Exhibit 10.2





Exhibit 10.2




 

 








AIRGAS, INC.




and




THE BANK OF NEW YORK MELLON, as Trustee

 






INDENTURE




Dated as of September 11, 2009




 






 

 






 


 









 











CROSS-REFERENCE TABLE




	 	 	 	 	 
	TIA	 	Indenture
	Section	 	Section
	310

	 	(a)(1)
	 	7.10
	 

	 	(a)(2)
	 	7.10
	 

	 	(a)(3)
	 	N.A.
	 

	 	(a)(4)
	 	N.A.
	 

	 	(a)(5)
	 	7.10
	 

	 	(b)
	 	7.08; 7.10
	 

	 	(b)(1)
	 	7.10
	 

	 	(c)
	 	N.A.
	311

	 	(a)
	 	7.11
	 

	 	(b)
	 	7.11
	 

	 	(c)
	 	N.A.
	312

	 	(a)
	 	2.06
	 

	 	(b)
	 	10.03
	 

	 	(c)
	 	10.03
	313

	 	(a)
	 	7.06
	 

	 	(b)
	 	7.08
	 

	 	(b)(1)
	 	N.A.
	 

	 	(b)(2)
	 	7.06
	 

	 	(c)
	 	7.06
	 

	 	(d)
	 	7.06
	314

	 	(a)
	 	10.04
	 

	 	(b)
	 	N.A.
	 

	 	(c)(1)
	 	10.04
	 

	 	(c)(2)
	 	10.04
	 

	 	(c)(3)
	 	N.A.
	 

	 	(d)
	 	N.A.
	 

	 	(e)
	 	10.05
	 

	 	(f)
	 	N.A.
	315

	 	(a)
	 	7.01(b)
	 

	 	(b)
	 	7.05
	 

	 	(c)
	 	7.01(a)
	 

	 	(d)
	 	7.01(c)
	 

	 	(e)
	 	6.12
	316

	 	(a) (last sentence)
	 	2.10
	 

	 	(a)(1)(A)
	 	6.05
	 

	 	(a)(1)(B)
	 	6.04
	 

	 	(a)(2)
	 	N.A.
	 

	 	(b)
	 	6.08
	 

	 	(c)
	 	8.04
	317

	 	(a)(1)
	 	6.09
	 

	 	(a)(2)
	 	6.10
	 

	 	(b)
	 	2.05; 7.12
	318

	 	(a)
	 	10.01







 





			
	N.A. means Not Applicable
	 
	Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of this
Indenture





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE ONE
	 
	 	 	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE

	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Definitions
	 	 	1	 
	SECTION 1.02.

	 	Other Definitions
	 	 	5	 
	SECTION 1.03.

	 	Incorporation by Reference of Trust Indenture Act
	 	 	5	 
	SECTION 1.04.

	 	Rules of Construction
	 	 	6	 
	 
	 	 	 	 	 	 
	ARTICLE TWO
	 
	 	 	 	 	 	 
	THE SECURITIES
	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Series of Securities; Amount Unlimited
	 	 	6	 
	SECTION 2.02.

	 	Form
	 	 	8	 
	SECTION 2.03.

	 	Execution and Authentication
	 	 	9	 
	SECTION 2.04.

	 	Registrar and Paying Agent
	 	 	10	 
	SECTION 2.05.

	 	Paying Agent To Hold Money in Trust
	 	 	11	 
	SECTION 2.06.

	 	Holder Lists
	 	 	11	 
	SECTION 2.07.

	 	Transfer and Exchange
	 	 	11	 
	SECTION 2.08.

	 	Replacement Securities
	 	 	12	 
	SECTION 2.09.

	 	Outstanding Securities
	 	 	12	 
	SECTION 2.10.

	 	Treasury Securities
	 	 	13	 
	SECTION 2.11.

	 	Temporary Securities
	 	 	13	 
	SECTION 2.12.

	 	Cancellation
	 	 	13	 
	SECTION 2.13.

	 	Defaulted Interest
	 	 	13	 
	SECTION 2.14.

	 	CUSIP Number
	 	 	14	 
	SECTION 2.15.

	 	Deposit of Moneys
	 	 	14	 
	SECTION 2.16.

	 	Book-Entry Provisions for Global Securities
	 	 	14	 
	SECTION 2.17.

	 	Legend for Global Security
	 	 	15	 
	SECTION 2.18.

	 	Computation of Interest
	 	 	16	 
	SECTION 2.19.

	 	Calculation of Original Issue Discount
	 	 	16	 
	SECTION 2.20.

	 	Record Dates
	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE THREE
	 
	 	 	 	 	 	 
	REDEMPTION
	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Applicability of Article
	 	 	17	 
	SECTION 3.02.

	 	Election To Redeem; Notices to Trustee
	 	 	17	 
	SECTION 3.03.

	 	Selection by Trustee of Securities To Be Redeemed
	 	 	17	 
	SECTION 3.04.

	 	Notice of Redemption
	 	 	18	 
	SECTION 3.05.

	 	Effect of Notice of Redemption
	 	 	18	 
	SECTION 3.06.

	 	Deposit of Redemption Price
	 	 	19	 
	SECTION 3.07.

	 	Securities Redeemed in Part
	 	 	19	 
	SECTION 3.08.

	 	Mandatory Redemption
	 	 	19	 






 


-i-









 





	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE FOUR
	 
	 	 	 	 	 	 
	COVENANTS
	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Payment of Principal, Premium and Interest
	 	 	19	 
	SECTION 4.02.

	 	Maintenance of Office or Agency
	 	 	19	 
	SECTION 4.03.

	 	Corporate Existence
	 	 	20	 
	SECTION 4.04.

	 	Money for Securities Payments To Be Held in Trust
	 	 	20	 
	SECTION 4.05.

	 	Payment of Taxes and Other Claims
	 	 	21	 
	SECTION 4.06.

	 	Statement by Officers as to Default
	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE FIVE
	 
	 	 	 	 	 	 
	SUCCESSOR CORPORATION
	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Consolidation, Merger and Sale of Assets
	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE SIX
	 
	 	 	 	 	 	 
	DEFAULTS AND REMEDIES
	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Events of Default
	 	 	22	 
	SECTION 6.02.

	 	Acceleration of Maturity; Rescission
	 	 	23	 
	SECTION 6.03.

	 	Other Remedies
	 	 	24	 
	SECTION 6.04.

	 	Waiver of Past Defaults and Events of Default
	 	 	24	 
	SECTION 6.05.

	 	Control by Majority
	 	 	24	 
	SECTION 6.06.

	 	Limitation on Suits
	 	 	25	 
	SECTION 6.07.

	 	No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	25	 
	SECTION 6.08.

	 	Rights of Holders To Receive Payment
	 	 	25	 
	SECTION 6.09.

	 	Collection Suit by Trustee
	 	 	25	 
	SECTION 6.10.

	 	Trustee May File Proofs of Claim
	 	 	26	 
	SECTION 6.11.

	 	Priorities
	 	 	26	 
	SECTION 6.12.

	 	Undertaking for Costs
	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN
	 
	 	 	 	 	 	 
	TRUSTEE
	 
	SECTION 7.01.

	 	Duties of Trustee
	 	 	27	 
	SECTION 7.02.

	 	Rights of Trustee
	 	 	28	 
	SECTION 7.03.

	 	Individual Rights of Trustee
	 	 	29	 
	SECTION 7.04.

	 	Trustee’s Disclaimer
	 	 	29	 
	SECTION 7.05.

	 	Notice of Defaults
	 	 	30	 
	SECTION 7.06.

	 	Reports by Trustee to Holders
	 	 	30	 
	SECTION 7.07.

	 	Compensation and Indemnity
	 	 	30	 
	SECTION 7.08.

	 	Replacement of Trustee
	 	 	31	 
	SECTION 7.09.

	 	Successor Trustee by Consolidation, Merger, etc.
	 	 	33	 
	SECTION 7.10.

	 	Eligibility; Disqualification
	 	 	33	 
	SECTION 7.11.

	 	Preferential Collection of Claims Against Company
	 	 	33	 
	SECTION 7.12.

	 	Paying Agents
	 	 	33	 






 


-ii-









 





	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE EIGHT
	 
	 	 	 	 	 	 
	MODIFICATION AND WAIVER
	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Without Consent of Holders
	 	 	33	 
	SECTION 8.02.

	 	With Consent of Holders
	 	 	34	 
	SECTION 8.03.

	 	Compliance with Trust Indenture Act
	 	 	35	 
	SECTION 8.04.

	 	Revocation and Effect of Consents
	 	 	36	 
	SECTION 8.05.

	 	Notation on or Exchange of Securities
	 	 	36	 
	SECTION 8.06.

	 	Trustee To Sign Amendments, etc.
	 	 	36	 
	 
	ARTICLE NINE
	 
	 	 	 	 	 	 
	DISCHARGE OF INDENTURE; DEFEASANCE
	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Discharge of Liability on Securities; Defeasance
	 	 	36	 
	SECTION 9.02.

	 	Conditions to Defeasance
	 	 	38	 
	SECTION 9.03.

	 	Deposited Money and Government Obligations To Be Held in Trust; Other Miscellaneous Provisions
	 	 	39	 
	SECTION 9.04.

	 	
Reinstatement
	 	 	39	 
	SECTION 9.05.

	 	Moneys Held by Paying Agent
	 	 	39	 
	SECTION 9.06.

	 	Moneys Held by Trustee
	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE TEN
	 
	 	 	 	 	 	 
	MISCELLANEOUS
	 
	SECTION 10.01.

	 	Trust Indenture Act Controls
	 	 	40	 
	SECTION 10.02.

	 	Notices.
	 	 	40	 
	SECTION 10.03.

	 	Communications by Holders with Other Holders
	 	 	42	 
	SECTION 10.04.

	 	Certificate and Opinion as to Conditions Precedent
	 	 	42	 
	SECTION 10.05.

	 	Statements Required in Certificate and Opinion
	 	 	42	 
	SECTION 10.06.

	 	Rules by Trustee and Agents
	 	 	42	 
	SECTION 10.07.

	 	Legal Holidays
	 	 	43	 
	SECTION 10.08.

	 	Governing Law
	 	 	43	 
	SECTION 10.09.

	 	No Adverse Interpretation of Other Agreements
	 	 	43	 
	SECTION 10.10.

	 	Successors
	 	 	43	 
	SECTION 10.11.

	 	Multiple Counterparts
	 	 	43	 
	SECTION 10.12.

	 	Table of Contents, Headings, etc.
	 	 	43	 
	SECTION 10.13.

	 	Separability
	 	 	43	 
	SECTION 10.14.

	 	Waiver of Jury Trial
	 	 	43	 
	SECTION 10.15.

	 	Force Majeure
	 	 	44	 






 


-iii-









 





EXHIBITS




	 	 	 	 	 
	Exhibit A-1

	 	Form of Security
	 	A-1-1
	Exhibit B

	 	Form of Notation of Guarantee Relating To [Insert Designation
of Guaranteed Securities]
	 	B-1







 


-iv-











 




INDENTURE, dated as of September 11, 2009 among Airgas, Inc., a Delaware corporation, as
issuer (the “Company”) and The Bank of New York Mellon, a New York banking corporation, as
trustee (the “Trustee”).



