EX-4.16






Exhibit 4.16




 





TENNECO INC.




AND




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., TRUSTEE

 






INDENTURE


 






Dated as of                     , 2009




Subordinated Debt Securities




 





 









 





TABLE OF CONTENTS







	 	 	 	 	 
	 	 	Page
	ARTICLE 1
	 	 	 	 
	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Compliance Certificates and Opinions
	 	 	14	 
	Section 1.3 Form of Documents Delivered to Trustee
	 	 	14	 
	Section 1.4 Acts of Holders
	 	 	15	 
	Section 1.5 Notices, Etc., to Trustee and Company
	 	 	16	 
	Section 1.6 Notice to Holders of Securities; Waiver
	 	 	16	 
	Section 1.7 Language of Notices, Etc
	 	 	17	 
	Section 1.8 Conflict with Trust Indenture Act
	 	 	17	 
	Section 1.9 Effect of Headings and Table of Contents
	 	 	17	 
	Section 1.10 Successors and Assigns
	 	 	17	 
	Section 1.11 Separability Clause
	 	 	17	 
	Section 1.12 Benefits of Indenture
	 	 	17	 
	Section 1.13 Governing Law
	 	 	18	 
	Section 1.14 Legal Holidays
	 	 	18	 
	Section 1.15 Waiver of Jury Trial
	 	 	18	 
	Section 1.16 Force Majeure
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	SECURITY FORMS
	 	 	 	 
	 
	 	 	 	 
	Section 2.1 Forms Generally
	 	 	18	 
	Section 2.2 Form of Trustee’s Certificate of Authentication
	 	 	19	 
	Section 2.3 Securities in Global Form
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	THE SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 3.1 Amount Unlimited; Issuable in Series
	 	 	20	 
	Section 3.2 Denominations
	 	 	22	 
	Section 3.3 Execution, Authentication, Delivery and Dating
	 	 	22	 
	Section 3.4 Temporary Securities
	 	 	23	 
	Section 3.5 Registration, Transfer and Exchange
	 	 	24	 
	Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	27	 
	Section 3.7 Payment of Interest; Interest Rights Preserved
	 	 	27	 
	Section 3.8 Persons Deemed Owners
	 	 	28	 
	Section 3.9 Cancellation
	 	 	29	 
	Section 3.10 Computation of Interest
	 	 	29	 
	Section 3.11 CUSIP Numbers
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	SATISFACTION AND DISCHARGE
	 	 	 	 






-i-









 





TABLE OF CONTENTS

(continued)







	 	 	 	 	 
	 	 	Page
	 
	Section 4.1 Satisfaction and Discharge of Indenture
	 	 	30	 
	Section 4.2 Application of Trust Money
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	REMEDIES
	 	 	 	 
	 
	 	 	 	 
	Section 5.1 Events of Default
	 	 	31	 
	Section 5.2 Acceleration of Maturity; Rescission and Annulment
	 	 	32	 
	Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	34	 
	Section 5.4 Trustee May File Proofs of Claim
	 	 	34	 
	Section 5.5 Trustee May Enforce Claims Without Possession of Securities
	 	 	35	 
	Section 5.6 Application of Money Collected
	 	 	35	 
	Section 5.7 Limitation on Suits
	 	 	36	 
	Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest
	 	 	36	 
	Section 5.9 Restoration of Rights and Remedies
	 	 	37	 
	Section 5.10 Rights and Remedies Cumulative
	 	 	37	 
	Section 5.11 Delay or Omission Not Waiver
	 	 	37	 
	Section 5.12 Control by Holders of Securities
	 	 	37	 
	Section 5.13 Waiver of Past Defaults
	 	 	38	 
	Section 5.14 Undertaking for Costs
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 6.1 Certain Duties and Responsibilities
	 	 	39	 
	Section 6.2 Notice of Defaults
	 	 	40	 
	Section 6.3 Certain Rights of Trustee
	 	 	40	 
	Section 6.4 Not Responsible for Recitals or Issuance of Securities
	 	 	42	 
	Section 6.5 May Hold Securities
	 	 	42	 
	Section 6.6 Money Held in Trust
	 	 	42	 
	Section 6.7 Compensation and Reimbursement
	 	 	43	 
	Section 6.8 Disqualifications; Conflicting Interests
	 	 	43	 
	Section 6.9 Corporate Trustee Required; Eligibility
	 	 	43	 
	Section 6.10 Resignation and Removal; Appointment of Successor
	 	 	44	 
	Section 6.11 Acceptance of Appointment by Successor
	 	 	45	 
	Section 6.12 Merger, Conversion, Consolidation or Succession to Business
	 	 	46	 
	Section 6.13 Preferential Collection of Claims Against Company
	 	 	47	 
	Section 6.14 Appointment of Authenticating Agent
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	 	 
	 
	Section 7.1 Company To Furnish Trustee Names and Addresses of Holders
	 	 	49	 







-ii-









 





TABLE OF CONTENTS

(continued)








	 	 	 	 	 
	 	 	Page
	 
	Section 7.2 Preservation of Information; Communications to Holders
	 	 	49	 
	Section 7.3 Reports by Trustee
	 	 	50	 
	Section 7.4 Reports by the Company
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
	 	 	 	 
	 
	 	 	 	 
	Section 8.1 Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions
	 	 	51	 
	Section 8.2 Rights and Duties of Successor Corporation
	 	 	52	 
	Section 8.3 Officers’ Certificate and Opinion of Counsel
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 9


SUPPLEMENTAL INDENTURE
	 	 	 	 
	 
	 	 	 	 
	Section 9.1 Supplemental Indentures without Consent of Holders
	 	 	52	 
	Section 9.2 Supplemental Indentures with Consent of Holders
	 	 	53	 
	Section 9.3 Execution of Supplemental Indentures
	 	 	54	 
	Section 9.4 Effect of Supplemental Indentures
	 	 	55	 
	Section 9.5 Conformity with Trust Indenture Act
	 	 	55	 
	Section 9.6 Reference in Securities to Supplemental Indentures
	 	 	55	 
	 
	ARTICLE 10
	 	 	 	 
	COVENANTS
	 	 	 	 
	 
	Section 10.1 Payment of Principal, Premium, if any, and Interest
	 	 	55	 
	Section 10.2 Maintenance of Office or Agency
	 	 	55	 
	Section 10.3 Money for Securities Payments To Be Held in Trust
	 	 	56	 
	Section 10.4 Additional Amounts
	 	 	57	 
	Section 10.5 Statement as to Compliance; Notice of Certain Defaults
	 	 	58	 
	 
	ARTICLE 11
	 	 	 	 
	REDEMPTION OF SECURITIES
	 	 	 	 
	 
	Section 11.1 Applicability of Article
	 	 	58	 
	Section 11.2 Election to Redeem; Notice to Trustee
	 	 	59	 
	Section 11.3 Selection by Trustee of Securities To Be Redeemed
	 	 	59	 
	Section 11.4 Notice of Redemption
	 	 	59	 
	Section 11.5 Deposit of Redemption Price
	 	 	60	 
	Section 11.6 Securities Payable on Redemption Date
	 	 	60	 
	Section 11.7 Securities Redeemed in Part
	 	 	61	 
	ARTICLE 12
	 	 	 	 
