
  1

  
	
   

  	
   

  
	
      ARTICLE ONE
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  
	
  SECTION 101.
  Definitions.

  	
  1

  
	
  Act

  	
  2

  
	
  Affiliate

  	
  2

  
	
  Authenticating
  Agent

  	
  2

  
	
  Board
  of Directors

  	
  2

  
	
  Board
  Resolution

  	
  2

  
	
  Business
  Day

  	
  2

  
	
  Capital
  Stock

  	
  2

  
	
  Commission

  	
  2

  
	
  Common
  Stock

  	
  2

  
	
  Company

  	
  3

  
	
  Company
  Request

  	
  3

  
	
  Company
  Order

  	
  3

  
	
  Conversion
  Agent

  	
  3

  
	
  Corporate
  Trust Office

  	
  3

  
	
  corporation

  	
  3

  
	
  Covenant
  Defeasance

  	
  3

  
	
  Defaulted
  Interest

  	
  3

  
	
  Defeasance

  	
  3

  
	
  Depositary

  	
  3

  
	
  Event
  of Default

  	
  3

  
	
  Exchange
  Act

  	
  3

  
	
  Expiration
  Date

  	
  3

  
	
  Global
  Security

  	
  3

  
	
  Holder

  	
  3

  
	
  Indenture

  	
  3

  
	
  interest

  	
  3

  
	
  Interest
  Payment Date

  	
  4

  
	
  Investment
  Company Act

  	
  4

  
	
  Maturity

  	
  4

  
	
  Notice
  of Default

  	
  4

  
	
  Officers’
  Certificate

  	
  4

  
	
  Opinion
  of Counsel

  	
  4

  
	
  Original
  Issue Discount Security

  	
  4

  
	
  Outstanding

  	
  4

  
	
  Paying
  Agent

  	
  5

  
	
  Person

  	
  5

  
	
  Place
  of Payment

  	
  5

  



 


i

















 


	
  Predecessor Security

  	
  5

  
	
  Redemption Date

  	
  5

  
	
  Redemption Price

  	
  5

  
	
  Regular Record Date

  	
  5

  
	
  Securities

  	
  6

  
	
  Securities Act

  	
  6

  
	
  Security Register

  	
  6

  
	
  Security Registrar

  	
  6

  
	
  Significant Subsidiary

  	
  6

  
	
  Special Record Date

  	
  6

  
	
  Stated Maturity

  	
  6

  
	
  Subsidiary

  	
  6

  
	
  Subsidiary Guarantees

  	
  6

  
	
  Subsidiary Guarantors

  	
  6

  
	
  Trust Indenture Act

  	
  6

  
	
  Trustee

  	
  6

  
	
  U.S. Government Obligation

  	
  7

  
	
  Vice President

  	
  7

  
	
  Voting Stock

  	
  7

  
	
  Wholly Owned Subsidiary

  	
  7

  
	
   

  	
   

  
	
  SECTION 102.

  	
  Compliance Certificates
  And Opinions.

  	
  7

  
	
  SECTION 103.

  	
  Form of Documents
  Delivered to Trustee.

  	
  7

  
	
  SECTION 104.

  	
  Acts of Holders; Record
  Dates.

  	
  8

  
	
  SECTION 105.

  	
  Notices, Etc., to
  Trustee and Company.

  	
  10

  
	
  SECTION 106.

  	
  Notice to Holders; Waiver.

  	
  10

  
	
  SECTION 107.

  	
  Conflict with Trust
  Indenture Act.

  	
  11

  
	
  SECTION 108.

  	
  Effect of Headings and
  Table of Contents.

  	
  11

  
	
  SECTION 109.

  	
  Successors and Assigns.

  	
  11

  
	
  SECTION 110.

  	
  Separability Clause.

  	
  11

  
	
  SECTION 111.

  	
  Benefits of Indenture.

  	
  11

  
	
  SECTION 112.

  	
  Governing Law.

  	
  11

  
	
  SECTION 113.

  	
  Legal Holidays.

  	
  11

  
	
  SECTION 114

  	
  No Recourse Against Others

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO
  SECURITY FORMS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 201.

  	
  Forms Generally.

  	
  12

  
	
  SECTION 202.

  	
  Form of Face of
  Security.

  	
  12

  
	
  SECTION 203.

  	
  Form of Reverse of
  Security.

  	
  14

  
	
  SECTION 204.

  	
  Form of Notation of
  Subsidiary Guarantee.

  	
  17

  
	
  SECTION 205.

  	
  Form of Legend for
  Global Securities.

  	
  18

  
	
  SECTION 206.

  	
  Form of Trustee’s
  Certificate of Authentication.

  	
  18

  
	
  SECTION 207.

  	
  Form of Conversion
  Notice.

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE
  THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 301.

  	
  Amount Unlimited; Issuable
  in Series.

  	
  19

  
	
  SECTION 302.

  	
  Denominations.

  	
  22

  



 


ii

















 


	
  SECTION 303.

  	
  Execution, Authentication,
  Delivery and Dating.

  	
  22

  
	
  SECTION 304.

  	
  Temporary Securities.

  	
  23

  
	
  SECTION 305.

  	
  Registration, Registration
  of Transfer and Exchange.

  	
  24

  
	
  SECTION 306.

  	
  Mutilated, Destroyed, Lost
  and Stolen Securities.

  	
  25

  
	
  SECTION 307.

  	
  Payment of Interest;
  Interest Rights Preserved.

  	
  26

  
	
  SECTION 308.

  	
  Persons Deemed Owners.

  	
  27

  
	
  SECTION 309.

  	
  Cancellation.

  	
  27

  
	
  SECTION 310.

  	
  Computation of Interest.

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 401.

  	
  Satisfaction and Discharge
  of Indenture.

  	
  28

  
	
  SECTION 402.

  	
  Application of Trust
  Money.

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 501.

  	
  Events of Default.

  	
  29

  
	
  SECTION 502.

  	
  Acceleration of Maturity;
  Rescission and Annulment.

  	
  30

  
	
  SECTION 503.

  	
  Collection of Indebtedness
  and Suits for Enforcement by Trustee.

  	
  31

  
	
  SECTION 504.

  	
  Trustee May File
  Proofs of Claim.

  	
  32

  
	
  SECTION 505.

  	
  Trustee May Enforce
  Claims Without Possession of Securities.

  	
  32

  
	
  SECTION 506.

  	
  Application of Money
  Collected.

  	
  32

  
	
  SECTION 507.

  	
  Limitation on Suits.

  	
  33

  
	
  SECTION 508.

  	
  Unconditional Right of
  Holders to Receive Principal, Premium and Interest.

  	
  33

  
	
  SECTION 509.

  	
  Restoration of Rights and
  Remedies.

  	
  34

  
	
  SECTION 510.

  	
  Rights and Remedies
  Cumulative.

  	
  34

  
	
  SECTION 511.

  	
  Delay or Omission Not
  Waiver.

  	
  34

  
	
  SECTION 512.

  	
  Control by Holders.

  	
  34

  
	
  SECTION 513.

  	
  Waiver of Past Defaults.

  	
  34

  
	
  SECTION 514.

  	
  Undertaking for Costs.

  	
  35

  
	
  SECTION 515.

  	
  Waiver of Usury, Stay or
  Extension Laws.

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX
  THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 601.

  	
  Certain Duties and
  Responsibilities.

  	
  35

  
	
  SECTION 602.

  	
  Notice of Defaults.

  	
  35

  
	
  SECTION 603.

  	
  Certain Rights of Trustee.

  	
  36

  
	
  SECTION 604.

  	
  Not Responsible for
  Recitals or Issuance of Securities.

  	
  36

  
	
  SECTION 605.

  	
  May Hold Securities.

  	
  37

  
	
  SECTION 606.

  	
  Money Held in Trust.

  	
  37

  
	
  SECTION 607.

  	
  Compensation and
  Reimbursement.

  	
  37

  
	
  SECTION 608.

  	
  Conflicting Interests.

  	
  37

  
	
  SECTION 609.

  	
  Corporate Trustee Required;
  Eligibility.

  	
  38

  
	
  SECTION 610.

  	
  Resignation and Removal;
  Appointment of Successor.

  	
  38

  
	
  SECTION 611.

  	
  Acceptance of Appointment
  by Successor.

  	
  39

  
	
  SECTION 612.

  	
  Merger, Conversion,
  Consolidation or Succession to Business.

  	
  40

  



 


iii

















 


	
  SECTION 613.

  	
  Preferential Collection of
  Claims Against Company and Subsidiary Guarantors.

  	
  40

  
	
  SECTION 614.

  	
  Appointment of
  Authenticating Agent.

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN
  HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 701.

  	
  Company to Furnish Trustee
  Names and Addresses of Holders.

  	
  42

  
	
  SECTION 702.

  	
  Preservation of
  Information; Communications to Holders.

  	
  42

  
	
  SECTION 703.

  	
  Reports by Trustee.

  	
  43

  
	
  SECTION 704.

  	
  Reports by Company and
  Subsidiary Guarantors.

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 801.

  	
  Company
  May Consolidate, Etc., Only on Certain Terms.

  	
  43

  
	
  SECTION 802.

  	
  Subsidiary Guarantors
  May Consolidate, Etc., Only on Certain Terms.

  	
  44

  
	
  SECTION 803.

  	
  Successor Substituted.

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 901.

  	
  Supplemental Indentures
  Without Consent of Holders.

  	
  45

  
	
  SECTION 902.

  	
  Supplemental Indentures
  With Consent of Holders.