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



Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Securities.



ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE




SECTION 1.01. Definitions.




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



“Agent” means any Registrar, Paying Agent, or agent for service or notices and
demands.



“amend” means amend, modify, supplement, restate or amend and restate, including
successively; and “amending” and “amended” have correlative meanings.



“Bankruptcy Law” means Title 11, United States Code, or any similar U.S. Federal or
state law or law of any other jurisdiction relating to bankruptcy, insolvency, winding-up,
liquidation, reorganization or relief of debtors.



“Board of Directors” means either the board of directors of the Company or any duly
authorized committee of that board.



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



“Business Day” means a day on which commercial banking institutions and foreign
exchange markets settle payments in New York City, and shall exclude any day on which commercial
banking institutions and foreign exchange markets do not settle payments in London.



“Capital Stock” means, with respect to any Person, any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or interests
(including partnership interests) in (however designated) the equity of such Person, including any
preferred stock, but excluding any debt securities convertible into such equity.



“Commission” means the U.S. Securities and Exchange Commission.


 


 









 





“Company” means the party named as such in the first paragraph of this Indenture,
until a successor replaces such party pursuant to Article Five and thereafter means the successor.



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



“Consolidated Net Tangible Assets” means, as of any date, the total amount of assets
of the Company and its Subsidiaries on a consolidated basis (less applicable reserves and other
properly deductible items) after deducting therefrom (1) all current liabilities (excluding (x) any
current liabilities which are by their terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after the time as of which the amount thereof is being
computed or which are supported by other borrowings with a maturity of more than 12 months from the
date of calculation and (y) current maturities of long-term Indebtedness and capital lease
obligations), (2) all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles and (3) appropriate adjustments on account of minority interests
of other Persons holding stock of the Subsidiaries, all as set forth on the most recent balance
sheet of the Company and its consolidated Subsidiaries (but, in any event, as of a date within 120
days of the date of determination), in each case excluding intercompany items and computed in
accordance with GAAP.



“Corporate Trust Office” means the principal office of the Trustee at which at any
time this Indenture shall be administered, which office at the date hereof is located at The Bank
of New York Mellon, 101 Barclay Street, New York, New York 10286, Attention: Corporate Trust
Administration — Floor 8W, or such other address as the Trustee may designate from time to time by
notice to the Holders and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time to time by notice
to the Holders and the Company).



“corporation” includes corporations, associations, companies (including any limited
liability company), business trusts and limited partnerships.



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



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



“Depository” means, with respect to the Securities issued in the form of one or more
Global Securities, The Depository Trust Company or another Person designated as Depository by the
Company, which Person must be a clearing agency registered under the Exchange Act that is
designated to act as Depository for such Securities as contemplated by Section 2.01.




“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.




“GAAP’” means generally accepted accounting principles set forth in the
opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect on the date of this Indenture.


 


-2-









 





“Global Security” means a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 2.17 (or such legend as may be specified as
contemplated by Section 2.01 for such Securities).



“Government Obligations” means any security issued or guaranteed as to principal or
interest by the United States, or by a person controlled or supervised by and acting as an
instrumentality of the government of the United States pursuant to authority granted by the
Congress of the United States or any certificate of deposit for any of the foregoing.



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



“Indebtedness” means with respect to any Person at any date of determination (without
duplication), indebtedness for borrowed money or indebtedness evidenced by bonds, notes, debentures
or other similar instruments given to finance the acquisition of any businesses, properties or
assets of any kind (including, without limitation, Capital Stock or other equity interests in any
Person).



“Indenture” means this Indenture as amended, restated or supplemented from time to
time, including, for all purposes of this instrument, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any supplemental indenture,
respectively. The term “Indenture” shall also include the terms of a particular series of
Securities established as contemplated by Section 2.01.



“interest” means, with respect to the Securities, interest on the Securities, and with
respect to any Original Issue Discount Security, which by its terms bears interest only after its
Maturity Date, means interest payable after the Maturity Date of such Original Issue Discount
Security.



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



“Issue Date” means, with respect to Securities of any series, the date on which
Securities of such series are initially issued.



“Lien” with respect to any property or assets, means any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement
(other than any easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the same economic effect
as any of the foregoing), but not including the interest of a lessor under a lease that is an
operating lease under GAAP.



“Maturity Date” when used with respect to any Security, means the date on which the
principal amount of such Security becomes due and payable as therein or herein provided.



“Officer” means the Chief Executive Officer, the President, the Chief Financial
Officer or any Vice President, the Treasurer or the Secretary of the specified Person.



“Officers’ Certificate” means a certificate signed by the Chairman of the Board, the
Chief Executive Officer, the Chief Financial Officer, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.


 


-3-









 






“Obligor” means the Company and any guarantor.



“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or
counsel for the Company, and who shall be reasonably 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 Date thereof pursuant to Section 6.02.



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



“Physical Securities” means certificated Securities in registered form in
substantially the form set forth in Exhibit A- 1 or in such form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental hereto.



“Place of Payment”, when used with respect to the Securities of such series, means the
place or places where the principal of (and premium, if any) and interest on the Securities of such
series are payable as specified as contemplated by Section 4.02.



“Principal Property” means any land, land improvements or building, together with the
land upon which it is erected and fixtures comprising a part thereof, in each case, owned or leased
by us or any Restricted Subsidiary and located in the United States, the gross book value (without
deduction of any reserve for depreciation) of which on the date as of which the determination is
being made is an amount which exceeds 1.0% of Consolidated Net Tangible Assets.



“Redemption Date” when used with respect to any Security to be redeemed, means the
date fixed for such redemption pursuant to the terms of 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.



“Responsible Officer” shall mean, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.



“Restricted Subsidiary” means any Subsidiary which, at the time of determination, owns
or is a lessee pursuant to a capital lease of any Principal Property.




“Securities” has the meaning provided in the preamble of this Indenture.



“Securities Act” means the U.S. Securities Act of 1933, as amended.


 


-4-









 





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



“Subsidiary” of a Person means, with respect to any Person, any corporation,
association, partnership or other business entity of which at least a majority of the total voting
power of the Capital Stock entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such
Person or (3) one or more Subsidiaries of such Person.



“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa77bbbb) as in
effect on the date of this Indenture (except as provided in Section 8.03).



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



SECTION 1.02. Other Definitions.




The definitions of the following terms may be found in the sections indicated as follows:



	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section	 
	 
	“Agent Members”
	 	 	2.16	 
	“Covenant Defeasance”
	 	 	9.01	 
	“Events of Default”
	 	 	6.01	 
	“Expiration Date”
	 	 	2.19	 
	“Legal Defeasance”
	 	 	9.01	 
	“Legal Holiday”
	 	 	10.07	 
	“Notice of Default”
	 	 	6.01	 
	“Paying Agent”
	 	 	2.04	 
	“Registrar
	 	 	2.04	 






SECTION 1.03. Incorporation by Reference of Trust Indenture Act.




Whenever this Indenture refers to a provision of the TIA, the portion of such provision
required to be incorporated herein in order for this Indenture to be qualified under the TIA is
incorporated by reference in and made a part of this Indenture. The following TIA terms used in
this Indenture have the following meanings:




“indenture securities” means the Securities.




“indenture securityholder” means a Holder.


 


-5-









 






“indenture to be qualified” means this Indenture.




“obligor on this indenture securities” means the Company or any other obligor on the
Securities.



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



SECTION 1.04. Rules of Construction.





Unless the context otherwise requires:




(i) a term has the meaning assigned to it herein, whether defined expressly or by
reference;




(ii) “or” is not exclusive;




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




(iv) words used herein implying any gender shall apply to both genders;




(v) “herein,” “hereof’ and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subsection;




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




(vii) “$,” “U.S. Dollars” and “United States Dollars” each refer to United States
dollars, or such other money of the United States that at the time of payment is legal
tender for payment of public and private debts.



ARTICLE TWO




THE SECURITIES




SECTION 2.01. Series of Securities; Amount Unlimited.




The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by one or more Board
Resolutions and, subject to Sections 2.02 and 2.03, set forth in, or determined in the manner
provided in, an Officers’ Certificate, and, in all cases, established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,




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




(2) 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 Sections 2.07, 2.08, 2.11, 3.06 or 8.05, and except for
any Securities


 


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which, pursuant to Section 2.03, are deemed never to have been authenticated and
delivered hereunder);




(3) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security is registered at the close of business on
the regular record date for such interest;




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




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




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




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




(8) 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;




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




(10) if the amount of principal of or 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;




(11) 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;




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




(13) if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration of
acceleration of the maturity of the principal amount thereof pursuant to Section 6.02;


 


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(14) if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which shall be deemed to be the principal 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 date other than the Stated Maturity or which shall
be deemed to be outstanding as of any date prior to the Stated Maturity (or, in any such
case, the manner in which such amount deemed to be the principal amount shall be
determined);




(15) if 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
2.17 and any circumstances in addition to or in lieu of those set forth in Section 2.16 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;




(16) 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 6.02;




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




(18) whether the Securities of such series shall have the benefit of any guarantors,
the terms, if any, of any guarantees and the name or names of the guarantors, if any; and




(19) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 8.01(xiii)).



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 2.03) 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
the Officers’ Certificate setting forth the terms of the series.



The Securities shall be general unsecured senior obligations of the Company and will rank
equally with all other unsecured senior indebtedness of the Company from time to time outstanding.



SECTION 2.02. Form.




The Securities and the Trustee’s certificate of authentication with respect thereto shall be
substantially in the form set forth in Exhibit A-1, which is incorporated in and forms a part of
this Indenture or such form established by one or more Board Resolutions adopted with respect of
such series or established 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



 


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may be required to comply with the rules of any securities exchange or Depository therefor or
as may, consistently herewith, be determined by the officers executing such Securities, as
evidenced by their execution thereof. If the form of Securities of any series is established by
action taken pursuant to a 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 2.03 for the
authentication and delivery of such Securities.



The Securities shall be issued initially in the form of one or more permanent Global
Securities in registered form and deposited with the Trustee, as custodian for the Depository. The
aggregate principal amount of any Global Security may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the Depository.



The Securities may have notations, legends or endorsements required by law, rule or usage to
which the Company is subject.



The terms and provisions contained in the Securities shall constitute, and are expressly made,
a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and provisions and agree to
be bound thereby.



SECTION 2.03. Execution and Authentication.



The Securities shall be executed on behalf of the Company by its Chairman of the Board, Chief
Executive Officer, Chief Financial Officer, President, Treasurer, Assistant Treasurer, Controller,
Assistant Controller, Secretary, Assistant Secretary or any Vice President. The signature of any
of these officers on the Securities may be manual or facsimile.



If an Officer whose signature is on a Security was an Officer at the time of such execution
but no longer holds that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.



At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 2.02, 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 7.01) 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 2.02, 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 2.01, 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 enforceable in
accor-


 


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dance with their terms, subject to 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 2.01 and of the preceding paragraph, if all
Securities of any 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 2.01 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 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 2.12,
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.