	SINKING FUNDS
	 	 	 	 







-iii- 









 





TABLE OF CONTENTS

(continued)







	 	 	 	 	 
	 	 	Page
	 
	Section 12.1 Applicability of Article
	 	 	61	 
	Section 12.2 Satisfaction of Sinking Fund Payments with Securities
	 	 	61	 
	Section 12.3 Redemption of Securities for Sinking Fund
	 	 	62	 
	 
	 	 	 	 
	ARTICLE 13
	 	 	 	 
	SUBORDINATION
	 	 	 	 
	 
	 	 	 	 
	Section 13.1 Securities Subordinated to Senior Debt
	 	 	63	 
	Section 13.2 No Payment on Securities in Certain Circumstances
	 	 	63	 
	Section 13.3 Payment Over of Proceeds upon Dissolution, Etc
	 	 	64	 
	Section 13.4 Payments May Be Paid Prior to Dissolution
	 	 	65	 
	Section 13.5 Subrogation
	 	 	66	 
	Section 13.6 Obligations of the Company Unconditional
	 	 	66	 
	Section 13.7 Notice to Trustee
	 	 	66	 
	Section 13.8 Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	67	 
	Section 13.9 Trustee’s Relation to Senior Debt
	 	 	67	 
	Section 13.10 Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Debt
	 	 	68	 
	Section 13.11 Holders Authorize Trustee To Effectuate Subordination of Securities
	 	 	68	 
	Section 13.12 This Article Thirteen Not To Prevent Events of Default
	 	 	69	 
	Section 13.13 Trustee’s Compensation Not Prejudiced
	 	 	69	 








-iv- 









 








CONTENTS




	 	 	 	 	 
	Clause

	 	Subject Matter
	 	Page






Reconciliation and tie between

Trust Indenture Act of 1939

and Indenture




	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	§ 310 (a)(1)
	 	 6.9

	(a)(2)
	 	6.9

	(a)(3)
	 	Not Applicable

	(a)(4)
	 	Not Applicable

	(b)
	 	6.8, 6.10

	§ 311 (a)
	 	6.13(a), (c)

	(b)
	 	6.13(b), (c)

	(b)(2)
	 	7.3(a)(ii), 7.3(b)

	§ 312 (a)
	 	7.1, 7.2(a)

	(b)
	 	7.2(b)

	(c)
	 	7.2(c)

	§ 313 (a)
	 	7.3(a)

	(b)(1)
	 	Not Applicable

	(b)(2)
	 	7.3(b)

	(c)
	 	7.3(c)

	(d)
	 	7.3(d)

	§ 314 (a)
	 	7.4

	(b)
	 	Not Applicable

	(c)(1)
	 	1.2

	(c)(2)
	 	1.2

	(c)(3)
	 	Not Applicable

	(d)
	 	Not Applicable

	(e)
	 	1.2

	§ 315 (a)
	 	6.1(a)

	(b)
	 	6.2, 7.3(a)(6)

	(c)
	 	6.1(b)

	(d)
	 	6.1(c)

	(d)(1)
	 	6.1(a)(i), (c)(i)

	(d)(2)
	 	6.1(c)(ii)

	(d)(3)
	 	6.1(c)(iii)

	(e)
	 	5.14

	§ 316 (a)
	 	1.1

	(a)(1)(A)
	 	5.2, 5.12

	(a)(1)(B)
	 	5.13

	(a)(2)
	 	Not Applicable

	(b)
	 	5.8

	§ 317 (a)(1)
	 	5.3

	(a)(2)
	 	5.4

	(b)
	 	10.3

	§ 318 (a)
	 	1.8









 




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





 









 





          INDENTURE, dated as of _______, 2009 between Tenneco Inc., a Delaware corporation
(hereinafter called the “Company”), having its principal office at 500 North Field Drive, Lake
Forest, Illinois 60045, and The Bank of New York Mellon Trust Company, N.A., a national banking
association (hereinafter called the “Trustee”).




Recitals of The Company




          The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness, unlimited as to principal amount, to bear such rates of interest, to mature at such
time or times, to be issued in one or more series and to have such other provisions as shall be
fixed as hereinafter provided.




          The Company has duly authorized the execution and delivery of this Indenture and all things
necessary to make this Indenture a valid and legally binding agreement of the Company, in
accordance with its terms, have been done.




          NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:




ARTICLE 1




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




          Section 1.1 Definitions.




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




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




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




          (c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles and, except as otherwise herein expressly
provided, the terms “generally accepted accounting principles” with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted at
the date of such computation; and




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




          Certain terms, used principally in Article Six, are defined in that Article.




 









 







     
     
“Accounts Receivable Entity” means
a Person, including, without limitation, a Subsidiary of the Company, whose operations consist solely of owning
and/or selling accounts receivable of the Company and its Subsidiaries and engaging in other activities in connection
with transactions that are Permitted Receivables Financings.


          “Act” when used with respect to any Holders has the meaning specified in Section 1.4.




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




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




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




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




          “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or foreign
law for the relief of debtors.




          “Blockage Period” has the meaning specified in Section 13.2(a).




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




          “Board Resolution” means a copy of a resolution 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,” except as may otherwise be provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, with respect to any Place of
Payment means each Monday, Tuesday, Wednesday, Thursday and Friday which is neither a legal holiday
nor a day on which banking institutions or trust companies in that Place of Payment are authorized
or obligated by law to close.




          “Capital Stock” means (1) with respect to any Person that is a corporation, any and
all shares, interests, participation or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of Common Stock and Preferred Stock of


2









 







such Person, and (2) with respect to any Person that is not a corporation, any and all
partnership or other equity interests of such Person.




          “Capitalized
Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified
and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations
at any date shall be the capitalized amount of such obligations at
such date, determined in accordance with GAAP.


          “Cash Equivalents” means





     (1) marketable direct obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency thereof and backed by the full faith and
credit of the United States, in each cash maturing within one year from the date of
acquisition thereof;




     (2) marketable direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s
Corporation (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”);




     (3) commercial paper maturing no more than one year from the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2
from Moody’s;




     (4) demand and time deposit accounts, certificates of deposit or bankers’ acceptances
maturing within one year from the date of acquisition thereof issued by any bank organized
under the laws of the United States of America or any state thereof or the District of
Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250 million;




     (5) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (1) above entered into with any bank meeting the
qualifications specified in clause (4) above;




     (6) investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (1) through (5) above; and




     (7) solely in respect of the ordinary course cash management activities of the Foreign
Subsidiaries, equivalents of the investments described in clause (1) above to the extent
guaranteed by any member state of the European Union or the country in which the Foreign
Subsidiary operates and equivalents of the investments described in clause (4) above issued,
accepted or offered by any commercial bank organized under the laws of a member state of the
European Union or the jurisdiction of organization of the applicable Foreign Subsidiary
having at the acquisition thereof combined capital and surplus of not less than $250
million.



          “Cash Management Obligations” means, with respect to any Person, all obligations of
such Person in respect of overdrafts and related liabilities owed to any other Person that arise
from treasury, depositary or cash management services, including in connection with any automated
clearing house transfers of funds, or any similar transactions.