  	
  46

  
	
  SECTION 903.

  	
  Execution of Supplemental
  Indentures.

  	
  47

  
	
  SECTION 904.

  	
  Effect of Supplemental
  Indentures.

  	
  47

  
	
  SECTION 905.

  	
  Conformity with Trust
  Indenture Act.

  	
  47

  
	
  SECTION 906.

  	
  Reference in Securities to
  Supplemental Indentures.

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1001.

  	
  Payment of Principal,
  Premium and Interest.

  	
  48

  
	
  SECTION 1002.

  	
  Maintenance of Office or
  Agency.

  	
  48

  
	
  SECTION 1003.

  	
  Money for Securities
  Payments to Be Held in Trust.

  	
  48

  
	
  SECTION 1004.

  	
  Statement by Officers as
  to Default.

  	
  49

  
	
  SECTION 1005.

  	
  Existence.

  	
  50

  
	
  SECTION 1006.

  	
  Maintenance of Properties.

  	
  50

  
	
  SECTION 1007.

  	
  Payment of Taxes and Other
  Claims.

  	
  50

  
	
  SECTION 1008.

  	
  Maintenance of Insurance.

  	
  50

  
	
  SECTION 1009.

  	
  Waiver of Certain
  Covenants.

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN
  REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1101.

  	
  Applicability of Article.

  	
  51

  
	
  SECTION 1102.

  	
  Election to Redeem; Notice
  to Trustee.

  	
  51

  
	
  SECTION 1103.

  	
  Selection by Trustee of
  Securities to Be Redeemed.

  	
  51

  
	
  SECTION 1104.

  	
  Notice of Redemption.

  	
  52

  
	
  SECTION 1105.

  	
  Deposit of Redemption
  Price.

  	
  53

  
	
  SECTION 1106.

  	
  Securities Payable on
  Redemption Date.

  	
  53

  
	
  SECTION 1107.

  	
  Securities Redeemed in
  Part.

  	
  53

  



 


iv

















 


	
  ARTICLE TWELVE
  [INTENTIONALLY OMITTED]

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN
  SUBSIDIARY GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1301.

  	
  Applicability of Article.

  	
  54

  
	
  SECTION 1302.

  	
  Subsidiary Guarantees.

  	
  54

  
	
  SECTION 1303.

  	
  Execution and Delivery of
  Notations of Subsidiary Guarantees.

  	
  56

  
	
  SECTION 1304.

  	
  Release of Subsidiary
  Guarantors.

  	
  56

  
	
  SECTION 1305.

  	
  Additional Subsidiary
  Guarantors.

  	
  56

  
	
  SECTION 1306.

  	
  Limitation on Liability.

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOURTEEN
  [INTENTIONALLY OMITTED]

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIFTEEN
  DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1501.

  	
  Company’s Option to Effect
  Defeasance or Covenant Defeasance.

  	
  57

  
	
  SECTION 1502.

  	
  Defeasance and Discharge.

  	
  57

  
	
  SECTION 1503.

  	
  Covenant Defeasance.

  	
  58

  
	
  SECTION 1504.

  	
  Conditions to Defeasance
  or Covenant Defeasance.

  	
  58

  
	
  SECTION 1505.

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

  	
  60

  
	
  SECTION 1506.

  	
  Reinstatement.

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIXTEEN
  SINKING FUNDS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1601.

  	
  Applicability of Article.

  	
  61

  
	
  SECTION 1602.

  	
  Satisfaction of Sinking
  Fund Payments with Securities.

  	
  61

  
	
  SECTION 1603.

  	
  Redemption of Securities
  for Sinking Fund.

  	
  61

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
  63

  
	
  SCHEDULE I

  	
   

  	
  I-1

  



 


v






 


 












 


BPZ
RESOURCES, INC.


CERTAIN
SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318, 


INCLUSIVE,
OF THE TRUST INDENTURE ACT OF 1939:


 


	
  TRUST INDENTURE ACT SECTION

  	
   

  	
  INDENTURE SECTION

  
	
  Section 310(a)(1)

  	
   

  	
  609

  
	
  (a)(2)

  	
   

  	
  609

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  608

  
	
   

  	
   

  	
  610

  
	
  Section 311(a)

  	
   

  	
  613

  
	
  (b)

  	
   

  	
  613

  
	
  Section 312(a)

  	
   

  	
  701

  
	
   

  	
   

  	
  702

  
	
  (b)

  	
   

  	
  702

  
	
  (c)

  	
   

  	
  702

  
	
  Section 313(a)

  	
   

  	
  703

  
	
  (b)

  	
   

  	
  703

  
	
  (c)

  	
   

  	
  703

  
	
  (d)

  	
   

  	
  703

  
	
  Section 314(a)

  	
   

  	
  704

  
	
  (a)(4)

  	
   

  	
  101

  
	
   

  	
   

  	
  1004

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
  102

  
	
  (c)(2)

  	
   

  	
  102

  
	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
  102

  
	
  Section 315(a)

  	
   

  	
  601

  
	
  (b)

  	
   

  	
  602

  
	
  (c)

  	
   

  	
  601

  
	
  (d)

  	
   

  	
  601

  
	
  (e)

  	
   

  	
  514

  
	
  Section 316(a)

  	
   

  	
  101

  
	
  (a)(1)(A)

  	
   

  	
  502

  
	
   

  	
   

  	
  512

  
	
  (a)(1)(B)

  	
   

  	
  513

  
	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  508

  
	
  (c)

  	
   

  	
  104

  
	
  Section 317(a)(1)

  	
   

  	
  503

  
	
  (a)(2)

  	
   

  	
  504

  
	
  (b)

  	
   

  	
  1003

  
	
  Section 318(a)

  	
   

  	
  107

  



 


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


 


vi

















 


INDENTURE, dated as of
                        ,
20    , among BPZ Resources, Inc., a corporation duly
organized and existing under the laws of the State of Texas (herein called the “Company”),
having its principal office at 580 Westlake Park Boulevard, Suite 525,
Houston, Texas 77079, each of the Subsidiary Guarantors (as hereinafter
defined) parties hereto and [TRUSTEE’S NAME], a banking corporation duly
organized and existing under the laws of the State of                 ,
as Trustee (herein called the “Trustee”).


 


RECITALS
OF THE COMPANY AND THE SUBSIDIARY GUARANTORS


 


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


 


The Company and the
Subsidiary Guarantors are members of the same consolidated group of companies.
The Subsidiary Guarantors will derive direct and indirect economic benefit from
the issuance of the Securities. Accordingly, each Subsidiary Guarantor has duly
authorized the execution and delivery of this Indenture to provide for its
full, unconditional and joint and several guarantee of the Securities to the
extent provided in or pursuant this Indenture.


 


All things necessary to make
this Indenture a valid agreement of the Company, 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 agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:


 


ARTICLE ONE


 


DEFINITIONS
AND OTHER PROVISIONS


OF
GENERAL APPLICATION


 


SECTION 101. Definitions.


 


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


 


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


 


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


 


(3) all accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and, except as
otherwise herein 


 


1

















 


expressly provided, the term
“generally accepted accounting principles” with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of this instrument;


 


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


 


(5) the words “herein”,
“hereof”, “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 104.


 


“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; provided that
direct or indirect beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to control.


 


“Authenticating
Agent” means any Person authorized by the Trustee pursuant to Section 614
to act on behalf of the Trustee to authenticate Securities of one or more
series.


 


“Board of
Directors” means, with respect to the Company, either the board of
directors of the Company or any committee of that board duly authorized to act
for it in respect hereof, and with respect to any Subsidiary Guarantor, either
the board of directors of such Subsidiary Guarantor or any committee of that
board duly authorized to act for it in respect hereof.


 


“Board
Resolution” means, with respect to the Company or a Subsidiary
Guarantor, a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or such Subsidiary Guarantor, as the case may be, to
have been duly adopted by its Board of Directors 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, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to close.


 


“Capital
Stock” of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general
or limited, of such Person.


 


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


 


“Common Stock”
means the common stock, no par value, of the Company as the same exists at the
date of execution and delivery of this Indenture or other Capital Stock of the
Company into which such common stock is converted, reclassified or changed from
time to time.


 


2

















 


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


 


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


 


“Conversion
Agent” means any Person authorized by the Company to convert any
Securities on behalf of the Company.


 


“Corporate
Trust Office” means the principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, such
office being located on the date hereof at [TRUSTEE’S ADDRESS].


 


“corporation”
means a corporation, association, limited liability company, joint-stock
company or business trust.


 


“Covenant
Defeasance” has the meaning specified in Section 1503.


 


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


 


“Defeasance”
has the meaning specified in Section 1502.


 


“Depositary”
means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities as
contemplated by Section 301.


 


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


 


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


 


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


 


“Global
Security” means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 205 (or
such legend as may be specified as contemplated by Section 301 for such
Securities).


 


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


 


“Indenture”
means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively. The term “Indenture” shall
also include the terms of particular series of Securities established as
contemplated by Section 301.


 


“interest”,
when used with respect to an Original Issue Discount Security which by its 


 


3

















 


terms bears interest only
after Maturity, means interest payable after Maturity.


 


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


 


“Investment
Company Act” means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.


 


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


 


“Notice of
Default” means a written notice of the kind specified in
Section 501(4).


 


“Officers’
Certificate” means a certificate signed by the Chairman of the Board
of Directors, a Vice Chairman of the Board of Directors, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company or a Subsidiary Guarantor, as the case
may be, and delivered to the Trustee. One of the officers signing an Officers’
Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.