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 2.01. In the absence
of any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $2,000 and any integral multiples of $1,000 in
excess thereof.



SECTION 2.04. Registrar and Paying Agent.




The Company shall maintain an office or agency in a Place of Payment where Securities may be
presented for registration of transfer or for exchange (the “Registrar”), and an office or
agency where Securities may be presented for payment (the “Paying Agent”) and an office or
agency where notices and demands to or upon the Company, if any, in respect of the Securities and
this Indenture may be served. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more additional Paying Agents. The term
“Paying Agent” includes any additional Paying Agent.



The Company shall enter into an appropriate agency agreement, which shall incorporate the
provisions of the TIA, with any Agent that is not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The Company shall notify the
Trustee of the name and address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.07.




 


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The Company initially appoints the Trustee as Registrar, Paying Agent and Agent for service of
notices and demands in connection with the Securities and this Indenture and the Company may change
the Paying Agent without prior notice to the Holders. The Company or any of its Subsidiaries may
act as Paying Agent.



SECTION 2.05. Paying Agent To Hold Money in Trust.




Each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money
held by the Paying Agent for the payment of principal of or premium or interest on the Securities
(whether such money has been paid to it by the Company or any other obligor on the Securities), and
the Company and the Paying Agent shall notify the Trustee of any Default by the Company (or any
other obligor on the Securities) in making any such payment. Money held in trust by the Paying
Agent need not be segregated except as required by law and in no event shall the Paying Agent be
liable for any interest on any money received by it hereunder; provided that if the Company or an
Affiliate thereof acts as Paying Agent, it shall segregate the money held by it as Paying Agent and
hold it as a separate trust fund. The Company at any time may require the Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed and the Trustee may at any time
during the continuance of any Event of Default specified in Section 6.01(1) or (2), upon written
request to the Paying Agent, require the Paying Agent to pay forthwith all money so held by it to
the Trustee and to account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.



SECTION 2.06. Holder Lists.




The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of the Holders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least five Business Days before each
Interest Payment Date for Securities of any series, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders of Securities of such series; provided that, as long as
the Trustee is the Registrar, no such list need be furnished.



SECTION 2.07. Transfer and Exchange.




Subject to Section 2.16, when Securities of any series are presented to the Registrar with a
request from the Holder of such Securities to register a transfer or to exchange them for an equal
principal amount of Securities of such series of other authorized denominations, the Registrar
shall register the transfer as requested. Every Security presented or surrendered for registration
of transfer or exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar, duly executed by the Holder thereof
or his attorneys duly authorized in writing. To permit registrations of transfers and exchanges,
the Company shall issue and execute and the Trustee shall authenticate new Securities of the same
series evidencing such transfer or exchange at the Registrar’s request. No service charge shall be
made to the Holder for any registration of transfer or exchange. The Company may require from the
Holder payment of a sum sufficient to cover any transfer taxes or other governmental charge that
may be imposed in relation to a transfer exchange, but this provision shall not apply to any
exchange pursuant to Section 2.11, 3.06 or 8.05 (in which events the Company shall be responsible
for the payment of such taxes). The Registrar shall not be required to exchange or register a
transfer of any Security for a period of 15 days immediately preceding the redemption of Securities
of such series, except the unredeemed portion of any Security being redeemed in part.


 


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Any Holder of a Global Security shall, by acceptance of such Global Security, agree that
transfers of the beneficial interests in such Security may be effected only through a book entry
system maintained by the Holder of such Security (or its agent), and that ownership of a beneficial
interest in the Global Security shall be required to be reflected in a book entry.



Except as expressly provided herein, neither the Trustee nor the Registrar shall have any duty
to monitor the Company’s compliance with or have any responsibility with respect to the Company’s
compliance with any Federal or state securities laws.



The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among Agent
Members or beneficial owners of interests in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.



Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not
taken by the Depository.



SECTION 2.08. Replacement Securities.




If a mutilated Security is surrendered to the Registrar or the Trustee, or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security of the same series if the Holder of
such Security furnishes to the Company and the Trustee evidence reasonably acceptable to them of
the ownership and the destruction, loss or theft of such Security and if the requirements of
Section 8-405 of the New York Uniform Commercial Code as in effect on the date of this Indenture
are met. If required by the Trustee or the Company, an indemnity bond shall be posted, sufficient
in the judgment of all to protect the Company, the Trustee or any Paying Agent from any loss that
any of them may suffer if such Security is replaced. The Company may charge such Holder for the
Company’s reasonable out-of-pocket expenses in replacing such Security and the Trustee may charge
the Company for the Trustee’s expenses (including, without limitation, attorneys’ fees and
disbursements) in replacing such Security. Every replacement Security shall constitute a
contractual obligation of the Company.



SECTION 2.09. Outstanding Securities.




The Securities outstanding at any time are all Securities that have been authenticated by the
Trustee except for (a) those canceled by it, (b) those delivered to it for cancellation, (c) to the
extent set forth in Sections 9.01 and 9.02, on or after the date on which the conditions set forth
in Section 9.01 or 9.02 have been satisfied, those Securities theretofore authenticated and
delivered by the Trustee hereunder and (d) those described in this Section 2.09 as not outstanding.
Subject to Section 2.10, a Security does not cease to be outstanding because the Company or one of
its Affiliates holds the Security.



If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser in whose hands such Security is a legal, valid and binding obligation of the Company.



If the Paying Agent holds, in its capacity as such, on any Maturity Date, money sufficient to
pay all accrued interest and principal with respect to the Securities payable on that date and is
not pro-



 


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hibited from paying such money to the Holders thereof pursuant to the terms of this Indenture,
then on and after that date such Securities cease to be outstanding and interest on them ceases to
accrue.



SECTION 2.10. Treasury Securities.




In determining whether the Holders of the required principal amount of Securities of any
series have concurred in any declaration of acceleration or Notice of Default or direction, waiver
or consent or any amendment, modification or other change to this Indenture, Securities of such
series owned by the Company or any other Affiliate of the Company shall be disregarded as though
they were not outstanding, except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent or any amendment, modification or
other change to this Indenture, only Securities of such series as to which a Responsible Officer of
the Trustee has actually received an Officers’ Certificate stating that such Securities are so
owned shall be so disregarded. Securities of such series so owned which have been pledged in good
faith shall not be disregarded if the pledgee established to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company
any other obligor on such Securities or any of their respective Affiliates.



SECTION 2.11. Temporary Securities.




Until definitive Securities of any series are prepared and ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities of such series. Temporary
Securities shall be substantially in the form of definitive Securities of the same series but may
have variations that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive
Securities of any series in exchange for temporary Securities of such series. Until such exchange,
temporary Securities shall be entitled to the same rights, benefits and privileges as definitive
Securities of such series.



SECTION 2.12. Cancellation.




The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation and shall deliver such
canceled Securities to the Company upon request therefor. The Company may not reissue or resell,
or issue new Securities of any series to replace Securities of such series that the Company has
redeemed or paid, or that have been delivered to the Trustee for cancellation.



SECTION 2.13. Defaulted Interest.




If the Company defaults on a payment of interest on any series of Securities, it shall pay the
defaulted interest, plus (to the extent permitted by law) any interest payable on the defaulted
interest (including post-petition interest in any proceeding under any Bankruptcy Law), in
accordance with the terms hereof, to the Persons who are Holders of such series of Securities on a
subsequent special record date, which date shall be at least five Business Days prior to the
payment date. The Company shall fix such special record date and payment date in a manner
satisfactory to the Trustee. At least 10 days before such special record date, the Company shall
mail to each Holder of such series of Securities a notice that states the special record date, the
payment date and the amount of defaulted interest, and interest payable on defaulted interest, if
any, to be paid. The Company may make payment of any defaulted interest in any other lawful manner
not inconsistent with the requirements (if applicable) of any securities exchange on which the
Securities of such series may be listed and, upon such notice as may be required by such



 


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exchange, if, after written notice given by the Company to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by the Trustee.



SECTION 2.14. CUSIP Number.




The Company in issuing the Securities of any series may use a “CUSIP” number, and if so, such
CUSIP number shall be included in notices of redemption or exchange as a convenience to Holders of
such series; provided that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the Securities, and that
reliance may be placed only on the other identification numbers printed on the Securities. The
Company shall promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Securities and of any change in the CUSIP number.



SECTION 2.15. Deposit of Moneys.




Prior to 11:00 a.m., New York City time, on each Interest Payment Date and Maturity Date, the
Company shall have deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date or Maturity Date, as the case may
be, in a timely manner which permits the Trustee to remit payment to the Holders on such Interest
Payment Date or Maturity Date, as the case may be. The principal and interest on Global Securities
shall be payable to the Depository or its nominee, as the case may be, as the sole registered owner
and the sole Holder of the Global Securities represented thereby. The principal and interest on
Physical Securities shall be payable, either in person or by mail, at the office of the Paying
Agent.



SECTION 2.16. Book-Entry Provisions for Global Securities.




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



(b) Members of, or direct or indirect participants in, the Depository (“Agent
Members”) shall have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the Global Security, and
the Depository may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other authorization (which
may be in electronic form) furnished by the Depository or impair, as between the Depository and its
Agent Members, the operation of customary practices governing the exercise of the rights of a
Holder of any Security.



(c) Transfers of Global Securities shall be limited to transfer in whole, but not in part, to
the Depository, its successors or their respective nominees. Interests of beneficial owners in the
Global Securities of any series may be transferred or exchanged for Physical Securities of such
series in accordance with the rules and procedures of the Depository. In addition, a Global
Security shall be exchangeable for Physical Securities if (i) the Depository (x) notifies the
Company that it is unwilling or unable to continue as depository for such Global Security or (y)
has ceased to be a clearing agency registered under the Exchange Act, and, with respect to (x) or
(y), the Company thereupon fails to appoint a successor depository within 90 days of such notice or
cessation, (ii) the Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of such Physical Securities in exchange for any or all of the Securities of any series
represented by the Global Securities of such series or (iii) there shall



 


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have occurred and be continuing an Event of Default with respect to the Securities of any
series. In all cases, Physical Securities delivered in exchange for any Global Security or
beneficial interests therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depository (in accordance with its customary
procedures).



(d) In connection with any transfer or exchange of a portion of the beneficial interest in any
Global Security to beneficial owners pursuant to paragraph (b), the Registrar shall (if one or more
Physical Securities are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the Global Security of such series in an amount equal to the principal
amount of the beneficial interest in the Global Security of such series to be transferred, and the
Company shall execute, and the Trustee shall upon receipt of a written order from the Company
authenticate and make available for delivery, one or more Physical Securities of like tenor and
amount.



(e) In connection with the transfer of Global Securities of any series as an entirety to
beneficial owners pursuant to paragraph (b), the Global Securities of such series shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the Depository in writing in
exchange for its beneficial interest in the Global Securities of such series, an equal aggregate
principal amount of Physical Securities of authorized denominations.