3









 








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




          “Commodity Agreement” means any commodity futures contract, commodity option or other
similar agreement or arrangement entered into by the Company or any Restricted Subsidiary of the
Company designed to protect the Company or any of its Restricted Subsidiaries against fluctuations
in the price of the commodities at the time used in the ordinary course of business of the Company
or any of its Restricted Subsidiaries and not for speculative purposes.




          “Common Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting or non-voting) of
such Person’s common stock, whether outstanding on the date hereof or issued after the date hereof,
and includes, without limitation, all series and classes of such common stock.




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




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




          “Corporate Trust Office” means the principal office or agency of the Trustee, at which
at any particular time its corporate trust business relating to this Indenture shall be
administered, which office at the date of original execution of this Indenture is located at 2 N.
LaSalle Street, 7th floor, Chicago, IL 60602, 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.




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




          “Credit Agreement” means the Amended and Restated Credit Agreement, dated as of
December 12, 2003, among the Company, certain Subsidiaries of the Company, the lenders party
thereto in their capacities as lenders thereunder and JPMorgan Chase Bank, as administrative agent,
together with the documents related thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time to time in
accordance with their terms (the “Existing Credit Agreement”), including any agreement (a
“Replacement Agreement”) extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings thereunder (provided that
such increase in borrowings is permitted by this Indenture) or adding Subsidiaries as additional
borrowers or guarantors thereunder) all or any portion of the


4









 







Indebtedness under such agreement or any successor or replacement agreement and whether by the
same or any other agent lender or group of lenders.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement designed to protect the Company or any Restricted Subsidiary
against fluctuations in currency values.




          “Defaulted Interest” has the meaning specified in Section 3.7.




          “Default Notice” has the meaning specified in Section 13.2(a).




          “Depositary” means with respect to the Securities of any series issuable or issued in
whole or in part in global form, the Person designated as Depositary by the Company pursuant to
Section 3.1(c) until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as
used with respect to the Securities of any such series shall mean the “Depositary” with respect to
the Securities of that series.




          “Designated Senior Debt” means (1) Indebtedness under or in respect of the Credit
Agreement (so long as such Indebtedness constitutes Senior Debt); provided, that Indebtedness under
any Replacement Agreement will constitute Designated Senior Debt only if permitted under the terms
of the Existing Credit Agreement (if the Existing Credit Agreement is then in effect), (2)
Indebtedness under the Senior Secured Notes (and any Indebtedness that is Refinancing Indebtedness
of the Senior Secured Notes so long as such Indebtedness is Senior Debt); and (3) any other
Indebtedness constituting Senior Debt which, at the time of determination, has an aggregate
principal amount of at least $50 million and is specifically designated in the instrument
evidencing such Senior Debt as “Designated Senior Debt” by the Company.




          “Disqualified Capital Stock” means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is mandatorily exchangeable for Indebtedness, or is
redeemable or exchangeable for Indebtedness, at the sole option of the holder thereof on or prior
to the final maturity date of the Securities.




          “Dollars” or “$” or any similar reference shall mean currency of the United
States which at the time shall be legal tender for the payment of public and private debts.




          “Event of Default” has the meaning specified in Section 5.1.



          “Fair
Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined by the Board of Directors of
the Company acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Company.



          “Foreign Subsidiary” means any Subsidiary that is organized and existing under the
laws of a jurisdiction other than the United States, any State thereof or the District of Columbia.



          “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 may be approved by a
significant segment of the accounting profession of the United
States, which are in effect as of the date hereof.




          “Hedging Obligations” means, with respect to any Person, the obligations of such
Person in respect of (a) interest rate or currency swap agreements, interest rate or currency cap


5









 







agreements, interest rate or currency collar agreements or (b) other agreements or
arrangements designed to protect such Person against fluctuations in interest rates and/or currency
exchange rates.




          “Holder” when used with respect to any Security means the Person in whose name the
Security is registered in the Security Register.




          “Indebtedness”  means, with respect to any Person, without duplication:




          (1)
all Obligations of such Person for borrowed money;





          (2)  all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;



          (3)  all Capitalized Lease Obligations of such Person;




          (4)  all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business that are not overdue by 90 days or more or are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted);





          (5)  all Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction;




          (6)  guarantees and other contingent obligations in respect of Indebtedness of any other Person referred to in clauses (1) through (5) above and clauses (8) and (10) below;



          (7)  all Obligations of any other Person of the type referred to in clauses (1) through (6) which are secured by any Lien on any property or asset of such Person, the amount of such Obligation being deemed to be the lesser of the Fair Market Value of such property or asset or the amount of the Obligation so secured;




          (8)  all Obligations under currency agreements and interest swap agreements of such Person;



          (9)  all Disqualified Capital Stock of the Company and all Preferred Stock of a Restricted Subsidiary with the amount of Indebtedness represented by such Disqualified Capital Stock or Preferred Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued and unpaid dividends, if any; and



          (10)  all Outstanding Permitted Receivables Financings.



          For purposes hereof,
 the “maximum fixed repurchase price” of any Disqualified Capital Stock or Preferred Stock which
does not have a fixed repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock or Preferred Stock as if such Disqualified Capital Stock or
Preferred Stock were purchased on any date on which Indebtedness shall be required to
 be determined pursuant to this Indenture, and if such price is based upon, or measured
by, the Fair Market Value of such Disqualified Capital Stock or Preferred Stock, such Fair
Market Value shall be determined reasonably and in good faith by the Board of Directors of
the issuer of such Disqualified Capital Stock or Preferred
Stock.













          “Indenture” means this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof.




          “Interest” when used with respect to an Original Issue Discount Security which by its
terms bears interest only after Maturity means interest payable after Maturity, and, when used with
respect to a Security which provides for the payment of Additional Amounts pursuant to Section
10.4, includes such Additional Amounts.




          “Insolvency or Liquidation Proceeding” means, with respect to any Person, (a) any
voluntary or involuntary case or proceeding under any Bankruptcy Law, (b) any other voluntary or
involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to such Person or with
respect to any of its assets, (c) any liquidation, dissolution, reorganization or winding up of
such Person whether voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (d) any assignment for the benefit of creditors or any other marshaling of assets and
liabilities of such Person.




          “Interest Payment Date” means the Stated Maturity of an installment of interest on the
applicable Securities.




          “Interest Swap Obligations” means the obligations of the Company and Restricted
Subsidiaries pursuant to any arrangement with any other Person, whereby, directly or indirectly,
the Company or any Restricted Subsidiary is entitled to receive from time to time periodic payments
calculated by applying either a floating or a fixed rate of interest on a stated notional amount in
exchange for periodic payments made by such other Person calculated by applying a fixed or a
floating rate of interest on the same notional amount and shall include, without limitation,
interest rate lock obligations, interest rate swaps, caps, floors, collars and similar agreements.






          “Lien”
means any lien, mortgage, deed of trust, deed to secure debt, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).