 


“Opinion of
Counsel” means, as to the Company or a Subsidiary Guarantor, a
written opinion of counsel, who may be counsel for the Company or such
Subsidiary Guarantor, as the case may be, and who shall be acceptable 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 502.


 


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


 


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


 


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


 


(3) Securities
as to which Defeasance has been effected pursuant to Section 1502; and


 


(4) Securities
which have been paid pursuant to Section 306 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; provided, however, that in determining whether
the Holders of the requisite principal amount of the Outstanding Securities
have given, 


 


4

















 


made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount
of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as contemplated
by Section 301, of the principal amount of such Security (or, in the case
of a Security described in clause (A) or (B) above, of the amount
determined as provided in such clause), and (D) Securities owned by the
Company, any Subsidiary Guarantor or any other obligor upon the Securities or
any Affiliate of the Company, any Subsidiary Guarantor or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, 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, a Subsidiary Guarantor or any other obligor
upon the Securities or any Affiliate of the Company, a Subsidiary Guarantor or
of such other obligor.


 


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


 


“Person”
means any individual, corporation, partnership, joint venture, trust,
unincorporated organization or government or any agency or political
subdivision thereof.


 


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


 


“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 306 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security.


 


“Redemption
Date,” when used with respect to any Security to be redeemed, 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.


 


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


 


5

















 


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


 


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


 


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


 


“Significant
Subsidiary” means, at any date of determination, any Subsidiary that
represents 10% or more of the Company’s consolidated total assets at the end of
the most recent fiscal quarter for which financial information is available or
10% or more of the Company’s consolidated net revenues or consolidated
operating income for the most recent four quarters for which financial
information is available.


 


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


 


“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 as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.


 


“Subsidiary”
of any Person means (1) a corporation more than 50% of the combined voting
power of the outstanding Voting Stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person
or by such Person and one or more Subsidiaries thereof or (2) any other
Person (other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof,
directly or indirectly, has at least a majority ownership and power to direct
the policies, management and affairs thereof.


 


“Subsidiary
Guarantees” means the guarantees of each Subsidiary Guarantor as
provided in Article Thirteen.


 


“Subsidiary
Guarantors” means (i) the subsidiaries listed in Schedule I
hereto; (ii) any successor of the foregoing; and (iii) each other
Subsidiary of the Company that becomes a Subsidiary Guarantor in accordance
with Section 1305 hereof, in each case (i), (ii) and (iii) until
such Subsidiary Guarantor ceases to be such in accordance with
Section 1304 hereof.


 


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


 


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


 


6

















 


“U.S.
Government Obligation” has the meaning specified in Section 1504.


 


“Vice
President” when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title “vice president”.


 


“Voting Stock”
of any Person means Capital Stock of such Person which ordinarily has voting
power for the election of directors (or persons performing similar functions)
of such Person, whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.


 


“Wholly Owned
Subsidiary” of any Person means a Subsidiary of such Person all of
the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares) shall at the time be owned by such Person or by one
or more Wholly Owned Subsidiaries of such Person or by such Person and one or
more Wholly Owned Subsidiaries of such Person.


 


SECTION 102. Compliance Certificates and Opinions.


 


Upon any application or
request by the Company or any Subsidiary Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company and/or such
Subsidiary Guarantor, as appropriate, shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers’
Certificate, if to be given by an officer of the Company or a Subsidiary
Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.


 


Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this
Indenture shall include:


 


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


 


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


 


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


 


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


 


SECTION 103. Form of Documents Delivered to Trustee.


 


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


 


Any certificate or opinion
of an officer of the Company or a Subsidiary Guarantor may be 


 


7

















 


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


 


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


 


SECTION 104. Acts of Holders; Record Dates.


 


Whenever in this Indenture
it is provided that the Holders of a specified percentage in aggregate
principal amount of the Securities of any or all series may take action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Holders in person or by agent or proxy
appointed in writing, (b) by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in accordance with
procedures approved by the Trustee, (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders or
(d) in the case of Securities evidenced by a Global Security, by any
electronic transmission or other message, whether or not in written format,
that complies with the Depositary’s applicable procedures. Such evidence (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the relevant Holders. Proof of execution of any
such instrument or of a writing appointing any such agent or proxy shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.


 


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


 


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


 


Any request, demand,
authorization, direction, notice, consent, waiver or other Act of the Holder of
any Security shall bind every future Holder of the same Security and the Holder
of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the 


 


8

















 


Company in reliance thereon,
whether or not notation of such action is made upon such Security.


 


The Company may set any day
as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities
of such series, provided that the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.


 


The Trustee may set any day
as a record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to join in the giving or making of
(i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction
referred to in Section 512, in each case with respect to Securities of
such series. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the Company’s expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in
Section 106.


 


With respect to any record
date set pursuant to this Section, the party hereto which sets such record dates
may designate any day as the “Expiration Date” and from time to time may change


 


9






 


 












 


the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto
in writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 106, on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing,
no Expiration Date shall be later than the 180th day after the applicable
record date.


 


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


 


SECTION 105. Notices, Etc., to Trustee 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 or any Subsidiary Guarantor shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing in the
English language to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department; or


 


(2) the Company or any
Subsidiary Guarantor by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing in the English language and mailed, first-class postage prepaid, in the
case of the Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company and, in the case of any
Subsidiary Guarantor, to it at the address of the Company’s principal office
specified in the first paragraph of this instrument, Attention: Chief Financial
Officer, or at any other address previously furnished in writing to the Trustee
by such Subsidiary Guarantor.


 


SECTION 106. Notice to Holders; Waiver.


 


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


 


10

















 


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


 


SECTION 107. Conflict with Trust Indenture Act.


 


If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act which
is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.


 


SECTION 108. Effect of Headings And Table of Contents.


 


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


 


SECTION 109. Successors and Assigns.


 


All covenants and agreements
in this Indenture by the Company and any Subsidiary Guarantor shall bind its
successors and assigns, whether so expressed or not.


 


SECTION 110. Separability Clause.


 


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


 


SECTION 111. Benefits of Indenture.


 


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


 


SECTION 112. Governing Law.


 


This Indenture, the
Securities and the Subsidiary Guarantees shall be governed by and construed in
accordance with the law of the State of New York.


 


SECTION 113. Legal Holidays.


 


In any case where any
Interest Payment Date, Redemption Date, purchase date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest 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 or purchase date, or at the Stated Maturity.


 


11

















 


SECTION 114.
No Recourse Against Others.


 


The
directors, officers, employees and stockholders of the Company and, if
applicable, the Subsidiary Guarantors, as such, shall have no liability for any
obligations of the Company or any Subsidiary Guarantor under the Securities,
any Subsidiary Guarantees of this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. By accepting a
Security, each Holder shall be deemed to have waived and released all such
liability. The waiver and release shall be a part of the consideration for the
issue of the Securities.


 


ARTICLE TWO


 


SECURITY
FORMS


 


SECTION 201. Forms Generally.


 


The Securities of each
series and, if applicable, the notations of Subsidiary Guarantees to be
endorsed thereon shall be in substantially the form set forth in this Article,
or in such other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be determined
by the officers executing such Securities or notations of Subsidiary
Guarantees, as the case may be, as evidenced by their execution thereof. If the
form of Securities of any series is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.


 


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


 


SECTION 202. Form of Face of Security.


 


[Insert any legend required
by the Internal Revenue Code and the regulations thereunder.]


 


BPZ
Resources, Inc.


 


	
  No.

  	
   

  	
  $

  



 


BPZ Resources, Inc., a
corporation duly organized and existing under the laws of Texas (herein called
the “Company,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to                         
, or registered assigns, the principal sum of                         
Dollars on                         
[if the Security is to bear interest prior to Maturity, insert — , and to
pay interest thereon from             
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on
             and             
in each year, commencing             
, at the rate of             
% per annum, until the principal hereof is paid or made available for payment,
provided


 


12

















 


that any principal and
premium, and any such installment of interest, which is overdue shall bear
interest at the rate of             
% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the             
or              (whether
or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].


 


[If the Security is not to
bear interest prior to Maturity, insert — The principal of this Security shall
not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the
overdue principal and any overdue premium shall bear interest at the rate of             
% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment. Interest on any overdue principal or premium shall be
payable on demand. Any such interest on overdue principal or premium which is
not paid on demand shall bear interest at the rate of             
% per annum (to the extent that the payment of such interest on interest shall
be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]


 


Payment of the principal of
(and premium, if any) and [if applicable, insert — any such] interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in                
, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.


 


Reference is hereby made to
the further provisions of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place.


 


Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.


 


IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed under its corporate
seal.


 


13

















 


	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BPZ Resources, Inc.

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


SECTION 203. Form of Reverse of Security.


 


This Security is one of a
duly authorized issue of securities of the Company (herein called the “Securities”),
issued and to be issued in one or more series under an Indenture, dated as of                         
, 20       (herein called the “Indenture”, which term shall
have the meaning assigned to it in such instrument), among the Company, the
Subsidiary Guarantors named therein and                             
, as Trustee (herein called the “Trustee”, which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Subsidiary Guarantors, the Trustee
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [if applicable, insert — , limited in
aggregate principal amount to $            
].