(f) Any beneficial interest in one of the Global Securities of any series that is transferred
to a Person who takes delivery in the form of an interest in another Global Security of such series
shall, upon transfer, cease to be an interest in such Global Security and become an interest in
such other Global Security and, accordingly, shall thereafter be subject to all transfer
restrictions and other procedures applicable to beneficial interests in such other Global Security
for as long as it remains such an interest.



(g) The Holder of any Global Security may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Securities.



(h) None of the Company, the Trustee, any Paying Agent or any Registrar will have any
responsibility or liability for any aspect of Depository records relating to, or payments made on
account of, beneficial ownership interests in a Global Security or for maintaining, supervising or
reviewing any Depository records relating to such beneficial ownership interests, or for transfers
of beneficial interests in the Securities or any transactions between the Depositary and beneficial
owners.



SECTION 2.17. Legend for Global Security.




Unless otherwise specified as contemplated by Section 2.01 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 Depository 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 Depository or a nominee thereof, except in the limited
circumstances described in the Indenture.


 


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SECTION 2.18. Computation of Interest.




Except as otherwise specified as contemplated by Section 2.01, interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months.



SECTION 2.19. Calculation of Original Issue Discount.




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



SECTION 2.20. Record Dates.




(a) 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 7.06.



(b) 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 6.02, (iii) any request to
institute proceedings referred to in Section 6.06(2) or (iv) any direction referred to in Section
6.05, 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



 


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applicable Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series.



(c) 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
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, 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.



(d) 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.



ARTICLE THREE




REDEMPTION




SECTION 3.01. Applicability of Article.




Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01
for such Securities) in accordance with this Article.



SECTION 3.02. Election To Redeem; Notices to Trustee.




If the Company elects to redeem the Securities of any series, the Company shall notify the
Trustee in writing at least 45 days prior to the Redemption Date (unless a shorter period is
acceptable to the Trustee) of the Redemption Date, the principal amount of such Securities to be
redeemed and the Redemption Price, and deliver to the Trustee, no later than two Business Days
prior to the redemption date, an Officers’ Certificate stating that such redemption will comply
with the conditions contained herein and in the Securities of such series, as appropriate. Notice
given to the Trustee pursuant to this Section 3.01 may, at the Company’s discretion, be subject to
the satisfaction of one or more conditions precedent.



SECTION 3.03. Selection by Trustee of Securities To Be Redeemed.




If less than all the Securities of any series are to be redeemed, the Trustee shall select the
Securities to be redeemed on a pro rata basis or on as nearly a pro rata basis as is practicable
(subject to procedures of the Depository). The Trustee shall promptly notify the Company of the
Securities selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. The Trustee may select for redemption
portions of the principal of the Securities that have denominations larger than $2,000. Securities
and portions thereof the Trustee selects shall be redeemed in amounts of $2,000 or whole multiples
of $1,000 equal to or greater than $2,000. For all purposes of this Indenture unless the context
otherwise requires, provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.


 


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SECTION 3.04. Notice of Redemption.




At least 30 days, and no more than 60 days, before a Redemption Date, the Company shall mail,
or cause to be mailed, a notice of redemption by first-class mail to each Holder of Securities to
be redeemed at his or her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.04.



The notice shall identify the Securities to be redeemed (including the CUSIP numbers thereof)
and shall state:




(i) the Redemption Date;




(ii) the appropriate calculation of the Redemption Price;




(iii) if fewer than all outstanding Securities of any series are to be redeemed, the
portion of the principal amount of such Securities to be redeemed and that, after the
Redemption Date and upon surrender of such Securities, a new Security or Securities of
such series in principal amount equal to the unredeemed portion will be issued;




(iv) the name and address of the Paying Agent;




(v) that Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price;




(vi) that unless the Company defaults in making the redemption payment, interest on
Securities called for redemption ceases to accrue on and after the Redemption Date;




(vii) if such notice is conditioned upon the occurrence of one or more conditions
precedent, the nature of such conditions precedent; and




(viii) the aggregate series and the principal amount of Securities of each such
series that are being redeemed.



At the Company’s written request made at least five Business Days prior to the date on which
notice is to be given, the Trustee shall give the notice of redemption in the Company’s name and at
the Company’s sole expense.



SECTION 3.05. Effect of Notice of Redemption.




Once the notice of redemption described in Section 3.03 is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the Redemption Price, including any
premium, plus interest accrued to the Redemption Date. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price, including any premium, plus interest accrued to
the Redemption Date; provided that if the Redemption Date is after a regular record date and on or
prior to the Interest Payment Date, the accrued interest shall be payable to the Holder of the
redeemed Securities registered on the relevant record date; and provided, further, that if a
Redemption Date is a Legal Holiday, payment shall be made on the next succeeding Business Day and
no interest shall accrue for the period from such Redemption Date to such succeeding Business Day.
Such notice, if mailed in the manner provided in Section 3.03, shall be conclusively presumed to
have been given whether or not the Holder receives such notice.


 


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SECTION 3.06. Deposit of Redemption Price.




On or prior to 11:00 A.M., New York City time, on each Redemption Date, the Company shall
deposit with the Paying Agent in immediately available funds money sufficient to pay the Redemption
Price of, including premium, if any, and accrued interest on all Securities to be redeemed on that
date other than Securities or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation.



On and after any Redemption Date, if money sufficient to pay the Redemption Price of,
including premium, if any, and accrued interest on Securities called for redemption shall have been
made available in accordance with the immediately preceding paragraph, the Securities called for
redemption will cease to accrue interest and the only right of the Holders of such Securities will
be to receive payment of the Redemption Price of and, subject to the first proviso in Section 3.05,
accrued and unpaid interest on such Securities to the Redemption Date. If any Security surrendered
for redemption shall not be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of such Security and any interest not paid on
such unpaid principal, in each case at the rate and in the manner provided in such Securities.



SECTION 3.07. Securities Redeemed in Part.




Upon surrender of a Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder thereof a new Security of such series equal in principal
amount to the unredeemed portion of the original Security in the name of the Holder upon
cancellation of the original Security surrendered, except that if a Global Security is so
surrendered, the Company shall execute and the Trustee shall authenticate and deliver to the
Depository, a new Global Security of such series in denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered.



SECTION 3.08. Mandatory Redemption.




The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Securities of any series, unless otherwise specified in accordance with Section 2.01 when
establishing the terms of such series of Securities.



ARTICLE FOUR




COVENANTS




SECTION 4.01. Payment of Principal, Premium and Interest.




The Company covenants and agrees that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of the Securities and
this Indenture.



SECTION 4.02. Maintenance of Office or Agency.




The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of such series may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of such series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in



 


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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 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 any 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 4.03. Corporate Existence.




Subject to Article Five, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a corporation.



SECTION 4.04. Money for Securities Payments To Be Held in Trust.




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



Whenever the Company shall have a Paying Agent for the Securities of any series, it will,
prior to 11:00 a.m., New York City time, on each due date of the principal of (and premium, if any)
or interest on the Securities of such series, deposit with the Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, 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 the Paying Agent, other than the Trustee, to execute and deliver to the
Trustee an instrument in which the Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that the Paying Agent will:




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




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




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



The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct the Paying Agent to




 


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pay, to the Trustee all sums held in trust by the Company or the 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
the Paying Agent; and, upon such payment by the Paying Agent to the Trustee, the Paying Agent shall
be released from all further liability with respect to such money.



SECTION 4.05. 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 Restricted Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary, and (2) all lawful claims against the Company or any Restricted Subsidiary
for labor, materials and supplies which in the case of either clause (1) or (2) of this Section, if
unpaid, might by law become a lien upon a Principal Property; provided, however, that neither the
Company nor any Restricted Subsidiary shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.



SECTION 4.06. Statement by Officers as to Default.




The Company and each guarantor, if any, of any series of Securities (to the extent that such
guarantor is so required under the TIA) will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in Default in the
performance and observance of any of covenant, agreement or condition contained in this Indenture,
and if the Company shall be in Default, specifying all such Defaults and the nature and status
thereof of which they may have knowledge.



ARTICLE FIVE




SUCCESSOR CORPORATION




SECTION 5.01. Consolidation, Merger and Sale of Assets.




The Company may: (1) consolidate or merge with or into another Person; or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the Company’s properties or
assets and Subsidiaries taken as a whole, in one or more related transactions, to another Person;
if:




(1) either: (a) the Company is the surviving corporation; or (b) the Person formed by
or surviving any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, conveyance or other disposition has been made is a corporation
organized or existing under the laws of the United States, any state of the United States or
the District of Columbia (any such Person, the “Successor Company”);




(2) the Successor Company assumes all the obligations of the Company under the
Securities and this Indenture pursuant to agreements reasonably satisfactory to the Trustee;
and




(3) immediately after such transaction no Default exists.



The Successor Company will be the successor to the Company and shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture, and
the



 


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predecessor company shall be released from its obligations with respect to the Securities,
including with respect to its obligation to pay the principal of and interest on the Securities.



If, upon any such consolidation or merger, or upon any such sale, assignment, transfer,
conveyance or disposal as provided above, any property, assets or any shares of stock or
Indebtedness or other obligations of any Restricted Subsidiary or any Principal Property, owned
immediately prior to the transaction, would thereupon become subject to any Lien securing
Indebtedness of, or guaranteed by, such other Person (other than as permitted by this Indenture),
the Company, prior to such consolidation, merger, sale, assignment, transfer, conveyance or
disposal, will, by executing and delivering to the Trustee a supplemental indenture, secure the due
and punctual payment of the principal of, and any premium and interest on, the Securities (together
with, if the Company decides, any other Indebtedness of, or guaranteed by, the Company or any
Restricted Subsidiary and then existing or thereafter created) equally and proportionately with the
Indebtedness secured by such mortgage, security interest, pledge or lien.



ARTICLE SIX




DEFAULTS AND REMEDIES




SECTION 6.01. Events of Default.



The following events shall be “Events of Default” with respect to Securities of any
series:




(1) a failure to pay interest upon any Security of such series that continues for a
period of 30 days after payment is due;




(2) a failure to pay the principal or premium, if any, on any Security of such series
when due upon Stated Maturity, by declaration, redemption or otherwise;




(3) a failure to perform any of the Company’s other covenants or agreements contained
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 a series of Securities other than such
series) applicable to the Securities of any series, for a period of 60 days after written
notice to the Company by the Trustee or to the Company and the Trustee from the Holders of
at least 25% of the principal amount of the Securities of such series then outstanding
specifying such Default or breach and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder;




(4) the Company pursuant to or within the meaning of any Bankruptcy Law:




(A) commences a voluntary insolvency proceeding;




(B) consents to the entry of an order for relief against it in an involuntary
insolvency proceeding or consents to its dissolution or winding-up;




(C) consents to the appointment of a Custodian of it or for any substantial
part of its property; or




(D) makes a general assignment for the benefit of its creditors; or takes any
comparable action under any foreign laws relating to insolvency; provided, however,
that the liquidation of any Restricted Subsidiary into another Restricted
Subsidiary, other than


 


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as part of a credit reorganization, shall not constitute an Event of Default
under this Section 6.01(4);




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




(A) is for relief against the Company in an involuntary insolvency proceeding;




(B) appoints a Custodian of the Company or for any substantial part of its
property;




(C) orders the winding-up, liquidation or dissolution of the Company;




(D) orders the presentation of any plan or arrangement, compromise or
reorganization of the Company; or




(E) grants any similar relief under any foreign laws;
and in each such case the order or decree remains unstayed and in effect for 90 days; and




(6) the failure to deposit any sinking, purchase or analogous fund payment in respect
of any Securities of such series that continues for a period of 30 days after payment is
due.