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




          “Obligations” means any and all obligations with respect to the payment of (a) any
principal of or interest (including interest accruing on or after the commencement of any
Insolvency or Liquidation Proceedings, whether or not a claim for post-filing interest is allowed
in such proceeding) or premium on any Indebtedness, including any reimbursement obligation in
respect of any letter of credit, (b) any fees, indemnification obligations, damages, expense
reimbursement obligations or other liabilities payable under the documentation governing any


6









 







Indebtedness, (c) any obligation to post cash collateral in respect of letters of credit and
any other obligations and (d) any Cash Management Obligations or Hedging Obligations.




          “Officers’ Certificate” means a certificate signed by the Chairman of the Board, the
President, any Vice President or the Treasurer, and by the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 1.2




          “Opinion of Counsel” means a written opinion of counsel acceptable to the Trustee, who
may (except as otherwise expressly provided in this Indenture) be an employee of or counsel for the
Company, or other counsel. Each such opinion shall include the statements provided for in Section
1.2.




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




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





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




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




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


provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount
Security that may be counted in making such determination and that shall be deemed to be
outstanding for such purposes shall be equal to the amount of the principal thereof that could be
declared to be due and payable pursuant to the terms of such Original Issue Discount Security at
the time the taking of such action by the Holders of such requisite principal amount is evidenced
to the Trustee as provided in Section 1.4(a), and, provided further, that
Securities owned beneficially by the Company or any other obligor upon the Securities or any
Affiliate (other than officers or directors of the Company) of the Company or such other obligor,
shall be disregarded and


7









 








deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor. In the case of a dispute as to such right, the advice of
counsel shall be full protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers’ Certificate listing and identifying all securities known by the Company to be owned or
held by or for the account of any of the above-described persons; and, subject to the terms of this
Indenture, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not listed therein are
outstanding for the purpose of any such determination.






          “Outstanding
Permitted Receivables Financings”  means the aggregate amount of the receivables sold or financed pursuant to a Permitted Receivables Financing that remain uncollected at any one time.






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






          “Permitted
Receivables Financing” means any sale by the Company or a Restricted Subsidiary of
accounts receivable and related assets intended to be (and which shall be treated for
 purposes of this Indenture as) a true sale transaction with customary limited recourse
based upon the collectibility of the receivables sold and the corresponding sale or pledge
of such accounts receivable (or an interest therein) in each case without any guarantee by
the Company or any Restricted Subsidiary other than an Accounts Receivable Entity.




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




          “Place of Payment” when used with respect to the Securities of any series means the
place or places where, subject to the provisions of Section 10.2, the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified as provided pursuant to
Section 3.1.




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




          “Preferred Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions or upon liquidation.




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




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




          “Refinance” means in respect of any security or Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in
exchange or replacement for , such security or Indebtedness in whole or in part. “Refinanced” and
“Refinancing” shall have correlative meanings.




8









 








          “Refinancing Indebtedness” means any Refinancing by the Company or any Restricted
Subsidiary of Indebtedness incurred in accordance with this Indenture, in each case that does not:





     (1) result in an increase in the aggregate principal amount of any Indebtedness of
such Person as of the date of such proposed Refinancing (plus the amount of any premium
reasonably necessary to Refinance such Indebtedness and plus the amount of reasonable
expenses incurred by the Company in connection with such Refinancing); or




     (2) create Indebtedness with (A) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Indebtedness being Refinanced or (B) a final
maturity earlier than the final maturity of the Indebtedness being Refinanced;


provided that if such Indebtedness being Refinance is Indebtedness of the Company and/or a
Subsidiary, then such Refinancing Indebtedness shall be Indebtedness solely of the Company and/or
such Subsidiary.




          “Registered Security” means any Security established pursuant to Section 2.1 which is
registered in the Security Register.




          “Regular Record Date” for the interest payable on a Security on any Interest Payment
Date means the date, if any, specified in such Security as the “Regular Record Date.”




          “Representative” means the indenture trustee or other trustee agent or representative
in respect of any Designated Senior Debt; provided that if, and for so long as, any Designated
Senior Debt lacks such a representative, then the Representative for such Designated Senior Debt
shall at all times constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.




          “Responsible Officer” when used with respect to the Trustee means the president, any
vice president (whether or not designated by a number or a word or words added before or after the
title “vice president”), any assistant treasurer, any senior trust officer or trust officer, or any
other officer of the Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his 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 of the Company that has not been
designated by the Board of Directors of the Company, by a board resolution delivered to the
Trustee, as an Unrestricted Subsidiary pursuant to and in compliance with this Indenture. Any such
designation may be revoked by a board resolution of the Company delivered to the Trustee, subject
to the provisions of this Indenture.




          “Security” or “Securities” means any Security or Securities, as the case may
be, authenticated and delivered under this Indenture.




9









 








          “Security Register” and “Security Registrar” have the respective meanings
specified in Section 3.5.




          “Senior Debt” means the principal of, premium, if any, and interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an allowed claim under
applicable law) on any Indebtedness of the Company, whether outstanding on the date hereof or
thereafter created, incurred or assumed unless, in the case of any particular Indebtedness and
Security, the instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in right of payment to
such Security. Without limiting the generality of the foregoing, “Senior Debt” shall also include
the principal of, premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law) on, and all other
amounts owing in respect of:





     (w) all monetary obligations of every nature of the Company under the Credit Agreement,
including, without limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities;




     (x) all monetary obligations of every nature of the Company under the Senior Secured
Notes, including, without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and indemnities;




     (y) all Interest Swap Obligations; and




     (z) all obligations under Commodity Agreements and Currency Agreements.




     Notwithstanding the foregoing, “Senior Debt” shall not include:




     (1) any Indebtedness of the Company to a Restricted Subsidiary or any Affiliate of the
Company or any of such Affiliate’s Subsidiaries;




     (2) Indebtedness to, or guaranteed on behalf of, any shareholder, director, officer or
employee of the Company or any Restricted Subsidiary (including without limitation, amounts
owed for compensation);




     (3) Indebtedness to trade creditors and other amounts incurred in connection with
obtaining goods, materials or services;




     (4) Indebtedness represented by Disqualified Capital Stock;




     (5) any liability for federal, state, local or other taxes owed by the Company;




     (6) Indebtedness incurred in violation of this Indenture;




     (7) Indebtedness which, when incurred and without respect to any election under Section
1111(b) of Title 11, United States Code, is without recourse to the Company; and



10









 






     (8) any Indebtedness which is, by its express terms, subordinated in right of payment
to any other Indebtedness of the Company.



          “Senior Secured Notes” means the Company’s 10-1/4% Senior Secured Notes due 2013
issued from time to time under the certain indenture dated as of June 19, 2003 with Wachovia Bank,
National Association as trustee. 




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




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




          “Subsidiary,” with respect to any Person, means (1) any corporation of which the
outstanding Capital Stock having at least a majority of the votes entitled to be cast in the
election of directors under ordinary circumstances shall at the time be owned, directly or
indirectly, by such Person or (2) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.




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




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




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




          “United States Alien” means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary
of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for
United States Federal income tax purposes, a foreign corporation, a non-resident alien individual
or a non-resident alien fiduciary of a foreign estate or trust.