 


[If applicable, insert — The
Securities of this series are subject to redemption upon not less than 30 days’
notice by mail, [if applicable, insert — (1) on             
in any year commencing with the year         
and ending with the year          through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [if applicable, insert — on
or after                     
, 20     ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert — on or before                         
,              %,
and if redeemed] during the 12-month period beginning             
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption 

  Price

  	
   

  	
  Year

  	
   

  	
  Redemption 

  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a
Redemption Price equal to             
% of the principal amount, together in the case of any such redemption [if
applicable, insert — (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]


 


[If applicable, insert — The
Securities of this series are subject to redemption upon not less than 30 days’
notice by mail, (1) on
                    
in any year commencing with the year         
and ending with the year          through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time
[if applicable, insert — on or after                     ],
as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the


 


14

















 


sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning
                    
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price

  For Redemption

  Through Operation

  of the

  Sinking Fund

  	
   

  	
  Redemption Price For

  Redemption Otherwise

  Than Through Operation

  of the Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter at a
Redemption Price equal to             
% of the principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]


 


[If applicable, insert —
Notwithstanding the foregoing, the Company may not, prior to
                    ,
redeem any Securities of this series as contemplated by [if applicable, insert
— clause (2) of] the preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than             
% per annum.]


 


[If applicable, insert — The
sinking fund for this series provides for the redemption on
                    
in each year beginning with the year
                    
and ending with the year                     
of [if applicable, insert — not less than $            
 (“mandatory sinking fund”) and not more
than] $            
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [if
applicable, insert — mandatory] sinking fund payments may be credited against
subsequent [if applicable, insert — mandatory] sinking fund payments otherwise
required to be made [if applicable, insert — , in the inverse order in which
they become due].]


 


[If the Security is subject
to redemption of any kind, insert — In the event of redemption of this Security
in part only, a new Security or Securities of this series and of like tenor for
the unredeemed portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.]


 


[If the Security is subject
to conversion, insert — Subject to the provisions of the Indenture, each Holder
has the right to convert the principal amount of this Security into fully paid
and nonassessable shares of Common Stock of the Company at the initial
conversion price per share of Common Stock of $             
(or $             
in principal amount of Securities for each such share of Common Stock), or at the
adjusted conversion price then in effect, if adjustment has been made as
provided in the Indenture, upon surrender of the Security to the Conversion
Agent, together with a fully executed notice in substantially the form attached
hereto and, if required by the Indenture, an amount equal to accrued interest
payable on this Security.]


 


[If applicable, insert — As
provided in the Indenture and subject to certain limitations therein set forth,
the obligations of the Company under this Security are guaranteed pursuant to
the Indenture as indicated in the notation of Subsidiary Guarantees endorsed
hereon. The


 


15

















 


Indenture provides that a
Subsidiary Guarantor shall be released from its Subsidiary Guarantee upon compliance
with certain conditions.]


 


[If applicable, insert — The
Indenture contains provisions for Defeasance at any time of [the entire
indebtedness of this Security] [or] [certain restrictive covenants and Events
of Default with respect to this Security] [, in each case] upon compliance with
certain conditions set forth in the Indenture.]


 


[If the Security is not an
Original Issue Discount Security, insert — If an Event of Default with respect
to Securities of this series shall occur and be continuing, the principal of
the Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture.]


 


[If the Security is an
Original Issue Discount Security, insert — If an Event of Default with respect
to Securities of this series shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture. Such amount shall be
equal to — insert formula for determining the amount. Upon payment (i) of
the amount of principal so declared due and payable and (ii) of interest
on any overdue principal, premium and interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of the Company’s
obligations in respect of the payment of the principal of and premium and
interest, if any, on the Securities of this series shall terminate.]


 


The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights of the Holders of
the Securities of each series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.


 


As provided in and subject
to the provisions of the Indenture, the Holder of this Security shall not have
the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless
such Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than 25% in principal amount of the Securities of this
series at the time Outstanding shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default as Trustee and
offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted


 


16

















 


by the Holder of this
Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein [if
applicable, insert — or the right to convert this Security in accordance with
its terms].


 


No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed [if
applicable, insert — and to convert such Security in accordance with its terms].


 


As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this
Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.


 


The Securities of this
series are issuable only in registered form without coupons in denominations of
$             and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.


 


No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.


 


Prior to due presentment of
this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


 


All terms used in this
Security which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.


 


SECTION 204. Form of Notation of Subsidiary Guarantee.


 


NOTATION
OF SUBSIDIARY GUARANTEE


 


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


 


17

















 


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


 


 


	
   

  	
  [Insert Names of
  Subsidiary 

  Guarantors]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


SECTION 205. Form of Legend for Global Securities.


 


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


 


THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


SECTION 206. Form of Trustee’s Certificate of
Authentication.


 


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


 


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


 


	
   

  	
   

  	
  ,

  
	
   

  	
  As Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  	
   

  



 


SECTION 207. Form of Conversion Notice.


 


Each convertible Security
shall have attached thereto, or set forth on the reverse of the Security, a
notice of conversion in substantially the following form:


 


Conversion
Notice


 


To:
BPZ Resources, Inc.


 


The
undersigned owner of this Security hereby: (i) irrevocably exercises the
option to


 


18

















 


convert this Security, or
the portion hereof below designated, for shares of Common Stock of BPZ
Resources, Inc. in accordance with the terms of the Indenture referred to
in this Security and (ii) directs that such shares of Common Stock deliverable
upon the conversion, together with any check in payment for fractional shares
and any Security(ies) representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name
has been indicated below. If shares are to be delivered registered in the name
of a person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect thereto. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.


 


	
  Dated

  	
   

  	
   

  	
  Signature

  	
   

  



 


Fill
in for registration of shares if to be delivered, and of Securities if to be
issued, otherwise than to and in the name of the registered holder.


 


	
   

  	
   

  
	
  Social
  Security or other

  	
   

  
	
  Taxpayer
  Identification Number

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
  (Please print name and
  address)

  	
   

  
	
   

  	
   

  
	
  Principal amount to be
  converted: (if less than all)

  	
   

  
	
  $

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*

  	
   

  
	
   

  	
   

  



 






*  Participant in a recognized Signature Guarantee Medallion Program
(or other signature acceptable to the Trustee).


 


ARTICLE THREE


 


THE
SECURITIES


 


SECTION 301. Amount Unlimited; Issuable in Series.


 


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


 


The Securities may be issued
in one or more series. There shall be established in or pursuant to a Board
Resolution and, subject to Section 303, 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,


 


19
















 


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


 


(2) if
the Securities of the series will not have the benefit of the Subsidiary
Guarantees of the Subsidiary Guarantors;


 


(3) any
limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);


 


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


 


(5) the
date or dates on which the principal of any Securities of the series is
payable;


 


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


 


(7) the
place or places where the principal of and any premium and interest on any
Securities of the series shall be payable;


 


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


 


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


 


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


 


(11)
if the amount of principal of or any premium or interest on any Securities of
the series may be determined with reference to an index or pursuant to a
formula, the manner in which such amounts shall be determined;


 


(12)
if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or
interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition of “Outstanding”
in Section 101;


 


(13)
if the principal of or any premium or interest on any Securities of the series
is to be payable, at the election of the Company or the Holder thereof, in one
or more currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency units
in which the principal of or any premium or interest on 


 


20

















 


such Securities as to which
such election is made shall be payable, the periods within which and the terms
and conditions upon which such election is to be made and the amount so payable
(or the manner in which such amount shall be determined);


 


(14)
if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 502;


 


(15)
if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);


 


(16)
if applicable, that the Securities of the series, in whole or any specified
part, shall be defeasible pursuant to Section 1502 or Section 1503 or
both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;


 


(17)
if applicable, that any Securities of the series shall be issuable in whole or
in part in the form of one or more Global Securities and, in such case, the
respective Depositories for such Global Securities, the form of any legend or
legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 205 and any circumstances in addition to
or in lieu of those set forth in clause (2) of the last paragraph of Section 305
in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;


 


(18)
any addition to or change in the Events of Default which applies to any
Securities of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;


 


(19)
any addition to or change in the covenants set forth in Article Ten which
applies to Securities of the series;


 


(20)
whether the Securities of the series will be convertible into Common Stock (or
cash in lieu thereof) and, if so, the terms and conditions upon which such
conversion will be effected; and


 


(21)
any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(5)).


 


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


 


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


 


21

















 


the Officers’ Certificate
setting forth the terms of the series.


 


The Securities of each
series shall have the benefit of the Subsidiary Guarantees unless the Company
elects otherwise upon the establishment of a series pursuant to this
Section 301.


 


SECTION 302. Denominations.


 


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


 


SECTION 303. Execution, Authentication, Delivery and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chairman of the Board of Directors,
its Vice Chairman of the Board of Directors, its President or one of its Vice
Presidents. If its corporate seal is reproduced thereon, then it shall be
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.


 


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


 


At any time and from time to
time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company and, if applicable,
having endorsed thereon the notations of Subsidiary Guarantees executed as
provided in Section 1303 by the Subsidiary Guarantors to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or
more Board Resolutions as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating,


 


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


 


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


 


(3) that
such Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of
the Company, and, if applicable, the notations of Subsidiary Guarantees
endorsed thereon will constitute valid and legally binding obligations of the
Subsidiary Guarantors, enforceable in accordance with their terms, subject to 


 


22

















 


bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles.


 


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 or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.


 


Notwithstanding the
provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers’ Certificate otherwise required pursuant
to Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.


 


Each Security shall be dated
the date of its authentication.


 


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


 


SECTION 304. Temporary Securities.


 


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


 


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, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor one or more definitive Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount and, if applicable, having endorsed thereon the notations of
Subsidiary Guarantees executed by the Subsidiary Guarantors. Until so
exchanged, 


 


23

















 


the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.