The foregoing will constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is 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.



SECTION 6.02. Acceleration of Maturity; Rescission.




If an Event of Default with respect to the Securities of any series (other than an Event of
Default specified in Sections 6.01(4) and 6.01(5)) shall have occurred and be continuing, the
Trustee or the registered Holders of not less than 25% in aggregate principal amount of the
Securities of such series then outstanding may declare to be immediately due and payable the
principal amount (or, if the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series) of all such
Securities then outstanding by written notice to the Company and the Trustee, plus accrued but
unpaid interest to the date of acceleration. In case an Event of Default specified in Sections
6.01(4) and 6.01(5) shall occur, such amount with respect to all such Securities shall be
automatically due and payable immediately without any declaration or other act on the part of the
Trustee or the Holders of such Securities. After any such acceleration, but before a judgment or
decree based on acceleration is obtained by the Trustee, the registered Holders of a majority in
aggregate principal amount of such Securities then outstanding may rescind and annul such
acceleration (i) if the rescission would not conflict with any judgment or decree, (ii) if all
existing Events of Default have been cured or waived except nonpayment of principal, premium or
interest that has become due solely because of the acceleration, (iii) to the extent the payment of
such interest is lawful, interest on overdue installments of interest and overdue principal, which
has become due otherwise than by such declaration of acceleration, has been paid, (iv) if the
Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances and all other amounts due to the Trustee under Section 7.07
and (v) in the event of the cure or waiver of an Event of Default of the type described in either
Section 6.01(4) or (5), the Trustee shall have received an Officers’ Certificate to the effect that
such Event



 


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of Default has been cured or waived. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.



Subject to Section 7.01, in case an Event of Default shall occur and be continuing with
respect to any series of Securities, the Trustee shall be under no obligation to exercise any of
its rights or powers under this Indenture at the request or direction of any of the Holders of such
series of Securities, unless such Holders shall have offered to the Trustee indemnity satisfactory
to the Trustee. Subject to Section 7.07, the Holders of a majority in aggregate principal amount
of such series of Securities then outstanding will 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 such Securities.



SECTION 6.03. Other Remedies.




If an Event of Default occurs and is continuing with respect to any series of Securities, the
Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of
principal of, or premium, if any, and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture and may take any
necessary action requested of it as Trustee to settle, compromise, adjust or otherwise conclude any
proceedings to which it is a party.



The Trustee may maintain a proceeding even if it does not possess any of the Securities of
such series or does not produce any of them in the proceeding. Any such proceeding instituted by
the Trustee may be brought in its own name and as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation, expenses,
disbursements of the Trustee and its counsel, be for the ratable benefit of the Holders of the
Securities of such series in respect of which such judgment has been recovered. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event
of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative, to
the extent permitted by law. Any costs associated with actions taken by the Trustee under this
Section 6.03 shall be reimbursed to the Trustee by the Company.



SECTION 6.04. Waiver of Past Defaults and Events of Default.




The Holders of a majority in aggregate principal amount of the then outstanding Securities of
such series may on behalf of the Holders of all the affected Securities waive any past Default with
respect to such Securities and its consequences by providing written notice thereof to the Company
and the Trustee; provided the Securities of any series are not then due and payable by reason of a
declaration of acceleration, except a Default (1) in the payment of interest on or the principal of
any Security or (2) in respect of a covenant or provision hereof which under this Indenture cannot
be modified or amended without the consent of the Holder of each outstanding Security affected. In
the case of any such waiver, the Company, the Trustee and the Holders of the Securities will be
restored to their former positions and rights under this Indenture, respectively; provided that no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.



SECTION 6.05. Control by Majority.




The Holders of at least a majority in aggregate principal amount of the outstanding Securities
of any series may 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. However, the
Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may
involve the Trustee



 


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in personal liability, or that the Trustee determines in good faith may be unduly prejudicial
to the rights of Holders of the affected Securities not joining in the giving of such direction and
may take any other action it deems proper that is not inconsistent with any such direction received
from Holders of such Securities.



SECTION 6.06. Limitation on Suits.




No Holder of any Security of any series will have any right to institute any proceeding with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any remedy
hereunder, unless:




(1) the Holder gives the Trustee written notice of a continuing Event of Default with
respect to the Securities of such series,




(2) the Holders of at least 25% in aggregate principal amount of outstanding Securities
of such series of the relevant series make a written request to the Trustee to institute
such proceeding or pursue such remedy as trustee,




(3) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense,




(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity, and




(5) during such 60-day period the Holders of at least a majority in aggregate principal
amount of the outstanding Securities of such series of the relevant series do not give the
Trustee a direction that is inconsistent with the request.



However, such limitations do not apply to a suit instituted by a Holder of any Security for
enforcement of payment of the principal of, and premium, if any, or interest on, such Security on
or after the respective due date expressed in such Security.



SECTION 6.07. No Personal Liability of Directors, Officers, Employees and Stockholders.




No director, manager, trustee, officer, employee, member, partner or stockholder of the
Company shall have any liability for any obligations of the Company under the Securities, or this
Indenture or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Securities by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Securities.
This waiver may not be effective to waive liabilities under the U.S. federal securities laws.



SECTION 6.08. Rights of Holders To Receive Payment.




Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of the principal of or premium, if any, or interest, if any, on such Security or
to bring suit for the enforcement of any such payment, on or after the due date expressed in the
Securities shall not be impaired or affected without the consent of the Holder.



SECTION 6.09. Collection Suit by Trustee.




If an Event of Default with respect to Securities of any series in payment of principal,
premium or interest specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover



 


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judgment in its own name and as trustee of an express trust against the Company (or any other
obligor on the Securities of such series) for the whole amount of unpaid principal and accrued
interest remaining unpaid.



SECTION 6.10. Trustee May File Proofs of Claim.




The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Securities), its creditors or
its property and, unless prohibited by law, shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to distribute the same
after deduction of its charges and expenses to the extent that any such charges and expenses are
not paid out of the estate in any such proceedings and any custodian 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 to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.



Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceedings. All rights of
action and claims under this Indenture or the Securities may be prosecuted and enforced by the
Trustee without the possession of any of the Securities 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 in respect of which such judgment has been
recovered.



SECTION 6.11. Priorities.




If the Trustee collects any money pursuant to this Article Six, it shall pay out the money in
the following order:




FIRST: to the Trustee for amounts due under Section 7.07;




SECOND: to Holders for amounts due and unpaid on the affected Securities for
principal, premium, if any, and interest as to each, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities; and




THIRD: to the Company or, if applicable, any guarantors with respect to any such
series of Securities.



The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.11.


 


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SECTION 6.12. 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 or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.08 or a suit by Holders of more than
10% in principal amount of the Securities then outstanding.



ARTICLE SEVEN




TRUSTEE




SECTION 7.01. Duties of Trustee.




(a) If an Event of Default actually known to a Responsible Officer of the Trustee has occurred
and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such Person’s own affairs.



The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.




(b) Except during the continuance of an Event of Default:



(1) The Trustee need perform only such duties as are specifically set forth in this Indenture
and no others and no implied covenants or obligations shall be read into this Indenture against the
Trustee.



(2) In the absence of bad faith or willful misconduct on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture but, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform on their face to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein). Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers’ Certificate, subject to the
requirement in the preceding sentence, if applicable.



(c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:



(1) This paragraph does not limit the effect of Section 7.01(b).


 


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(2) The Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.



(3) The Trustee shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction of the Holders of a majority in aggregate principal
amount of the Securities received by it pursuant to the terms hereof.



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



(d) Whether or not therein expressly so provided, Sections 7.01(a), (b), (c) and (e) shall
govern every provision of this Indenture that in any way relates to the Trustee.



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



(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by the law.



SECTION 7.02. Rights of Trustee.





Subject to Section 7.01:




(1) The Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated in the
document.




(2) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, or both, which shall conform to the provisions of
Section 10.05. The Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.




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




(4) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or powers; provided
that the Trustee’s conduct does not constitute willful misconduct, negligence or bad faith.




(5) The Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel with respect to legal matters relating to the Securities or this Indenture
shall be full and complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.


 


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




(7) 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 at the sole
cost of the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.




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




(9) The Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture.




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




(11) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.



SECTION 7.03. Individual Rights of Trustee.




The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may make loans to, accept deposits from, perform services for or otherwise deal with
the either of the Company, or any Affiliate thereof, with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. The Trustee, however, shall be subject
to Sections 7.10 and 7.11.



SECTION 7.04. Trustee’s Disclaimer.




The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Securities and it shall not be accountable for the Company’s use
of the proceeds from the sale of Securities or any money paid to the Company pursuant to the terms
of this Indenture and it shall not be responsible for any statement in the Securities or this
Indenture other than its certificate of authentication, except that the Trustee represents that it
is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder and that the



 


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statements made by it in any Statement of Eligibility and Qualification on Form T-1 to be
supplied to the Company will be true and accurate subject to the qualifications set forth therein.



SECTION 7.05. Notice of Defaults.




If a Default occurs with respect to Securities of any series, and such Default is continuing
and if it is known to the Trustee, the Trustee shall give to each Holder of Securities of such
series a notice of the Default within 90 days after it occurs in the manner and to the extent
provided in the TIA and otherwise as provided in this Indenture. Except in the case of a Default
in payment of the principal of or interest on any Security (including payments pursuant to a
redemption or repurchase of the Securities pursuant to the provisions of this Indenture), the
Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Holders.



SECTION 7.06. Reports by Trustee to Holders.




If required by TIA § 313 (a), within 60 days after June 15 of any year, the Trustee shall mail
to each Holder a brief report dated as of such date that complies with TIA § 313(a). The Trustee
also shall comply with TIA § 313(b)(2). The Trustee shall also transmit by mail all reports as
required by TIA § 313(c) and TIA § 313(d).




Reports pursuant to this Section 7.06 shall be transmitted by mail:




(1) to all Holders of Securities, as the names and addresses of such Holders appear on
the Registrar’s books; and




(2) to such Holders of Securities as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for that purpose.



A copy of each report at the time of its mailing to Holders shall be filed with the Commission
and each stock exchange on which the Securities are listed. The Company shall promptly notify the
Trustee when the Securities are listed on any stock exchange or delisted therefrom.



SECTION 7.07. Compensation and Indemnity.




The Company shall pay to the Trustee and Agents from time to time such compensation for their
services hereunder (which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) as shall be agreed upon in writing. The Company
shall reimburse the Trustee and Agents upon request for all reasonable disbursements, expenses and
advances incurred or made by them in connection with the Trustee’s duties under this Indenture,
including the reasonable compensation, disbursements and expenses of the Trustee’s agents and
external counsel, except any expense disbursement or advance as may be attributable to its willful
misconduct, negligence or bad faith.