          “Unrestricted Subsidiary” means any Subsidiary of the Company designated as such
pursuant to and in compliance with this Indenture. Any such designation may be revoked by a board
resolution of the Company delivered to the Trustee, subject to the provisions of this Indenture.




11









 








          “U.S. Government Obligations” means securities that are (i) direct obligations of the
United States for the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality of the United
States the timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government Obligation held by
such custodian for the account of the holder of a depository receipt; provided that (except
as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (A) the then outstanding aggregate principal amount
of such Indebtedness into (B) the sum of the total of the products obtained by multiplying (I) the
amount of each then remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (II) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and the making of such
payment.




          Section 1.2 Compliance Certificates and Opinions.




          Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.




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




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




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




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




12









 








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




          Section 1.3 Form of Documents Delivered to Trustee.




          In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents. Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.




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




          Any certificate, statement or opinion of an officer of the Company or of counsel may be based
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
a firm of accountants or an accountant in the employ of the Company, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or representations with respect
to the accounting matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that the same are
erroneous.




          Any certificate or opinion of any independent firm of public accountants filed with the
Trustee shall contain a statement that such firm is independent.




          Section 1.4 Acts of Holders.




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


13









 







Section 6.1) conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section.




          (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved in any reasonable manner which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee may in any instance require further
proof with respect to any of the matters referred to in this Section.




          (c) The ownership of Securities and the principal amount and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the Security Register.




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




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




          Section 1.5 Notices, Etc., to Trustee and Company.




          Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,




          (a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration, or




          (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to the attention of its Treasurer at the address of


14









 







its principal office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.




          Section 1.6 Notice to Holders of Securities; Waiver.




          Except as otherwise expressly provided herein or in the form of Securities of any particular
series pursuant to the provisions of this Indenture, where this Indenture provides for notice to
Holders of Securities of any event, such notice shall be sufficiently given to Holders of
Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Security
affected by such event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving of such notice.




          In any case where notice to Holders of Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security
shall affect the sufficiency of such notice with respect to other Holders of Securities. In the
case by reason of the suspension of regular mail service or by reason of any other cause it shall
be impracticable to give such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.




          Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed
with the Trustee, but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.




          Section 1.7 Language of Notices, Etc.




          Any request, demand, authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that, if the Company so
elects, any published notice may be in an official language of the country of publication.




          Section 1.8 Conflict with Trust Indenture Act.




          If any provision hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such
required provisions shall control.




          Section 1.9 Effect of Headings and Table of Contents.




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




          Section 1.10 Successors and Assigns.




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




15









 








          Section 1.11 Separability Clause.




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




          Section 1.12 Benefits of Indenture.




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




          Section 1.13 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 1.14 Legal Holidays.




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




          Section 1.15 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.



          
Section 1.16     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.



ARTICLE 2




SECURITY FORMS




          Section 2.1 Forms Generally.




          The Securities, if any, of each series and Securities in global form, if any, shall be in the
form established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, shall have appropriate insertions, omissions, substitutions and other


16









 







variations as are required or permitted by this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the officers of the
Company executing such Securities, as evidenced by their execution of such Securities. If the
forms of the Securities of any 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 Company Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.




          Unless otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, the Securities of each series shall be issuable in registered form without coupons.




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




          Section 2.2 Form of Trustee’s Certificate of Authentication.




          The Trustee’s Certificate of Authentication shall be in substantially the following form:




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




	 	 	 	 	 	 	 
	 	 	The Bank of New York Mellon Trust
Company, N.A., as Trustee
 	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	  

Authorized
Signatory
	 	 
	 
	 	 	 	 	 	 
	 

	 	Dated:	 	 
	 

	 	 	 	 
 	 	 





          Section 2.3 Securities in Global Form.




          If Securities of a series are issuable in whole or in part in global form, any such Security
may provide that it shall represent the aggregate amount of Outstanding Securities from time to
time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges or increased to reflect
the issuance of additional Securities. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons, as shall be specified therein or in the
Company Order delivered to the Trustee pursuant to Section 3.3.




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ARTICLE 3




THE SECURITIES




          Section 3.1 Amount Unlimited; Issuable in Series.




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




          The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more
indentures supplemental hereto prior to the issuance of Securities of any series:




          (a) the title of the Securities and the series in which such Securities shall be included;




          (b) the limit, if any, upon the aggregate principal amount of the Securities of such title and
the Securities of such series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7);




          (c) whether Securities of the series may be issued in whole or in part in global form and, if
so, the identity of the Depositary for such Securities in global form, and the terms and
conditions, if any, upon which interests in such Securities in global form may be exchanged, in
whole or in part, for the individual Securities represented thereby;




          (d) the date or dates on which the principal of such Securities is payable;




          (e) the rate or rates at which such Securities shall bear interest, if any, or method by which
such rate or rates are determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the
interest payable on Registered Securities on any Interest Payment Date, whether and under what
circumstances Additional Amounts on such securities shall be payable in respect of specified taxes,
assessments or other governmental charges withheld or deducted and, if so, whether the Company has
the option to redeem the affected Securities rather than pay such Additional Amounts, and the basis
upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day
months;




          (f) the place or places, if any, in addition to or other than the Borough of Manhattan, The
City of New York, where the principal of (and premium, if any) and interest on or Additional
Amounts, if any, payable in respect of such Securities shall be payable, where such Securities may
be surrendered for registration of transfer, where such Securities may be surrendered for exchange
and where notice and demands to or upon the Company, in respect of such Securities and this
Indenture, may be served and where notices to Holders pursuant to Section 1.6 will be published;




18









 








          (g) the period or periods within which, the price or prices at which and the terms and
conditions upon which such Securities may be redeemed, in whole or in part, at the option of the
Company or a Holder;




          (h) the obligation, if any, of the Company to redeem such Securities pursuant to any sinking
fund and the period or periods within which, the price or prices at which and the terms and
conditions upon which such Securities shall be redeemed in whole or in part, pursuant to such
obligation;




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




          (j) if other than the principal amount thereof, the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 5.2;




          (k) if the amount of payments of principal of (and premium, if any) or interest, if any, on,
and Additional Amounts in respect of such Securities may be determined with reference to an index,
formula or other method other than that in which the Securities are stated to be payable, the
manner in which such amounts shall be determined;




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




          (m) whether, and under what conditions, Additional Amounts will be payable to Holders of
Securities of such series pursuant to Section 10.4;




          (n) any Events of Default with respect to Securities of such series, if not otherwise set
forth herein; and




          (o) any other terms of such Securities (which terms shall not be inconsistent with the
provisions of this Indenture).




          All Securities of any one series shall be substantially identical except as to denomination
and the rate or rates of interest, if any, redemption dates and sinking fund dates, if any, and
Stated Maturity, the date from which interest, if any, shall accrue, the amount that shall be
payable upon the declaration of acceleration and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers’ Certificate or in any such indenture
supplemental hereto. All Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of additional Securities of such
series.




          If any of the terms of the Securities of any series were 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 such series.




19









 








          Section 3.2 Denominations.




          Unless other denominations and amounts may from time to time be fixed by or pursuant to a
Board Resolution, the Registered Securities of each series, if any, shall be issuable in registered
form without coupons in denominations of $1,000 and any integral multiple thereof.