 


SECTION 305. Registration, Registration of Transfer and
Exchange.


 


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


 


Upon surrender for
registration of transfer of any Security of a series at the office or agency of
the Company in a Place of Payment for that series, the Company shall execute,
if applicable the Subsidiary Guarantors shall execute the notations of
Subsidiary Guarantees endorsed thereon and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.


 


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


 


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


 


Every Security presented or
surrendered for registration of transfer or for exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or 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 304, 906,
1107 or otherwise not involving any transfer.


 


If the Securities of any
series (or of any series and specified tenor) are to be redeemed in part, the
Company shall not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and specified tenor,
as the case may be) during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 1103 and ending at the 


 


24

















 


close of business on the day
of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.


 


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


 


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


 


(2) Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged in
whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof unless
(A) such Depositary (i) has notified the Company that it is unwilling
or unable to continue as Depositary for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act, and in either
case the Company fails to appoint a successor Depositary within 90 days,
(B) there shall have occurred and be continuing an Event of Default with
respect to such Global Security and the Depositary shall have notified the
Trustee of its decision to exchange such Global Security for Securities in
certificated form or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this purpose
as contemplated by Section 301.


 


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


 


(4) Every
Security authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Security or any portion thereof, whether pursuant
to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.


 


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


 


If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, and, if applicable, the Subsidiary Guarantors
shall execute the notation of Subsidiary Guarantee endorsed thereon.


 


If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless from any loss that any of them may suffer if a Security
is replaced, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding,
and, if applicable, 


 


25

















 


the Subsidiary Guarantors
shall execute the notation of Subsidiary Guarantee endorsed thereon. .


 


In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable or is to be converted, the Company in its discretion may, instead of
issuing a new Security, pay or authorize the conversion of such Security
(without surrender thereof save in the case of a mutilated Security).


 


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


 


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


 


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


 


SECTION 307. Payment of Interest; Interest Rights Preserved.


 


Except as otherwise provided
as contemplated by Section 301 with respect to any series of Securities,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.


 


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


 


(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security of such series and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed 


 


26

















 


payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner
set forth in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).


 


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


 


Subject to the foregoing
provisions of this Section, 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 308. Persons Deemed Owners.


 


Prior to due presentment of
a Security for registration of transfer, the Company, the Subsidiary
Guarantors, the Trustee and any agent of the Company, the Subsidiary
Guarantors, or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment
of principal of and any premium and (subject to Section 307) any interest
on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, any Subsidiary Guarantor, the
Trustee nor any agent of the Company, any Subsidiary Guarantor, or the Trustee
shall be affected by notice to the contrary.


 


SECTION 309. Cancellation.


 


All Securities surrendered
for payment, redemption, purchase, 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 shall be promptly
cancelled 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 cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.


 


27

















 


SECTION 310. Computation of Interest.


 


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


 


ARTICLE FOUR


 


SATISFACTION
AND DISCHARGE


 


SECTION 401. Satisfaction and Discharge of Indenture.


 


This Indenture shall upon
Company Request cease to be of further effect with respect to the Securities of
any series, and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when


 


(1) either


 


(A) all
Securities of such series theretofore authenticated and delivered (other than
(i) Securities of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities 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 1003) have been delivered to the Trustee for cancellation; or


 


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


 


(i) have
become due and payable, or


 


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


 


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


 


and the Company or, if
applicable, a Subsidiary Guarantor, 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 money in an amount sufficient,
without consideration of any reinvestment of interest, to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;


 


(2) the
Company or a Subsidiary Guarantor has paid or caused to be paid all other sums
payable hereunder by the Company and the Subsidiary Guarantors with respect to
the Securities of such series; and


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 607, any surviving rights of conversion, the
obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been 


 


28

















 


deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.


 


SECTION 402. Application of Trust Money.


 


Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities 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 any premium and interest for whose
payment such money has been deposited with the Trustee.


 


ARTICLE FIVE


 


REMEDIES


 


SECTION 501. Events of Default.


 


“Event of Default”, wherever
used herein with respect to Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(1) default
in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days; or


 


(2) default
in the payment of the principal of or any premium on any Security of that
series at its Maturity; or


 


(3) default
in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or


 


(4) default
in the performance, or breach, of any covenant of the Company or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the
Securities of such series, any Subsidiary Guarantor in Article Eight of
this Indenture; or


 


(5) default in the
performance, or breach, of any covenant or warranty of the Company or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the
Securities of such series, any Subsidiary Guarantor in this Indenture (other
than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder; or


 


(6) the
entry by a court having jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company, any Significant Subsidiary or, if
the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the
Securities of such series, any Subsidiary Guarantor in an involuntary case or
proceeding under any applicable Federal or State


 


29
















 


bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company, any Significant Subsidiary or any such Subsidiary Guarantor a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company, any
Significant Subsidiary or any such Subsidiary Guarantor under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company, any
Significant Subsidiary or any such Subsidiary Guarantor or of any substantial
part of its or their property, or ordering the winding up or liquidation of its
or their affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or


 


(7) the
commencement by the Company, any Significant Subsidiary or, if the Subsidiary
Guarantors have issued Subsidiary Guarantees with respect to the Securities of
such series, any Subsidiary Guarantor of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it or them to the entry of a decree or order for
relief in respect of the Company, any Significant Subsidiary or any such
Subsidiary Guarantor in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it or them, or the filing by it or them of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it or them to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company, any Significant
Subsidiary or any such Subsidiary Guarantor or of any substantial part of its
or their property, or the making by it or them of an assignment for the benefit
of creditors, or the admission by it or them in writing of its or their inability
to pay its or their debts generally as they become due, or the taking of
corporate action by the Company, any Significant Subsidiary or any such
Subsidiary Guarantor in furtherance of any such action; or


 


(8) in the event the
Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the
Securities of such series, the Subsidiary Guarantee of any Subsidiary Guarantor
is held by a final non-appealable order or judgment of a court of competent
jurisdiction to be unenforceable or invalid or ceases for any reason to be in
full force and effect (other than in accordance with the terms of this
Indenture) or any Subsidiary Guarantor or any Person acting on behalf of any
Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantor’s obligations
under its Subsidiary Guarantee (other than by reason of a release of such
Subsidiary Guarantor from its Subsidiary Guarantee in accordance with the terms
of this Indenture); or


 


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


 


SECTION 502. Acceleration of Maturity; Rescission and Annulment.


 


If an Event of Default
(other than an Event of Default with respect to the Company specified in
Section 501(6) or 501(7)) with respect to Securities of any series at
the time Outstanding occurs and is continuing, then 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 amount of all
the Securities of that series (or, if any Securities of that series are
Original 


 


30

















 


Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified by
the terms thereof) to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default with respect to the Company
specified in Section 501(6) or 501 (7) with respect to
Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof) shall automatically,
and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.


 


At any time after such a
declaration of acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in 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 or, if applicable, any Subsidiary Guarantor has paid or deposited with
the Trustee a sum sufficient to pay


 


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


 


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


 


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


 


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


 


(2) all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which has become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.


 


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


 


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


 


The Company covenants that
if


 


(1) default
is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or


 


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


 


the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further amount as shall be 


 


31

















 


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 an Event of Default with
respect to Securities of any series occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem 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 504. Trustee May File Proofs of Claim.


 


In case of any judicial
proceeding relative to the Company, any Subsidiary Guarantor or any other
obligor upon the Securities, or the property or creditors of the Company, any
Subsidiary Guarantor or any other obligor upon the Securities, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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 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 it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.


 


No provision of this
Indenture shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or any
Subsidiary Guarantee or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors’ or other similar committee.


 


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


 


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


 


SECTION 506. Application of Money Collected.


 


Any money collected by the
Trustee pursuant to this Article 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 any premium or interest, upon
presentation of the Securities 


 


32

















 


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 under Section 607;


 


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


 


THIRD:
The balance, if any, to the Company or to such other Person as a court of
competent jurisdiction shall direct.


 


SECTION 507. Limitation on Suits.


 


No Holder of any Security of
any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
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 reasonable security or indemnity
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
security or 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 of such Holders.


 


SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.


 


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


 


33

















 


SECTION 509. Restoration of Rights and Remedies.


 


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


 


SECTION 510. Rights and Remedies Cumulative.


 


Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law 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 511. Delay or Omission Not Waiver.


 


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


 


SECTION 512. Control by Holders.


 


The Holders of 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, and


 


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


 


SECTION 513. 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 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 any premium or interest on any Security of
such series (including any Security which is required to have been purchased by
the Company pursuant to an offer to purchase by the Company made pursuant to
the terms of this Indenture), or


 


34

















 


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


 


Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.


 


SECTION 514. Undertaking for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided,
however, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or any Subsidiary Guarantor.


 


SECTION 515. Waiver of Usury, Stay or Extension Laws.


 


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


 


ARTICLE SIX


 


THE
TRUSTEE


 


SECTION 601. Certain Duties and Responsibilities.


 


The duties and
responsibilities of the Trustee shall be as expressly set forth in this
Indenture and as provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.


 


SECTION 602. Notice of Defaults.


 


If a default occurs
hereunder with respect to Securities of any series, the Trustee shall give 


 


35

















 


the Holders of Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(5) with respect to Securities of
such series, no such notice to Holders shall be given until at least 30 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 Securities of such series.


 


SECTION 603. Certain Rights of Trustee.