The Company shall fully indemnify each of the Trustee and any predecessor Trustee for, and
hold each of them harmless against, any and all loss, damage, claim, liability or expense,
including without limitation taxes (other than taxes based on the income of the Trustee or such
Agent) and reasonable attorneys’ fees and expenses incurred by each of them in connection with the
acceptance or performance of its duties under this Indenture including the reasonable costs and
expenses of defending itself against any claim (whether asserted by the Company, any Holder or any
other Person) or liability in connection with the exercise or performance of any of its powers or
duties hereunder (including, without




 


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limitation, settlement costs) or in connection with enforcing the provisions of this Section 7.07.
The Trustee or Agent shall notify the Company in writing promptly of any claim of which a
Responsible Officer of the Trustee has actual knowledge asserted against the Trustee or Agent for
which it may seek indemnity; provided that the failure by the Trustee or Agent to so notify the
Company shall not relieve the Company of its obligations hereunder except to the extent the Company
is actually prejudiced thereby.



The Trustee shall have the right to employ separate counsel in any such action or proceeding
and participate in the investigation and defense thereof, and the Company shall pay the reasonable
fees and expenses of such separate counsel; provided, however, that the Trustee may only employ
separate counsel at the expense of the Company if in the judgment of the Trustee (i) a conflict of
interest exists by reason of common representation or (ii) there are legal defenses available to
the Trustee that are different from or are in addition to those available to the Company or if all
parties commonly represented do not agree as to the action (or inaction) of counsel.



Notwithstanding the foregoing, the Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability to have been incurred by the Trustee through its own
willful misconduct, negligence or bad faith.



To secure the payment obligations of the Company in this Section 7.07, the Trustee shall have
a lien prior to the Securities on all money or property held or collected by the Trustee and such
money or property held in trust to pay principal of and interest on particular Securities.



The obligations of the Company under this Section 7.07 to compensate and indemnify the
Trustee, Agents and each predecessor Trustee and to pay or reimburse the Trustee, Agents and each
predecessor Trustee for expenses, disbursements and advances shall be the liability of the Company
and shall survive the resignation or removal of the Trustee and the satisfaction, discharge or
other termination of this Indenture, including any termination or rejection hereof under any
Bankruptcy Law.



When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(4) or (5) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.



For purposes of this Section 7.07, the term “Trustee” shall include any trustee appointed
pursuant to this Article Seven.



SECTION 7.08. Replacement of Trustee.





The Trustee shall comply with Section 313(b) of the TIA, to the extent applicable.



The Trustee may resign by so notifying the Company in writing no later than 15 Business Days
prior to the date of the proposed resignation. The Holders of a majority in principal amount of
the outstanding Securities of any series may remove the Trustee of such series by notifying the
Company and the removed Trustee of such series in writing and may appoint a successor Trustee with
the Company’s written consent, which consent shall not be unreasonably withheld. The Company may
remove the Trustee at its election if:




(1) the Trustee fails to comply with Section 7.10 of this Indenture or Section 310 of
the TIA;




(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief entered
with respect to the Trustee under Bankruptcy Law;


 


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(3) a receiver or other public officer takes charge of the Trustee or its property;




(4) the Trustee otherwise becomes incapable of acting.



If the Trustee resigns or is removed with respect to the Securities of one or more series or
if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee 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 7.10.



If a successor Trustee with respect to the Securities of any series does not take office
within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of a majority in principal amount of the outstanding Securities of such series may
petition at the expense of the Company any court of competent jurisdiction, in the case of the
Trustee, for the appointment of a successor Trustee.



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



A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately following such delivery, the retiring Trustee shall,
subject to its rights under Section 7.07, transfer all property held by it as Trustee to the
successor Trustee, the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each Holder of the affected
Securities. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.



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


 


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SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.




If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another corporation, subject to Section 7.10, the successor
corporation without any further act shall be the successor Trustee; provided such entity shall be
otherwise qualified and eligible under this Article Seven.



SECTION 7.10. Eligibility; Disqualification.




This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5) in every respect. The Trustee (together with its corporate parent) shall have a
combined capital and surplus of at least $50 million as set forth in the most recent applicable
published annual report of condition. The Trustee shall comply with TIA § 310(b), including the
provision in § 310(b)(1); provided, however, that there shall be excluded from the operation of TIA
§ 310(b)(1) any indenture or indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA § 310(b)(1) are met.



SECTION 7.11. Preferential Collection of Claims Against Company.




The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311 (a) to the
extent indicated therein.



SECTION 7.12. Paying Agents.




The Company shall cause each Paying Agent other than the Trustee to execute and deliver to it
and the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 7.12:




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




(B) that it will at any time during the continuance of any Event of Default, upon
written request from the Trustee, deliver to the Trustee all sums so held in trust by it
together with a full accounting thereof; and




(C) that it will give the Trustee written notice within three (3) Business Days of any
failure of the Company (or by any obligor on the Securities) in the payment of any
installment of the principal of, premium, if any, or interest on, the Securities when the
same shall be due and payable.



ARTICLE EIGHT




MODIFICATION AND WAIVER




SECTION 8.01. Without Consent of Holders.




The Company and the Trustee may modify and amend this Indenture without the consent of any
Holder, for any of the following purposes:


 


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(i) to evidence the assumption by a Successor Company of the covenants in this
Indenture and series of Securities in compliance with Section 5.01;




(ii) to add to the covenants of the Company for the benefit of the Holders of the
Securities or to surrender any right or power conferred upon the Company;




(iii) to add additional Events of Default;




(iv) to establish the form or terms of a new series of Securities under this
Indenture as permitted by Section 2.01 and Section 2.02;




(v) to provide for uncertificated Securities in addition to or in place of
certificated Securities;




(vi) to comply with any requirement of the Commission in connection with the
qualification of this Indenture under the Trust Indenture Act;




(vii) to evidence and provide the acceptance of the appointment of a successor
Trustee under Section 7.09;




(viii) to cure any ambiguity, defect or inconsistency in this Indenture or to
correct a manifest error;




(ix) to guarantee or secure the Securities under this Indenture;




(x) to make any change that does not adversely affect the interests of any Holder of
any series of the Securities




(xi) to release any guarantee in accordance with the terms of the Indenture; or




(xii) 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.



SECTION 8.02. With Consent of Holders.




(a) This Indenture may be amended with the consent of the registered Holders of a majority in
aggregate principal amount of the then outstanding Securities of each series affected by the
amendment voting as one class (including consents obtained in connection with a tender offer or
exchange offer for such Securities), and any past Default or compliance with any provisions may
also be waived (except a Default in the payment of principal, premium or interest and under Section
8.02(b) below) with the consent of the registered Holders of at least a majority in aggregate
principal amount of the then outstanding Securities of the affected series voting as one class.



(b) However, without the consent of each Holder of an outstanding Security of the affected
series, no amendment may,


 


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(i) change the Stated Maturity of the Securities or the time when the Securities may
or shall be redeemed;




(ii) reduce the principal amount of, or any premium or interest rate on, or any
premium payable upon the redemption of any Security;




(iii) extend the time for Payment of interest on the Securities;




(iv) impair the right to institute suit for the enforcement of any payment on or
after the stated maturity of any Security (or in the case of redemption, on or after the
redemption date of any Security);




(v) affect adversely the terms, if any, of conversion of any Security into the
Company’s Capital Stock or other securities or of any other corporation; or




(vi) reduce the percentage in principal amount of the then outstanding Securities of
any series, the consent of whose Holders is required for any such amendment, supplement
or any waiver (in compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences) provided for in this Indenture; and




(vii) modify any of the foregoing provisions or the provisions for the waiver of
certain covenants and Defaults, except to increase any applicable percentage of the
aggregate principal amount of outstanding Securities, the consent of the Holders of which
is required or to provide with respect to any particular series the right to condition
the effectiveness of any amendment, supplement or waiver as to that series on the consent
of the Holders of a specified percentage of the aggregate principal amount of outstanding
Securities of such series or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each outstanding
Security affected thereby.



(c) The consent of the Holders of the Securities shall not be necessary to approve the
particular form of any proposed amendment. It shall be sufficient if such consent approves the
substance of the proposed amendment.



(d) After an amendment that requires the consent of the Holders of the affected Securities
becomes effective, the Company shall mail to each registered Holder of the affected Securities at
such Holder’s address appearing in the security register a notice briefly describing such
amendment. However, the failure to give such notice to all Holders of such Securities, or any
defect therein, shall not impair or affect the validity of the amendment.



(e) Upon the written request of the Company accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the receipt by the Trustee of evidence
reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid and upon receipt
by the Trustee of the documents described in Section 8.06, the Trustee shall join with the Company
in the execution of such supplemental indenture unless such supplemental indenture affects the
Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may, but
shall not be obligated to, enter into such supplemental indenture.



SECTION 8.03. Compliance with Trust Indenture Act.



Every amendment or supplement to this Indenture or the Securities shall comply with the TIA as
then in effect.


 


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SECTION 8.04. Revocation and Effect of Consents.




(a) After an amendment, supplement, waiver or other action becomes effective, a consent to it
by a Holder of a Security is a continuing consent conclusive and binding upon such Holder and every
subsequent Holder of the same Security or portion thereof, and of any Security issued upon the
transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is
not made on any such Security.



(b) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record
date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether
or not such Persons continue to be Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date unless the consent of the requisite
number of Holders has been obtained.



SECTION 8.05. Notation on or Exchange of Securities.




If an amendment, supplement, or waiver changes the terms of a Security, the Trustee (in
accordance with the specific written direction of the Company) shall request the Holder of the
Security (in accordance with the specific written direction of the Company) to deliver it to the
Trustee. In such case, the Trustee shall place an appropriate notation on the Security about the
changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate
a new Security that reflects the changed terms. Failure to make the appropriate notation or issue
a new Security shall not affect the validity and effect of such amendment, supplement or waiver.



SECTION 8.06. Trustee To Sign Amendments, etc.




The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article
Eight if the amendment, supplement or waiver does not affect the rights, duties, liabilities or
immunities of the Trustee. If it does affect the rights, duties, liabilities or immunities of the
Trustee, the Trustee may, but need not, sign such amendment, supplement or waiver. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be entitled to receive and,
subject to Section 7.01, shall be fully protected in relying upon an Officers’ Certificate and an
Opinion of Counsel stating, in addition to the matters required by Section 10.04, that such
amendment, supplement or waiver is authorized or permitted by this Indenture and is a legal, valid
and binding obligation of the Company, enforceable against the Company in accordance with its terms
(subject to customary exceptions).



ARTICLE NINE




DISCHARGE OF INDENTURE; DEFEASANCE




SECTION 9.01. Discharge of Liability on Securities; Defeasance.