          Section 3.3 Execution, Authentication, Delivery and Dating.




          The Securities shall be executed on behalf of the Company by its Chairman of the Board,
President, any Vice President or its Treasurer under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. The seal of the Company may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such reproduction of the seal
or any such signature shall not affect the validity or enforceability of any Security that has been
duly authenticated and delivered by the Trustee.




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




          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series, executed by the Company, to the Trustee for
authentication, together with the Board Resolution and Officers’ Certificate or supplemental
indenture with respect to such Securities referred to in Section 3.1 and a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance with the Company
Order and subject to the provisions hereof shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be provided with, and (subject to Section 6.1)
shall be fully protected in relying upon, an Opinion of Counsel stating,




          (a) that the form and terms of such Securities have been established in conformity with the
provision of this Indenture;




          (b) that all conditions precedent set forth in this Indenture to the authentication and
delivery of such Securities have been complied with and 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 against the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors’ rights and to general equity
principles; and




          (c) as to such other matters as the Trustee may reasonably request;



provided, however, that if all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of
each Security, but


20









 






such Opinion of Counsel, with appropriate modifications, may instead be delivered at or prior to
the time of the first issuance of Securities of such series.




          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 or if the Trustee, being advised by counsel, determines that such action may not
lawfully be taken.




          If the Company shall establish pursuant to Section 3.1 that Securities of a series may be
issued in whole or in part in global form, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global from that (i) shall represent and shall be denominated in
an authorized aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series and tenor to be represented by one or more Securities in global form,
(ii) shall be registered, in the name of the Depositary for such Security or Securities in global
form or the nominee of such Depositary, (iii) shall be delivered to such Depositary or pursuant to
such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:
“Unless and until it is exchanged in whole or in part for Notes in certificated form, this Note may
not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative of the Depository Trust
Company (55 Water Street, New York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the name of CEDE & CO.
or such other name as requested by an authorized representative of the Depository Trust Company and
any payment is made to CEDE & CO., any transfer, pledge or other use hereof for value or otherwise
by or to any person is wrongful since the registered owner hereof, CEDE & CO., has an interest
herein.” Each Depositary designated pursuant to Section 3.1 for a Security in global form must, at
the time of its designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable statute or
regulation.




          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 in Section 2.2 or 6.14 executed by or on behalf of the
Trustee by the manual signature of one of its authorized signatories, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.




          Section 3.4 Temporary Securities.




          Pending the preparation of definitive Securities of any series, the Company may execute and
deliver to the Trustee, and upon Company Order the Trustee shall authenticate and deliver, in the
manner provided in Section 3.3, temporary Securities of such series which are



21









 






printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued, in registered form without coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such Securities may
determine, as evidenced by their execution of such Securities. In the case of Securities of any
series, such temporary Securities may be in global form, representing all of the Outstanding
Securities of such series and tenor.




          Except in the case of temporary Securities in global form, which shall be exchanged in
accordance with the provisions thereof, if temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities of such series shall be
exchangeable upon request for definitive Securities of such series containing identical terms and
provisions upon surrender of the temporary Securities of such series at an office or agency of the
Company maintained for such purpose pursuant to Section 10.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of authorized denominations of the same series containing identical terms
and provisions. Unless otherwise specified as contemplated by Section 3.1 with respect to a
temporary Security in global form, until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
such series.




          Section 3.5 Registration, Transfer and Exchange.




          With respect to the Securities of each series, if any, the Company shall cause to be kept, at
an office or agency of the Company maintained pursuant to Section 10.2, a register (herein
sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of the Securities of each
series and of transfers of the Securities of each series. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers and exchanges of
Securities as herein provided; provided that the Company may, from time to time, designate
(or change any designation of) any other Person or Persons to act as Security Registrar or
co-Security Registrars with respect to the Securities of one or more series, with notice to the
Trustee and as provided in Section 1.6 to the Holders. At all reasonable times the Security
Register shall be open for inspection by the Company. In the event that the Trustee shall not be
the Security Registrar, it shall have the right to examine the Security Register at all reasonable
times.




          Upon surrender for registration of transfer of any Security of any series at any office or
agency of the Company maintained for that series pursuant to Section 10.2, the Company shall
execute, and the Trustee, at the direction of the Company, shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of the same series of
an authorized denomination, of a like aggregate principal amount bearing a number not
contemporaneously outstanding and containing identical terms and provisions.




          Notwithstanding any other provision of this Section, unless and until it is exchanged in whole
or in part for the individual Securities represented thereby, in definitive



22









 






form, a Security in global form representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.




          At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series containing identical terms and provisions, in any authorized denominations, and of
a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such
office or agency of the Company maintained for that series pursuant to Section 10.2. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee, at the
direction of the Company, shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.




          If at any time the Depositary for the Securities of a series notifies the Company that it is
unwilling or unable to continue as Depositary for the Securities of such series or if at any time
the Depositary for the Securities of such series shall no longer be eligible under Section 3.3, the
Company, by Company Order, shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company’s election pursuant to Section 3.1(c) shall no longer be effective with
respect to the Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive form in an aggregate
principal amount and of like terms and tenor equal to the principal amount of the Security or
Securities in global form representing such series in exchange for such Security or Securities in
global form.




          The Company may at any time and in its sole discretion determine that individual Securities of
any series issued in global form shall no longer be represented by such Security or Securities in
global form. In such event the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual definitive Securities of such series and of
the same terms and tenor, will authenticate and deliver individual Securities of such series in
definitive form in authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities in global form representing such series in exchange
for such Security or Securities in global form.




          If specified by the Company pursuant to Section 3.1 with respect to a series of Securities,
the Depositary for such series of Securities may surrender a Security in global form for such
series of Securities in exchange in whole or in part for individual Securities of such series in
definitive form and of like terms and tenor on such terms as are acceptable to the Company, the
Trustee and such Depositary. Thereupon, the Company shall execute, and the Trustee upon receipt of
a Company Order for the authentication and delivery of individual definitive Securities of such
series, shall authenticate and deliver, without service charge:




          (a) to the Depositary or to each Person specified by such Depositary a new individual Security
or Securities of the same series and of the same tenor, of authorized


23









 







denominations, in aggregate principal amount equal to and in exchange for such Person’s
beneficial interest in the Security in global form; and




          (b) to such Depositary a new Security in global form in a denomination equal to the
difference, if any, between the principal amount of the surrendered Security in global form and the
aggregate principal amount of the individual Securities delivered to Holders thereof.




          In any exchange provided for in any of the preceding three paragraphs, the Company will
execute and the Trustee pursuant to a Company Order will authenticate and deliver individual
Securities in definitive registered form in authorized denominations.




          Upon the exchange of a Security in global form for Securities in definitive form, at the
direction of the Company, such Security in global form shall be cancelled by the Trustee.
Securities issued in exchange for a Security in global form pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary for such Security
in global form, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the persons in
whose names such Securities are so registered or to the Depositary.




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




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




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




          No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.