 


Subject to the provisions of
Section 601:


 


(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, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;


 


(2) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the
Board of Directors shall 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 written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;


 


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


 


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


 


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


 


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


 


The recitals contained
herein and in the Securities and the notations of Subsidiary Guarantees, except
the Trustee’s certificates of authentication, shall be taken as the statements
of 


 


36

















 


the Company or the
Subsidiary Guarantors, as the case may be, 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 the Subsidiary Guarantees endorsed thereon.
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 605. May Hold Securities.


 


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


 


SECTION 606. 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 with the Company or
any Subsidiary Guarantor, as the case may be.


 


SECTION 607. Compensation and Reimbursement.


 


The Company and each
Subsidiary Guarantor jointly and severally agree


 


(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 the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the 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 the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.


 


SECTION 608. Conflicting Interests.


 


If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more than one
series.


 


37

















 


SECTION 609. Corporate Trustee Required; Eligibility.


 


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


 


SECTION 610. Resignation and Removal; Appointment of Successor.


 


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


 


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 the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.


 


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.


 


If at any time:


 


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


 


(2) the
Trustee shall cease to be eligible under Section 609 and shall fail to
resign after written request therefor by the Company or by any such Holder, 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,
(A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 514, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.


 


38

















 


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 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) and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.


 


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 to all Holders of Securities of such
series in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.


 


SECTION 611. Acceptance of Appointment by Successor.


 


In case of the appointment
hereunder of a successor Trustee with respect to all Securities, every such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Company, the Subsidiary Guarantors 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 the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.


 


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


 


39
















 


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 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.


 


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


 


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


 


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


 


Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person 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. As soon as practicable,
the successor Trustee shall mail a notice of its succession to the Company and
the Holders of the Securities then Outstanding. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.


 


SECTION 613. Preferential Collection of Claims Against Company
and Subsidiary Guarantors.


 


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


 


40

















 


SECTION 614. Appointment of Authenticating Agent.


 


The Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange,
registration of transfer, conversion or partial redemption thereof or pursuant
to Section 306, 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. 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 Person organized and
doing business under the laws of the United States of America, any State
thereof 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
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said 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. If 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 Person into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
Person succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such Person shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.


 


An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof 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 may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment in the manner provided in
Section 106 to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve. 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. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.


 


The Trustee agrees to pay to
each Authenticating Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be entitled to be 


 


41

















 


reimbursed for such
payments, subject to the provisions of Section 607.


 


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 the Trustee’s
certificate of authentication, an alternative certificate of authentication in
the following form:


 


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


 


 


	
   

  	
   

  	
  ,

  
	
   

  	
  As Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
  ,

  
	
   

  	
  As Authenticating Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
  ,

  
	
   

  	
  Authorized Officer

  	
   

  



 


ARTICLE SEVEN


 


HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


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


 


The Company will furnish or
cause to be furnished to the Trustee with respect to the Securities of each
series:


 


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


 


(2) 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;


 


excluding from any such list
names and addresses received by the Trustee in its capacity as Security
Registrar.


 


SECTION 702. Preservation of Information; Communications to
Holders.


 


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


 


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


 


Every Holder of Securities,
by receiving and holding the same, agrees with the Company and the Trustee that
neither the Company, the Subsidiary Guarantors nor the Trustee nor any agent of
any of them shall be held accountable by reason of any disclosure of
information as to 


 


42

















 


names and addresses of
Holders made pursuant to the Trust Indenture Act.


 


SECTION 703. Reports by Trustee.


 


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


 


A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee
with each stock exchange upon which any Securities are listed, with the
Commission and with the Company and with the Subsidiary Guarantors. The Company
will notify the Trustee when any Securities are listed on any stock exchange.


 


SECTION 704. Reports by Company and Subsidiary Guarantors.


 


The Company and each of the
Subsidiary Guarantors shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.


 


ARTICLE EIGHT


 


CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE


 


SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms.


 


The Company shall not, in a
single transaction or a series of related transactions, consolidate with or
merge into any other Person or permit any other Person to consolidate with or
merge into the Company or, directly or indirectly, transfer, convey, sell,
lease or otherwise dispose of all or substantially all of its assets, unless:


 


(1) in
a transaction in which the Company does not survive or in which the Company
transfers, conveys, sells, leases or otherwise disposes of all or substantially
all of its assets, the successor entity (for purposes of this Article Eight,
a “Successor Company”) shall be a corporation, partnership, trust or other
entity organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed;


 


(2) immediately
before and after giving pro forma effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, 


 


43

















 


would become an Event of
Default, shall have happened and be continuing;


 


(3) if,
as a result of any such consolidation or merger or such transfer, conveyance,
sale, lease or other disposition, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or the
Successor Company, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or
prior to) all indebtedness secured thereby;


 


(4) any
other conditions provided pursuant to Section 301 with respect to the
Securities of a series are satisfied; and


 


(5) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, conveyance,
sale, lease or other disposition and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.


 


SECTION 802. Subsidiary Guarantors May Consolidate, Etc.,
Only on Certain Terms.


 


Except in a transaction
resulting in the release of a Subsidiary Guarantor in accordance with the terms
of this Indenture or as otherwise specified in a supplemental indenture
establishing a series of Securities pursuant to Section 301, each
Subsidiary Guarantor shall not, and the Company shall not permit any Subsidiary
Guarantor to, in a single or a series of related transactions, consolidate or
merge with or into any Person (other than the Company or another Subsidiary
Guarantor) or permit any Person (other than another Subsidiary Guarantor) to
consolidate or merge with or into such Subsidiary Guarantor or, directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its assets unless, in each case:


 


(1) in
a transaction in which such Subsidiary Guarantor does not survive or in which
all or substantially all of the assets of such Subsidiary Guarantor are
transferred, conveyed, sold, leased or otherwise disposed of, the successor
entity (the “Successor Subsidiary Guarantor”) shall be a corporation,
partnership, trust or other entity organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia, and shall expressly assume by an indenture supplemental hereto
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of all obligations of such Subsidiary Guarantor under
its Subsidiary Guarantee and this Indenture and the performance of every
covenant of this Indenture on the part of such Subsidiary Guarantor to be
performed or observed; and


 


(2) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, conveyance,
sale, lease or other disposition and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, comply with
this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.


 


SECTION 803. Successor Substituted.


 


(a) Upon any
consolidation of the Company with, or merger of the Company into, any other Person
or any transfer, conveyance, sale, lease or other disposition of all or
substantially all of the assets of the Company in accordance with
Section 801, the Successor Company shall succeed 


 


44

















 


to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person shall
be relieved of all obligations and covenants under this Indenture and the
Securities.


 


(b) Upon any
consolidation of a Subsidiary Guarantor with, or merger of such Subsidiary
Guarantor into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the assets of such Subsidiary
Guarantor in accordance with Section 802, the Successor Subsidiary
Guarantor shall succeed to, and be substituted for, and may exercise every
right and power of, such Subsidiary Guarantor under this Indenture with the
same effect as if such successor Person had been named as a Subsidiary
Guarantor herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and its Subsidiary Guarantee.


 


ARTICLE NINE


 


SUPPLEMENTAL
INDENTURES


 


SECTION 901. Supplemental Indentures Without Consent of Holders.


 


Without the consent of any
Holders, the Company, when authorized by a Board Resolution, the Subsidiary Guarantors,
when authorized by their respective Board Resolutions, 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
evidence the succession of another Person to the Company or any Subsidiary
Guarantor and the assumption by any such successor of the covenants of the
Company or any Subsidiary Guarantor herein and in the Securities or Subsidiary
Guarantees, as the case may be; or


 


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


 


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


 


(4) to
add to or change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and with or without
interest coupons, or to permit or facilitate the issuance of Securities in uncertificated
form; or


 


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


 


45

















 


(6) to
secure the Securities; or


 


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


 


(8) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611; or


 


(9) to
cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or


 


(10) to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause
(10) shall not adversely affect the interests of the Holders of Securities
of any series in any material respect; or


 


(11)
to add new Subsidiary Guarantors.


 


SECTION 902. Supplemental Indentures With Consent of Holders.


 


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


 


(1) change
the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security or
any other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of (a) any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date or in the case of an offer to purchase Securities which has been made pursuant
to a covenant contained in this Indenture, on or after the applicable purchase
date) or (b) any conversion right with respect to any Security, or modify
the provisions of this Indenture with respect to the conversion of the
Securities, in a manner adverse to the Holders, or release any Subsidiary
Guarantee other than as provided in this Indenture; or


 


(2) reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this 


 


46

















 


Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture; or


 


(3) modify
any of the provisions of this Section, Section 513 or Section 1009,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant changes
in this Section and Section 1009, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8); or


 


(4) following
the making of an offer to purchase Securities from any Holder which has been
made pursuant to a covenant contained in this Indenture, modify the provisions
of this Indenture with respect to such offer to purchase in a manner adverse to
such Holder.


 


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


 


It 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.


 


SECTION 903. Execution of Supplemental Indentures.


 


In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.


 


SECTION 904. Effect of Supplemental Indentures.


 


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


 


SECTION 905. Conformity With Trust Indenture Act.


 


Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the
Trust Indenture Act.


 


SECTION 906. 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 


 


47

















 


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, if applicable the notations of
Subsidiary Guarantees may be endorsed thereon and such new Securities may be
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.


 


ARTICLE TEN


 


COVENANTS


 


SECTION 1001. Payment of Principal, Premium and Interest.


 


The Company covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay the principal of and any premium and interest on the Securities
of that series in accordance with the terms of the Securities and this
Indenture. Principal, premium, if any, and interest shall be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 11:00 A.M., New York City time, on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.