(a) This Indenture shall be discharged and shall cease to be of further effect as to all
Securities issued hereunder when:




(i) either (x) all the Securities that have been authenticated, except lost, stolen or
destroyed Securities that have been replaced or paid and Securities for whose payment money
has


 


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been deposited in trust and thereafter repaid to the Company, have been delivered to the
Trustee for cancellation; or (y) all the Securities that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the mailing of a notice of
redemption or otherwise or will become due and payable within one year and the Company has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders of the affected Securities, cash in U.S. dollars,
non-callable Government Obligations, or a combination of cash in U.S. dollars and
non-callable Government Obligations, in amounts as will be sufficient without consideration
of any reinvestment of interest, to pay and discharge the entire indebtedness on the
Securities not delivered to the Trustee for cancellation for principal, premium, if any, and
accrued interest to the date of maturity or redemption;




(ii) the Company or any guarantor of such Securities has paid or caused to be paid all
sums payable by it under this Indenture; and




(iii) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Securities at maturity or
the redemption date.



In addition, the Company shall deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that (i) all conditions precedent to satisfaction and discharge have been satisfied
at the cost and expense of the Company, (ii) no Default with respect to the Securities has occurred
and is continuing and (iii) such deposit does not result in a breach or violation of, or constitute
a default under, the Indenture or any other agreement or instrument to which the Company is a
party.



(b) Subject to Sections 9.01(c) and 9.02, the Company may at any time elect to terminate some
or all of its obligations and all of the obligations of a guarantor, if any, under the outstanding
Securities and this Indenture (hereinafter, “Legal Defeasance”) except for obligations
under Sections 2.04, 2.07 and 2.08 and obligations under the TIA. The Company may terminate its
obligations under Section 6.01(4) and (5) (with respect to Restricted Subsidiaries) on a date the
conditions set forth in Section 9.02 are satisfied (hereinafter, “Covenant Defeasance”) and
thereafter, any omission to comply with any covenant referred to above will not constitute a
Default or an Event of Default with respect to the Securities. The Company may exercise its Legal
Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option.



(c) If the Company exercises its Legal Defeasance option, payment of the Securities, may not
be accelerated because of an Event of Default with respect thereto.



(d) If the Company exercises its Legal Defeasance option, each guarantor, if any, shall be
released from all of its obligations under this Indenture.



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



(f) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.04,
2.06, 2.07, 2.08, 7.07, 9.05 and 9.06 shall survive until such time as the Securities have been
paid in full. Thereafter, the Company’s obligations in Sections 7.07, 9.05 and 9.06 shall survive.


 


-37-









 





SECTION 9.02. Conditions to Defeasance.




The Legal Defeasance option or the Covenant Defeasance option, in Section 9.01 may be
exercised only if:




(a) the Company irrevocably deposits in trust with the Trustee money or Government
Obligations, or a combination thereof, for the payment of principal of and interest on the
Securities to maturity or redemption;




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




(c) 123 days pass after the deposit is made and during the 123-day period no Default
described in Section 6.01(5) occurs with respect to the Company or any other Person making
such deposit which is continuing at the end of the period;




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




(e) such deposit does not constitute a default under any other material agreement or
instrument binding on the Company;




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




(g) in the case of an election of Legal Defeasance under Section 9.01, the Company
delivers to the Trustee an Opinion of Counsel stating that:




(1) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or




(2) since the date of this Indenture there has been a change in the applicable U.S.
Federal income tax law,




to the effect, in either case, that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the affected Securities will not recognize income, gain or loss
for U.S. Federal income tax purposes as a result of such Legal Defeasance election and will
be subject to U.S. Federal income tax on the same amounts, in the same manner and at the
same time as would have been the case if such election has not occurred;




(h) in the case of an election of Covenant Defeasance under Section 9.01, the Company
delivers to the Trustee an Opinion of Counsel to the effect that the Holders of the affected
Securities will not recognize income, gain or loss for U.S. Federal income tax purposes as
a result of such Covenant Defeasance and will be subject to U.S. Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such
election had not occurred; and


 


-38-









 






(i) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to an election under 9.01 have been
complied with as required by this Indenture.



SECTION 9.03. Deposited Money and Government Obligations To Be Held in Trust; Other Miscellaneous Provisions.




All money and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 9.02(a) in respect of the outstanding 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 Paying Agent, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal, premium, if any, and
accrued interest, but such money 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 Government Obligations deposited pursuant to Section 9.02(a) or the
principal, premium, if any, 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 the outstanding Securities.



Anything in this Article Nine to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon a request of the Company any money or Government
Obligations held by it as provided in Section 9.02(a) 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 an equivalent Legal Defeasance or Covenant Defeasance.



SECTION 9.04. Reinstatement.




If the Trustee or Paying Agent is unable to apply any money or Government Obligations in
accordance with Section 9.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to this Article Nine until such
time as the Trustee or Paying Agent is permitted to apply all such money or Government Obligations
in accordance with Section 9.01; provided that if the Company has made any payment of principal of,
premium, if any, or accrued interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or Government Obligations held by the Trustee or Paying Agent.



SECTION 9.05. Moneys Held by Paying Agent.




In connection with the satisfaction and discharge of this Indenture, all moneys then held by
any Paying Agent under the provisions of this Indenture shall, upon written demand of the Company,
be paid to the Trustee, or if sufficient moneys have been deposited pursuant to Section 9.02(a), to
the Company upon a request of the Company, and thereupon the Paying Agent shall be released from
all further liability with respect to such moneys.


 


-39-









 





SECTION 9.06. Moneys Held by Trustee.




Any moneys deposited with the Trustee or any Paying Agent or then held by the Company in trust
for the payment of the principal of, or premium, if any, or interest on any Security that are
not applied but remain unclaimed by the Holder of such Security for two years after the date
upon which the principal of, or premium, if any, or interest on such Security shall have
respectively become due and payable shall be repaid to the Company upon a request of the Company,
or if such moneys are then held by the Company in trust, such moneys shall be released from such
trust; and the Holder of such Security entitled to receive such payment shall thereafter, as an
unsecured general creditor, look only to the Company for the payment thereof, and all liability of
the Trustee or the Paying Agent with respect to such trust money shall thereupon cease; provided
that the Trustee or the Paying Agent, before being required to make any such repayment, may, at the
expense of the Company either mail to each Holder affected, at the address shown in the register of
the Securities maintained by the Registrar pursuant to Section 2.04, or cause to be published once
a week for two successive weeks, in a newspaper published in the English language, customarily
published each Business Day and of general circulation in the City of New York, New York, a 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 mailing or publication, any unclaimed balance of such moneys
then remaining will be repaid to the Company. After payment to the Company or the release of any
money held in trust by the Company, Holders entitled to the money must look only to the Company for
payment as general creditors unless applicable abandoned property law designates another Person.



ARTICLE TEN




MISCELLANEOUS




SECTION 10.01. Trust Indenture Act Controls.




If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required provision shall control. If
any provision of this Indenture modifies any TIA provision that may be so modified, such TIA
provision shall be deemed to apply to this Indenture as so modified. If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.



The provisions of TIA §§ 310 through 317 that impose duties on any Person (including the
provisions automatically deemed included unless expressly excluded by this Indenture) are a part of
and govern this Indenture, whether or not physically contained herein.



SECTION 10.02. Notices.




Except for notice or communications to Holders, any notice or communication shall be given in
writing and when received if delivered in person, when receipt is acknowledged if sent by
facsimile, on the next Business Day if timely delivered by a nationally recognized courier service
that guarantees overnight delivery or two Business Days after deposit if mailed by first-class
mail, postage prepaid, addressed as follows:




If to the Company:




Airgas, Inc.

259 North Radnor-Chester Rd.

Radnor, Pennsylvania 19087-5283


 


-40-









 






Attn: General Counsel

Fax: (610) 225-3271




With a copy to:




Cravath Swaine & Moore LLP

825 Eighth Avenue

New York, New York 10019

Attn: Ronald Cami

Fax: (212) 474-3700




If to the Trustee, Registrar or Paying Agent:




Mailing Address:

The Bank of New York Mellon

101 Barclay Street

New York, New York 10286

Attn.: Corporate Trust Administration — Floor 8W

Fax: (212) 815-5704



Such notices or communications shall be effective when received and shall be sufficiently
given if so given within the time prescribed in this Indenture.



The Company or the Trustee by written notice to the others may designate additional or
different addresses for subsequent notices or communications.



Any notice or communication mailed to a Holder shall be mailed to such Holder by first-class
mail, postage prepaid, at his address shown on the register kept by the Registrar.



Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication to a Holder is mailed in
the manner provided above, it shall be deemed duly given, whether or not the addressee receives it.



In case by reason of the suspension of regular mail service, or by reason of any other cause,
it shall be impossible to mail any notice as required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute a sufficient
mailing of such notice.



The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods; provided, however, that (a) the party providing such written instructions, subsequent to
such transmission of written instructions, shall provide the originally executed instructions or
directions to the Trustee in a timely manner, and (b) such originally executed instructions or
directions shall be signed by an authorized representative of the party providing such instructions
or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion elects to act upon
such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.
The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly
from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The party
providing electronic instructions agrees to assume all risks arising out of the use of such
electronic methods to submit




 


-41-











 




instructions and directions to the Trustee, including without limitation the risk of the Trustee
acting on unauthorized instructions, and the risk or interception and misuse by third parties.



Notwithstanding anything to the contrary contained herein, as long as the Securities are in
the form of a Global Security, notice to the Holders may be made electronically in accordance with
procedures of the Depositary.



SECTION 10.03. Communications by Holders with Other Holders.




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



SECTION 10.04. Certificate and Opinion as to Conditions Precedent.




Upon any request or application by the Company to the Trustee to take any action under this
Indenture, if so requested by the Trustee, the Company shall furnish to the Trustee:




(1) an Officers’ Certificate (which shall include the statements set forth in Section
10.05 below) stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and




(2) an Opinion of Counsel (which shall include statements to a similar effect as those
set forth in Section 10.05(1), (2) and (3) below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with (to the extent such
conditions precedent involve legal conclusions).



SECTION 10.05. Statements Required in Certificate and Opinion.




Each certificate with respect to compliance by or on behalf of the Company with a condition or
covenant provided for in this Indenture shall include:




(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




(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 such Person, it or he has made such examination
or investigation as is necessary to enable it or 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 or not, in the opinion of such Person, such covenant or
condition has been complied with.



SECTION 10.06. Rules by Trustee and Agents.




The Trustee may make reasonable rules for action by or meetings of Holders. The Registrar and
Paying Agent may make reasonable rules for their functions.


 


-42-









 





SECTION 10.07. Legal Holidays.




A “Legal Holiday” is a Saturday, a Sunday or other day on which (i) commercial banks
in the City of New York are authorized or required by law to close or (ii) the New York Stock
Exchange is not open for trading. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.



SECTION 10.08. Governing Law.




This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.



SECTION 10.09. No Adverse Interpretation of Other Agreements.




This Indenture may not be used to interpret another indenture, loan, security or debt
agreement of the Company. No such indenture, loan, security or debt agreement may be used to
interpret this Indenture.



SECTION 10.10. Successors.




All agreements of the Company in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee, any additional trustee and any Paying Agents in this
Indenture shall bind its successor.