          The Company shall not be required (i) to issue, register the transfer of or exchange any
Securities of any series during a period beginning at the opening of business 15 days before the
day of the selection for redemption of Securities of that series under Section 11.3 and ending at
the close of business on the day of such selection, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except in the case of any Security to
be redeemed in part, the portion thereof not to be redeemed.




24









 








          Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.




          If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee, at the direction of the Company, shall authenticate and deliver in exchange therefor a new
Security of the same series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding.




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




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




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




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




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




          Section 3.7 Payment of Interest; Interest Rights Preserved.




          Interest on any Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall, if so provided in such Security, be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered as of the close of business on
the Regular Record Date for such interest.




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




25









 








          (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities affected (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class postage prepaid, to each Holder of such Securities at his
address as it appears in the Security Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in a newspaper, customarily published in the English
language on each Business Day and of general circulation in the Borough of Manhattan, The City of
New York, but such publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be payable pursuant to the
following clause (b).




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




          Interest on Securities of any series that bear interest may be paid by mailing a check to the
address of the person entitled thereto as such address shall appear in the Security Register or by
wire transfer or other electronic means.




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




          Section 3.8 Persons Deemed Owners.




          Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of



26









 






principal of (and premium, if any), and (subject to Sections 3.5 and 3.7) interest on and
Additional Amounts with respect to, such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.




          None of the Company, the Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar or any co-Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests of a Security
in global form or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests and each of them may act or refrain from acting without liability on any
information relating to such records provided by the Depositary.




          Section 3.9 Cancellation.




          All Securities surrendered for payment, redemption, repayment, registration of transfer or
exchange or for credit against any sinking fund payment, if surrendered to any Person other than
the Trustee, shall be delivered to the Trustee, and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee at the direction of the Company.
No securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be cancelled by it in its customary manner unless by a Company
Order the Company directs their return to it.




          Section 3.10 Computation of Interest.




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




          Section 3.11 CUSIP Numbers.




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




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ARTICLE 4




SATISFACTION AND DISCHARGE




          Section 4.1 Satisfaction and Discharge of Indenture.




          Upon the direction of the Company by a Company Order, this Indenture shall cease to be of
further effect (except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, rights, obligations, duties and immunities of the Trustee
set forth in the last paragraph of this Section and any right to receive Additional Amounts, as
provided in Section 10.4), and the Trustee, pursuant to a Company Order and at the expense of the
Company, shall execute proper instructions acknowledging satisfaction and discharge of this
Indenture, when




          (a) either





          (i) all Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.6, and (B) Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been delivered to the Trustee
for cancellation; or




          (ii) all such Securities not theretofore delivered to the Trustee for cancellation




          (1) have become due and payable, or




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




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


and the Company, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and
discharge, or U.S. Government Obligations, maturing as to principal and paying interest in such
amounts and at such times as will insure the availability of cash sufficient to pay and discharge,
the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, and any Additional Amounts with
respect thereto, to the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;




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




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




          In the event there are Securities of two or more series hereunder, the Trustee shall be
required to execute an instrument acknowledging satisfaction and discharge of this Indenture only
if requested to do so by Company Order with respect to Securities of all series as to which it is
Trustee and if the other conditions thereto are met. In the event there are two or more Trustees
hereunder, then the effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.




          Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.7 and, if money shall have been deposited with the Trustee
pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 10.3 shall survive such satisfaction and discharge.




          Section 4.2 Application of Trust Money.




          Subject to the provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium, if any) and any interest and
Additional Amounts for whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.




ARTICLE 5




REMEDIES




          Section 5.1 Events of Default.




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




          (a) default in the payment of any interest on or any Additional Amounts payable in respect of
any of the Securities of such series as and when such interest or Additional Amounts becomes due
and payable, and continuance of such default for a period of 30 days; or




          (b) default in the payment of all or any part of the principal of (and premium, if any, on)
any of the Securities of such series as and when the same becomes due and payable at Maturity, or
default in the deposit of any sinking fund payment, when and as due by the terms of any of the
Securities of such series; or




29









 








          (c) default in the performance, or breach, of any covenant or agreement of the Company in the
Securities of such series or this Indenture (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically dealt with), and continuance
of such default or breach for a period of 90 days after there has been given, by registered or
certified mail, return receipt requested, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities to which
covenant or agreement relates a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder; or




          (d) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the
Company or for any substantial part of its property, or ordering the winding-up or liquidation of
its affairs, and such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or




          (e) the Company shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian, sequestrator or other similar official
of it or any substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any corporate action to authorize
any of the foregoing; or




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




          Section 5.2 Acceleration of Maturity; Rescission and Annulment.




          If an Event of Default described in clause (a), (b) or (c) above (if the Event of Default
under clause (c) above is with respect to less than all series of Securities then outstanding)
occurs and is continuing, then, and in each and every case, unless the principal of all of the
Securities of such series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such
series (each such series voting as a separate class in the case of an Event of Default under clause
(a) or (b) and all such series voting as one class in the case of an Event of Default under clause
(c)), by notice in writing to the Company (and to the Trustee if given by such Holders), may
declare the entire principal of all Securities of such series, or such lesser amount as may be
provided for in the Securities of that series, and the interest accrued thereon to be due and
payable immediately, and upon any such declaration the same shall become immediately due and
payable.




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          If an Event of Default described in clause (c) above with respect to all series of Outstanding
Securities, or any Event of Default described in clause (d) or (e) above occurs and is continuing,
then, and in each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Outstanding Securities (treated as one class), by notice in writing to
the Company (and to the Trustee if given by such Holders), may declare the entire principal of all
the Outstanding Securities, or such lesser amount as may be provided for in the Securities, and
interest accrued thereon to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.




          At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, each series voting as a separate class (or of all
Securities, as the case may be, voting as a single class), by written notice to the Company and the
Trustee, may waive all defaults with respect to such series (or with respect to all Securities, as
the case may be) and rescind and annul such declaration and its consequences if:




          (a) the Company has paid or deposited with the Trustee a sum sufficient to pay:





          (i) all overdue installments of interest on and any Additional Amounts payable in
respect of all Securities of that series (or upon all the Securities, as the case may be),




          (ii) the principal of (and premium, if any, on) any Securities of that series (or upon
all the Securities, as the case may be) which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne by or provided
for in such Securities,




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




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



          (b) all Events of Default with respect to Securities, other than the non-payment of the
principal of Securities which has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.




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




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          Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.




          The Company covenants that if




          (a) default is made in the payment of any installment of interest on or any Additional Amounts
payable in respect of any Security when such interest or Additional Amounts shall have become due
and payable and such default continues for a period of 30 days, or




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




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




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




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




          Section 5.4 Trustee May File Proofs of Claim.




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




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




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




and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each Holder of Securities to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and any other amounts due the Trustee under Section 6.7.




          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder of a Security any plan of 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 of a Security in any such
proceeding.




          Section 5.5 Trustee May Enforce Claims Without Possession of Securities.




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




          Section 5.6 Application of Money Collected.




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




          First: To the payment of all amounts due the Trustee under Section 6.7; and




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



33









 






or priority of any kind, according to the aggregate amounts due and payable on such Securities
for principal (and premium, if any), interest and Additional Amounts, respectively; and




          Third: The balance, if any, to the Company or as a court of competent jurisdiction may
direct.