 


SECTION 1002. Maintenance of Office or Agency.


 


The Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or, if
applicable, for 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 or any Subsidiary Guarantor in respect of the Securities of
that series or any Subsidiary Guarantee and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company and each Subsidiary Guarantor hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.


 


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


 


SECTION 1003. Money for Securities Payments to be Held in Trust.


 


If the Company or any
Subsidiary Guarantor shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and 


 


48

















 


interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.


 


Whenever the Company shall
have one or more Paying Agents for any series of Securities, it will, prior to
11:00 A.M., New York City time, on each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.


 


The Company will cause each
Paying Agent for any series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of any
default by the Company, the Subsidiary Guarantors, if applicable, or any other
obligor upon the Securities of that series in the making of any payment in
respect of the Securities of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent
for payment in respect of the Securities of that series.


 


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


 


Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of or any premium or interest on any Security of any
series and remaining unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in The City of New York, New
York, 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 1004. Statement by Officers as to Default.


 


(a) The Company and the
Subsidiary Guarantors will deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company or any Subsidiary Guarantor, as the case may be, is in
default in the performance and observance of


 


49
















 


any of the terms, provisions
and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company or any Subsidiary
Guarantor shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.


 


(b) The Company and
each Subsidiary Guarantor shall deliver to the Trustee, as soon as possible and
in any event within five days after the Company or such Subsidiary Guarantor
becomes aware or should reasonably become aware of the occurrence of an Event
of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers’ Certificate setting forth the
details of such Event of Default or default, and the action which the Company
or such Subsidiary Guarantor proposes to take with respect thereto.


 


SECTION 1005. Existence.


 


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


 


SECTION 1006. Maintenance of Properties.


 


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


 


SECTION 1007. 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 taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Company or any Subsidiary; 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 whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.


 


SECTION 1008. Maintenance of Insurance.


 


The Company shall, and shall
cause its Subsidiaries to, keep at all times all of their properties which are
of an insurable nature insured against loss or damage with insurers believed by
the Company to be responsible to the extent that property of similar character
is usually so 


 


50

















 


insured by corporations
similarly situated and owning like properties in accordance with good business
practice.


 


SECTION 1009. Waiver of Certain Covenants.


 


Except as otherwise
specified as contemplated by Section 301 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth
in any of Sections 1005 through 1008 or in any covenant provided pursuant to
Section 301(21), 901(2) or 901(7) for the benefit of the Holders
of such series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision 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 ELEVEN


 


REDEMPTION
OF SECURITIES


 


SECTION 1101. Applicability of Article.


 


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


 


SECTION 1102. Election to Redeem; Notice to Trustee.


 


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


 


SECTION 1103. Selection by Trustee of Securities to be Redeemed.


 


If less than all the
Securities of any series are to be redeemed (unless all the Securities of such
series and of a specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, (i) in compliance with the requirements
of the principal national securities exchange on which such Securities are
listed, if such Securities are listed on any national securities exchange, and
(ii) if such Securities are not so listed, on a pro rata basis, by lot or
by such other method as the Trustee shall deem fair 


 


51

















 


and appropriate and which
may provide for the selection for redemption of a portion of the principal
amount of any Security of such series, provided that the unredeemed portion of
the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. If less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected by the
Trustee, from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.


 


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


 


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


 


For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed. If any Security
selected for partial redemption is surrendered for conversion after such
selection, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Upon any redemption of less
than all the Securities of a series, for purposes of selection for redemption
the Company and the Trustee may treat as Outstanding Securities surrendered for
conversion during the period of 15 days next preceding the mailing of a notice
of redemption, and need not treat as Outstanding any Security authenticated and
delivered during such period in exchange for the unconverted portion of any
Security converted in part during such period.


 


SECTION 1104. Notice of Redemption.


 


Notice of redemption shall
be given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register; provided, however,
notice of redemption may be given more than 60 days prior to the Redemption
Date if the notice is issued in connection with a satisfaction and discharge
pursuant to Article Four.


 


All notices of redemption
shall state:


 


(1) the
Redemption Date,


 


(2) the
Redemption Price, if then determinable and otherwise the method of its
determination,


 


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


 


52

















 


redeemed, the principal
amount of the particular Security to be redeemed,


 


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


 


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


 


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


 


(7) if
applicable, the conversion price then in effect and the date on which the right
to convert such Securities will expire.


 


Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company and shall be irrevocable. If any Security called for
redemption is converted pursuant hereto, any money deposited with the Trustee
or any Paying Agent or so segregated and held in trust for the redemption of such
Security shall be paid to the Company upon delivery of a Company Request to the
Trustee or such Paying Agent, or, if then held by the Company, shall be
discharged from such trust.


 


SECTION 1105. Deposit of Redemption Price.


 


Prior to 11:00 A.M.,
New York City time, on 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, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.


 


SECTION 1106. Securities Payable on Redemption Date.


 


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


 


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


 


SECTION 1107. Securities Redeemed in Part.


 


Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a 


 


53

















 


written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, if applicable to Subsidiary Guarantors shall execute the
notations of Subsidiary Guarantee endorsed thereon, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.


 


ARTICLE TWELVE


 


[INTENTIONALLY
OMITTED]


 


ARTICLE THIRTEEN


 


SUBSIDIARY
GUARANTEES


 


SECTION 1301. Applicability of Article.


 


Unless the Company elects to
issue any series of Securities without the benefit of the Subsidiary
Guarantees, which election shall be evidenced in or pursuant to the Board
Resolution or supplemental indenture establishing such series of Securities
pursuant to Section 301, the provisions of this Article shall be
applicable to each series of Securities except as otherwise specified in or
pursuant to the Board Resolution or supplemental indenture establishing such
series pursuant to Section 301.


 


SECTION 1302. Subsidiary Guarantees.


 


Subject to
Section 1301, each Subsidiary Guarantor hereby, jointly and severally,
fully and unconditionally guarantees to each Holder of a Security authenticated
and delivered by the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on such Security when and as the same shall
become due and payable, whether at the Stated Maturity, by acceleration, call
for redemption, offer to purchase or otherwise, in accordance with the terms of
such Security and of this Indenture, and each Subsidiary Guarantor similarly
guarantees to the Trustee the payment of all amounts owing to the Trustee in
accordance with the terms of this Indenture. In case of the failure of the
Company punctually to make any such payment, each Subsidiary Guarantor hereby,
jointly and severally, agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, offer to purchase or otherwise, and as if
such payment were made by the Company.


 


Each of the Subsidiary
Guarantors hereby jointly and severally agrees that its obligations hereunder
shall be absolute, unconditional, irrespective of, and shall be unaffected by,
the validity, regularity or enforceability of such Security or this Indenture,
the absence of any action to enforce the same or any release, amendment, waiver
or indulgence granted to the Company or any guarantor or any consent to
departure from any requirement of any other guarantee of all or any of the
Securities of such series or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor;
provided, however, that, 


 


54

















 


notwithstanding the
foregoing, no such release, amendment, waiver or indulgence shall, without the
consent of such Subsidiary Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or alter the Stated Maturity
thereof. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand for payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other lien on any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest or notice
with respect to such Security or the indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Subsidiary Guarantee will not be
discharged in respect of such Security except by complete performance of the
obligations contained in such Security and in such Subsidiary Guarantee. Each
Subsidiary Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities of a series, to collect interest on
the Securities of a series, or to enforce or exercise any other right or remedy
with respect to the Securities of a series, such Subsidiary Guarantor agrees to
pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of the Holders.


 


Each Subsidiary Guarantor
shall be subrogated to all rights of the Holders of the Securities upon which
its Subsidiary Guarantee is endorsed against the Company in respect of any
amounts paid by such Subsidiary Guarantor on account of such Security pursuant
to the provisions of its Subsidiary Guarantee or this Indenture; provided,
however, that no Subsidiary Guarantor shall be entitled to enforce or to
receive any payments arising out of, or based upon, such right of subrogation
until the principal of (and premium, if any) and interest on all Securities of
the relevant series issued hereunder shall have been paid in full.


 


Each Subsidiary Guarantor
that makes or is required to make any payment in respect of its Subsidiary
Guarantee shall be entitled to seek contribution from the other Subsidiary
Guarantors to the extent permitted by applicable law; provided, however, that
no Subsidiary Guarantor shall be entitled to enforce or receive any payments
arising out of, or based upon, such right of contribution until the principal
of (and premium, if any) and interest on all Securities of the relevant series
issued hereunder shall have been paid in full.


 


Each Subsidiary Guarantee
shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Company for liquidation or reorganization, should
the Company become insolvent or make an assignment for the benefit of creditors
or should a receiver or trustee be appointed for all or any part of the Company’s
assets, and shall, to the fullest extent permitted by law, continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities of a series, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by
any Holder of the Securities, whether as a “voidable preference,” “fraudulent
transfer,” or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Securities shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.


 


55

















 


SECTION 1303. Execution and Delivery of Notation of Subsidiary
Guarantees.


 


To further evidence the
Subsidiary Guarantee set forth in Section 1302, each of the Subsidiary
Guarantors hereby agrees that a notation relating to such Subsidiary Guarantee,
substantially in the form set forth in Section 204, shall be endorsed on
each Security entitled to the benefits of the Subsidiary Guarantee
authenticated and delivered by the Trustee and executed by either manual or
facsimile signature of an officer of such Subsidiary Guarantor, or in the case
of a Subsidiary Guarantor that is a limited partnership, an officer of the
general partner of each Subsidiary Guarantor. Each of the Subsidiary Guarantors
hereby agrees that the Subsidiary Guarantee set forth in Section 1302
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation relating to the Subsidiary Guarantee. If any officer
of the Subsidiary Guarantor, or in the case of a Subsidiary Guarantor that is a
limited partnership, any officer of the general partner of the Subsidiary
Guarantor, whose signature is on this Indenture or a Security no longer holds
that office at the time the Trustee authenticates such Security or at any time
thereafter, the Subsidiary Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantors.