SECTION 10.11. Multiple Counterparts.




The parties may sign multiple counterparts of this Indenture. Each signed counterpart shall
be deemed an original, but all of them together represent one and the same agreement.



SECTION 10.12. Table of Contents, Headings, etc.




The table of contents, cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.



SECTION 10.13. Separability.




Each provision of this Indenture shall be considered separable and if for any reason any
provision which is not essential to the effectuation of the basic purpose of this Indenture or the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



SECTION 10.14. Waiver of Jury Trial.




EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


-43-









 





SECTION 10.15. Force Majeure.




In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.



[Signature Pages Follow]




 


-44-









 







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



	 	 	 	 	 
	 	AIRGAS, INC.

 	 
	 	By:  	/s/  Joseph C. Sullivan
 	 
	 	 	Name:  	Joseph C. Sullivan 	 
	 	 	Title:  	Vice-President & Treasurer 	 



 


S-1









 





	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as Trustee

 	 
	 	By:  	                      /s/ Mary Miselis
 	 
	 	 	Name:  	Mary Miselis 	 
	 	 	Title:  	Vice President 	 



 


S-2









 





	 	 	 	 	 



EXHIBIT A-1





[If the Security is an Original Issue Discount Security, insert— THIS SECURITY IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 et seq. OF THE INTERNAL REVENUE CODE. FOR EACH
$[1,000] PRINCIPAL AMOUNT AT MATURITY OF THIS SECURITY, THE ISSUE PRICE IS $[ ] AND THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT IS $[ ]. THE ISSUE DATE OF THIS SECURITY IS [ ] AND THE YIELD TO MATURITY
IS [ ]%.]



CUSIP




AIRGAS, INC.




	 	 	 	 	 
	No.

	 	 	$	 






[          ] % [SECURITY] DUE 20[__]




AIRGAS, INC., a Delaware corporation, as issuer (the “Company”), for value received,
promises to pay to CEDE & CO. or registered assigns the principal sum of [          ] on [               ], 20[     ].




Interest Payment Dates: [          ] and [          ].




Record Dates: [          ] and [          ].



Reference is made to the further provisions of this Security contained herein, which will for
all purposes have the same effect as if set forth at this place.


 


A-1









 





IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile
by one of its duly authorized officers.



	 	 	 	 	 
	 	AIRGAS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


A-2









 





	 	 	 	 	 



Certificate of Authentication





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



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 



Dated:




 


A-3









 







[FORM OF REVERSE OF SECURITY]




AIRGAS, INC.




[          ]% SECURITY DUE 20[     ]





1. Interest. AIRGAS, INC., a Delaware corporation, as issuer (the “Company”),
promises to pay, until the principal hereof is paid or made available for payment, interest on the
principal amount set forth on the face hereof at a rate of [          ]% per annum. Interest hereon will
accrue from and including the most recent date to which interest has been paid or, if no interest
has been paid, from and including [     ] to but excluding the date on which interest is paid.
Interest shall be payable in arrears on each [     ] and [     ], commencing [               ]. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months. The Company shall pay
interest on overdue principal and on overdue interest (to the full extent permitted by law) at the
rate borne by the Securities.



2. Method of Payment. The Company will pay interest hereon (except defaulted
interest) to the Persons who are registered Holders at the close of business on [     ] and [     ]
immediately preceding the interest payment date (whether or not a Business Day). Holders must
surrender Securities to a Paying Agent to collect principal payments. The Company will pay to the
Paying Agent principal and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. If a Holder has given wire
transfer instructions to the Company, the Company may pay, or cause to be paid by the Paying Agent,
all principal, interest on that Holder’s Securities in accordance with those instructions. All
other payments on the Securities will be made at the office or agency of the Paying Agent and
Registrar unless the Company elects to make interest payments by check mailed to the Holders at
their address set forth in the register of Holders.



3. Paying Agent and Registrar. Initially, The Bank of New York Mellon (the
“Trustee”) will act as a Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to the Holders. The Company or any of its Subsidiaries may act
as Paying Agent or Registrar.



4. Indenture. This Security is on the series designated on the fact hereof [limited
in aggregate principal amount to $                    ]. This Security is one of a duly authorized issue of
securities of the Company issued and to be issued in one or more series under an Indenture dated as
of September 11, 2009 (the “Indenture”, which term shall have the meaning assigned to it in
such instrument) between the Company and the Trustee. This is one of an issue of Securities of the
Company issued, or to be issued, under the Indenture. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture
Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended from time to time (the “Trust Indenture
Act”). The Securities are subject to all such terms, and Holders are referred to the Indenture
and the Trust Indenture Act for a statement of them. Capitalized and certain other terms used
herein and not otherwise defined have the meanings set forth in the Indenture.



[5. If applicable, insert — Optional Redemption. The Securities of this series are
subject to redemption [if applicable, insert — [at any time] [on or after                ,
20 __], as
a whole or in part, at the election of the Company at the Redemption Price equal to                     ]. The
Company may provide in such notice that payment of such price and performance of the Company’s
obligations with respect to such redemption or purchase may be performed by another Person. Any
such notice may, at the Company’s discretion, be subject to the satisfaction of one or more
conditions precedent.


 


A-4









 





[6. If applicable, insert — Redemption Procedures. The Trustee will select Securities
called for redemption on a pro rata basis or on as nearly a pro rata basis as is practicable
(subject to procedures of the Depository); provided that no Securities of $[               ] or less
shall be redeemed in part. A new Security of this series in principal amount equal to the
un-redeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of
the original Security. Securities called for redemption pursuant to this paragraph 6 hereto become
due on the date fixed for redemption. On and after the date fixed for redemption, interest stops
accruing on Securities or portions of them called for redemption.]



[7. If applicable, insert — Notice of Redemption. Notices of redemption shall be
mailed by first class mail at least 30 but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at its registered address. If any Security of this series is
to be redeemed in part only, the notice of redemption that relates to such Security shall state the
portion of the principal amount thereof to be redeemed.]



[8. 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.]



[9. If the Security is an Original Issue Discount Security, insert — If an Event of Default
with respect to the 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 and overdue 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 interest, if any, on the Securities of this series shall
terminate.]



10. Guarantees. The payment by the Company of the principal of, and premium and
interest on, the Securities is fully and unconditionally guaranteed on a joint and several basis by
each of the guarantors to the extent set forth in the Indenture



11. Denominations, Transfer, Exchange. The Securities of this series are in
registered form without coupons and in denominations of $[     ] and integral multiples of $[               ]. A Holder may transfer or exchange Securities of this series in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay to it any taxes and fees required by law or permitted by the
Indenture.



12. Persons Deemed Owners. The registered Holder of this Security may be treated as
the owner of this Security for all purposes.



13. Unclaimed Money. If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its
written request. After that, Holders entitled to the money must look to the Company for payment as
general creditors unless an “abandoned property” law designates another Person.



14. Amendment, Supplement, Waiver, Etc. The Company and the Trustee (if a party
thereto) may, without the consent of the Holders of any outstanding Securities, amend, waive or
supplement the Indenture or the Securities for certain specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies, maintaining the qualification of the
Indenture under the Trust Indenture Act, as amended, providing for the assumption by a successor to
the Company of its obligations



 


A-5









 





under the Indenture and making any change that does not materially and adversely affect the
rights of any Holder of each series to be affected. Other amendments and modifications of the
Indenture or the Securities of each series may be made by the Company and the Trustee with the
consent of the Holders of Securities of such series of not less than a majority of the aggregate
principal amount of the outstanding Securities of such series, subject to certain exceptions
requiring the consent of the Holders of the particular Securities of such series to be affected.



15. Successor Corporation. When a successor corporation assumes all the obligations
of its predecessor under the Securities and the Indenture and the transaction complies with the
terms of Article Five of the Indenture, the predecessor corporation will, except as provided in
Article Five, be released from those obligations.



16. Defaults and Remedies. Events of Default are set forth in the Indenture. Subject
to certain limitations in the Indenture, if an Event of Default (other than an Event of Default
specified in Sections 6.01(4) and 6.01(5) of the Indenture) with respect to the Securities of this
series occurs and is continuing, then, and in each and every such case, either the Trustee, by
notice in writing to the Company, or the Holders of not less than 25% of the principal amount of
the Securities of this series then outstanding, by notice in writing to the Company and the
Trustee, may, and the Trustee at the request of such Holders shall, declare due and payable, if not
already due and payable, the principal of and any accrued and unpaid interest on all of the
Securities of this series; and upon any such declaration all such amounts upon such Securities
shall become and be immediately due and payable, anything in the Indenture or in the Securities to
the contrary notwithstanding. If an Event of Default specified in Sections 6.01(4) and 6.01(5) of
the Indenture occurs, then the principal of and any accrued and unpaid interest on all of the
Securities of this series shall immediately become due and payable without any declaration or other
act on the part of the Trustee or any Holder. Holders may not enforce the Indenture or the
Securities of this series except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities of this series. Subject to
certain limitations, Holders of a majority in principal amount of the then outstanding Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default (except a Default in payment of principal, premium, if
any, or interest on the Securities of this series or a Default in the observance or performance of
any of the obligations of the Company under Article Five of the Indenture) if it determines that
withholding notice is in their best interests.



17. Trustee Dealings with Company. Subject to certain limitations imposed by the
Trust Indenture Act, the Trustee, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not Trustee.



18. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, agent, member or stockholder or Affiliate of the Company, as such, shall
have any liability for any obligations of the Company under the Securities of this series, the
Indenture or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Securities of this series by accepting a Security of this series waives
and releases all such liabilities. The waiver and release are part of the consideration for
issuance of the Securities of this series.



19. Discharge. The Company’s obligations pursuant to the Indenture with respect to
Securities of this series will be discharged, except for obligations pursuant to certain sections
thereof, subject to the terms of the Indenture, upon the payment of all the Securities of this
series or upon the irrevocable deposit with the Trustee of United States dollars or Government
Obligations sufficient to pay when due principal of and interest on the Securities of this series
to maturity or redemption.


 


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20. Authentication. This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.



21. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. The Trustee and the Company agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding arising out of or
relating to the Indenture or the Securities of this series.



22. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by the entireties), JT TEN
(=joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:




If to the Company:


Airgas, Inc.

259 North Radnor-Chester Rd.

Radnor, Pennsylvania 19087-5283

Attn: General Counsel

Fax: (610) 225-3271





With a copy to:


Cravath Swaine & Moore LLP

825 Eighth Avenue

New York, New York 10019

Attn: Ronald Cami

Fax: (212) 474-3700




 


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ASSIGNMENT





I or we assign and transfer this Security to:



 
(Insert assignee’s social security or tax I.D. number)




 
(Print or type name, address and zip code of assignee)





and irrevocably appoint:



Agent to transfer this Security on the books of the Company. The Agent may substitute another
to act for him.



	 	 	 	 	 	 	 
	Date:
___________________________

	 	Your Signature:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	(Sign exactly as your name appears
on the other side of this
Security)






Signature
Guarantee: _________________________________________



SIGNATURE GUARANTEE




Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.




 


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