 


SECTION 1304. Release of Subsidiary Guarantors.


 


Unless otherwise specified
pursuant to Section 301 with respect to a series of Securities, each
Subsidiary Guarantee will remain in effect with respect to the respective
Subsidiary Guarantor until the entire principal of, premium, if any, and
interest on the Securities to which such Subsidiary Guarantee relates shall
have been paid in full or otherwise satisfied and discharged in accordance with
the provisions of such Securities and this Indenture and all amounts owing to
the Trustee hereunder have been paid; provided, however, that if (i) such
Subsidiary Guarantor ceases to be a Subsidiary in compliance with the
applicable provisions of this Indenture, (ii) either Defeasance or
Covenant Defeasance occurs with respect to such Securities pursuant to Article Fifteen
or (iii) all or substantially all of the assets of such Subsidiary
Guarantor or all of the Capital Stock of such Subsidiary Guarantor is sold
(including by sale, merger, consolidation or otherwise) by the Company or any
Subsidiary in a transaction complying with the requirements of this Indenture,
then, in each case of (i), (ii) or (iii), upon delivery by the Company of
an Officers’ Certificate and an Opinion of Counsel stating that all conditions
precedent herein provided for relating to the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee and this Article Thirteen
have been complied with, such Subsidiary Guarantor shall be released and
discharged of its obligations under its Subsidiary Guarantee and under this Article Thirteen
without any action on the part of the Trustee or any Holder, and the Trustee
shall execute any documents reasonably required in order to acknowledge the
release of such Subsidiary Guarantor from its obligations under its Subsidiary
Guarantee endorsed on the Securities of such series and under this Article Thirteen.


 


SECTION 1305. Additional Subsidiary Guarantors.


 


Unless otherwise specified
pursuant to Section 301 with respect to a series of Securities, the
Company will cause any domestic Subsidiary of the Company that becomes a
Subsidiary after the date the Securities of a series are first issued hereunder
to become a Subsidiary Guarantor as soon as practicable after such Subsidiary
becomes a Subsidiary. The Company shall cause any


 


56

















 


such Subsidiary to become a
Subsidiary Guarantor with respect to the Securities by executing and delivering
to the Trustee (a) a supplemental indenture, in form and substance
satisfactory to the Trustee, which subjects such Person to the provisions
(including the representations and warranties) of this Indenture as a
Subsidiary Guarantor and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
such supplemental indenture and such Person’s obligations under its Subsidiary
Guarantee and this Indenture constitute the legal, valid, binding and
enforceable obligations of such Person (subject to such customary exceptions
concerning creditors’ rights and equitable principles as may be acceptable to
the Trustee in its discretion).


 


SECTION 1306. Limitation on Liability.


 


Any term or provision of
this Indenture to the contrary notwithstanding, the maximum amount of the
Subsidiary Guarantee of any Subsidiary Guarantor shall not exceed the maximum
amount that can be hereby guaranteed by such Subsidiary Guarantor without
rendering such Subsidiary Guarantee voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.


 


ARTICLE FOURTEEN


 


[INTENTIONALLY
OMITTED]


 


ARTICLE FIFTEEN


 


DEFEASANCE
AND COVENANT DEFEASANCE


 


SECTION 1501. Company’s Option to Effect Defeasance or Covenant
Defeasance.


 


The Company may elect, at
its option at any time, to have Section 1502 or Section 1503 applied
to any Securities or any series of Securities, as the case may be, designated
pursuant to Section 301 as being defeasible pursuant to such
Section 1502 or 1503, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article. Any such election shall be evidenced in or
pursuant to a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities.


 


SECTION 1502. Defeasance and Discharge.


 


Upon the Company’s exercise
of its option (if any) to have this Section applied to any Securities or
any series of Securities, as the case may be, the Company shall be deemed to
have been discharged from its obligations, and each Subsidiary Guarantor shall
be deemed to have been discharged from its obligations with respect to its
Subsidiary Guarantees of such Securities, as provided in this Section on
and after the date the conditions set forth in Section 1504 are satisfied
(herein called “Defeasance”). For this purpose, such Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following


 


57

















 


which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
such Securities to receive, solely from the trust fund described in
Section 1504 and as more fully set forth in such Section, payments in
respect of the principal of and any premium and interest on such Securities
when payments are due, or, if applicable, to convert such Securities in
accordance with their terms, (2) the Company’s and each Subsidiary
Guarantor’s obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, and, if applicable, their obligations with respect to
the conversion of such Securities, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 1503 applied to such
Securities.


 


SECTION 1503. Covenant Defeasance.


 


Upon the Company’s exercise
of its option (if any) to have this Section applied to any Securities or
any series of Securities, as the case may be, (1) the Company shall be
released from its obligations under Section 801(3), Sections 1005 through
1008, inclusive, and any covenants provided pursuant to Section 301(21),
901(2) or 901(7) for the benefit of the Holders of such Securities,
and (2) the occurrence of any event specified in Sections 501(5) (with
respect to any of Section 801(3), Sections 1006 through 1008, inclusive,
and any such covenants provided pursuant to Section 301(21), 901(2) or
901(7)), 501(8) and 501(9) shall be deemed not to be or result in an
Event of Default and (3) the provisions of Article Thirteen shall
cease to be effective, in each case with respect to such Securities and
Subsidiary Guarantees as provided in this Section on and after the date
the conditions set forth in Section 1504 are satisfied (herein called “Covenant
Defeasance”). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Company and the Subsidiary Guarantors, as
applicable, may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(5)) or Article Thirteen,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.


 


SECTION 1504. Conditions to Defeasance or Covenant Defeasance.


 


The following shall be the
conditions to the application of Section 1502 or Section 1503 to any
Securities or any series of Securities, as the case may be:


 


(1) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by
Section 609 and agrees to comply with the provisions of this Article applicable
to it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefits of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be 


 


58

















 


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


 


(2) In
the event of an election to have Section 1502 apply to any Securities or
any series of Securities, as the case may be, the Company shall have delivered
to the Trustee an Opinion of Counsel stating that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.


 


(3) In
the event of an election to have Section 1503 apply to any Securities or
any series of Securities, as the case may be, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.


 


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


 


(5) No
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have
occurred and be continuing at the time of such deposit or, with regard to any
such event specified in Section 501(6), at any time on or prior to the
121st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 121st day).


 


(6) Such
Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming
all Securities are in default within the meaning of such Act).


 


59
















 


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


 


(8) The
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that such deposit shall not cause either the Trustee or the trust so created to
be subject to the Investment Company Act of 1940.


 


(9) The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to
such Defeasance or Covenant Defeasance have been complied with.


 


SECTION 1505. Deposited Money and U.S. Government Obligations to
be Held in Trust; Miscellaneous Provisions.


 


Subject to the provisions of
the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and Section 1506,
the Trustee and any such other trustee are referred to collectively as the “Trustee”)
pursuant to Section 1504 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to Section 1504
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.


 


Anything in this Article to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1504 with respect to any Securities
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.


 


SECTION 1506. Reinstatement.


 


If the Trustee or the Paying
Agent is unable to apply any money in accordance with this Article with
respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from
which the Company has been discharged or released pursuant to Section 1502
or 1503 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 1505 with respect to such Securities in accordance
with this Article; provided, however,


 


60

















 


that if the Company makes
any payment of principal of or any premium or interest on any such Security following
such reinstatement of its obligations, the Company shall be subrogated to the
rights (if any) of the Holders of such Securities to receive such payment from
the money so held in trust.


 


ARTICLE SIXTEEN


 


SINKING
FUNDS


 


SECTION 1601. Applicability of Article.


 


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


 


The minimum amount of any
sinking fund payment provided for by the terms of any Securities is herein
referred to as a “mandatory sinking fund payment”, and any payment in excess of
such minimum amount provided for by the terms of such Securities is herein
referred to as an “optional sinking fund payment.” If provided for by the terms
of any Securities, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 1602. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such
Securities.


 


SECTION 1602. Satisfaction of Sinking Fund Payments with
Securities.


 


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


 


SECTION 1603. Redemption of Securities for Sinking Fund.


 


Not less than 35 days prior
to each sinking fund payment date for any Securities, the Company will deliver
to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the terms of such
Securities, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 1602 and will also deliver to
the Trustee any Securities to be so delivered. Not less than 32 days prior to
each such sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities


 


61

















 


shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.


 


62

















 


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


 


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


 


 


	
  ISSUER:

  	
   

  
	
  BPZ
  Resources, Inc.

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
  SUBSIDIARY
  GUARANTORS:

  	
   

  
	
  [Insert
  Subsidiary Guarantors]

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
  TRUSTEE:

  	
   

  
	
  ,

  	
   

  
	
   

  	
  as Trustee

  	
   

  
	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
						



 


63

















 


SCHEDULE
I


 


SUBSIDIARY
GUARANTORS


 


	
  SUBSIDIARY

  	
   

  	
  STATE OF ORGANIZATION

  
	
  [Insert
  Subsidiary Guarantors]

  	
   

  	
   

  



 


I-1