          Section 5.7 Limitation on Suits.




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




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




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




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




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




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




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




          Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest.




          Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Sections 3.5 and 3.7) interest on and any Additional Amounts in
respect of such Security on the respective Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent of such Holder.




34









 








          Section 5.9 Restoration of Rights and Remedies.




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




          Section 5.10 Rights and Remedies Cumulative.




          Except as provided in Section 5.7 and except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders
of Securities is intended to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.




          Section 5.11 Delay or Omission Not Waiver.




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




          Section 5.12 Control by Holders of Securities.




          The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series, provided that




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




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




          (c) such direction is not unduly prejudicial to the rights of other Holders of Securities of
such series.




35









 








          Section 5.13 Waiver of Past Defaults.




          Prior to a declaration of acceleration of the Maturity of the Securities of any series as
provided in Section 5.2, the Holders of not less than a majority in principal amount of Outstanding
Securities of any series (each series voting as a separate class) may on behalf of the Holders of
all the Securities of such series waive any past default or Event of Default described in clause
(c) of Section 5.1 which relates to less than all of the series of Outstanding Securities, or the
Holders of not less than a majority in principal amount of all Outstanding Securities (voting as
one class) may on behalf of all Holders waive any past default or Event of Default described in
said clause (c) (which relates to all series of Outstanding Securities) or in clause (d) or (e) of
Section 5.1, except a default




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




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




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




          Section 5.14 Undertaking for Costs.




          All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit,
other than the Trustee, of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, including the Trustee, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee or by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any
suit instituted by any Holder of any Security for the enforcement of the payment of the principal
of (and premium, if any) or interest on or any Additional Amounts in respect of any Security on or
after the respective Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date) or interest on any overdue principal of any Security.




36









 








ARTICLE 6




THE TRUSTEE




          Section 6.1 Certain Duties and Responsibilities.




          (a) Except during the continuance of an Event of Default known to the Trustee,





          (i) the Trustee undertakes to perform such duties, and only such duties, as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




          (ii) in the absence of bad faith 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 provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).



          (b) In case an Event of Default 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 man would exercise or use under the circumstances in the
conduct of his own affairs.




          (c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that





          (i) this subsection shall not be construed to limit the effect of subsection (a) of
this Section;




          (ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;




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




          (iv) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have



37









 




reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.




          (d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.




          Section 6.2 Notice of Defaults.




          Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of such series entitled
to receive reports pursuant to Section 7.3(c), notice of such default hereunder known to a
Responsible Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (and premium, if any) or interest on, or any Additional Amounts with respect to, any
Security of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of directors and
responsible officers of the Trustee in good faith determine that the withholding of such notice is
in the interests of the Holders of Securities of such series; and provided further,
that in the case of any default of the character specified in Section 5.1(c) with respect to
Securities of such series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term “default” means any event which
is, or after notice or lapse of time or both would become, an Event of Default, with respect to
Securities of such series. A default shall not be considered known to a Responsible Officer of the
Trustee unless it is a default in the payment of principal (and premium, if any) or interest when
due under Section 5.1(a) or (b) or a Responsible Officer of the Trustee shall have received written
notice thereof, in accordance with this Indenture, from the Company or from the holders of a
majority in principal amount of the outstanding Securities of the series to which the default
relates.




          Section 6.3 Certain Rights of Trustee.




          Except as otherwise provided in Section 6.1:




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




          (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 3.3, 3.5 or 3.6 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;




          (c) 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



38









 






hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers’ Certificate, an Opinion of
Counsel, or both;




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




          (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 of Securities of any series
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 or direction;




          (f) 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 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;




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




          (h) the Trustee shall not be liable for interest on or the investment of any money received by
it except as the Trustee may agree with the Company;




          (i) the permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as a duty, and the Trustee shall not be answerable for other than its negligence or
willful misconduct;




          (j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, but not limited to, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, whether as agent or otherwise, and
to each agent, custodian and other person employed to act hereunder;




          (k) 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;




          (l) 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



39









 






profit) irrespective or whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action;




          (m) 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;




          (n) 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; and




          (o) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.




          Section 6.4 Not Responsible for Recitals or Issuance of Securities.




          The recitals contained herein and in the Securities, except the Trustee’s certificate of
authentication, shall be taken as the statements of the Company, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.




          Section 6.5 May Hold Securities.




          The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.




          Section 6.6 Money Held in Trust.




          Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from
other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall
be under any liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.




          Section 6.7 Compensation and Reimbursement.




          The Company agrees




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




          (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement or advance as shall
be determined to have been caused by its own negligence or willful misconduct; and




          (c) to fully indemnify the Trustee and its directors, officers, employees and agents for, and
to hold them harmless against, any loss, liability, claim, damage or expense incurred without
negligence or willful misconduct on their part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder.




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




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




          The provisions of this Section shall survive the termination of this Indenture.




          Section 6.8 Disqualifications; Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Indenture.




          Section 6.9 Corporate Trustee Required; Eligibility.




          There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the provisions



41









 






of this Section, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.




          Section 6.10 Resignation and Removal; Appointment of Successor.




          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.




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




          (c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company may petition at the expense of the Company any court
of competent jurisdiction for the appointment of a successor Trustee with respect to such series.




          (d) If at any time:





          (i) the Trustee shall fail to comply with Section 6.8 after written request therefor by
the Company or by any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or




          (ii) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign
after written request therefor by the Company or by any such Holder of a Security, or




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


then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (ii) subject to Section 5.14, any Holder of a Security who has been a bona
fide Holder of a Security of any series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the appointment of a successor Trustee or
Trustees. Such courts may thereupon, after such notice, if any, as it may deem proper, remove the
Trustee and appoint a successor Trustee with respect to such Securities.




          (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee



42









 






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




          (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by first class mail, postage
prepaid, to the Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.




          Section 6.11 Acceptance of Appointment by Successor.




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




          (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and 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,


43









 







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, 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 that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other Trustee hereunder, 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, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates have no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this Indenture other than as
hereinafter expressly set forth, 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, to the extent
contemplated by such supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates.




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




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




          Section 6.12 Merger, Conversion, Consolidation or Succession to Business.




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




44









 








          Section 6.13 Preferential Collection of Claims Against Company.




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




          Section 6.14 Appointment of Authenticating Agent




          The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue or exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.




          Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, by sale or otherwise, shall continue
to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.




          An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all Holders of
Securities, if any, of the series with respect to which such


45









 







Authenticating Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.




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




          The provisions of Sections 3.8, 6.4 and 6.5 shall be applicable to each Authenticating Agent.




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




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




	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON TRUST

    COMPANY, N.A.
	 
	 	 	 	 
	 	 	 
	 	 	As Trustee

	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	As Authenticating Agent
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory
	 
	 	 	 	 
	 

	 	Dated:
	 

	 	 	 	 






          If all of the Securities of any series may not be originally issued at one time, and if the
Trustee does not have an office capable of authenticating Securities upon original issuance located
in a Place of Payment where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need not comply with
Section 1.2) by the Company, shall appoint in accordance with this Section 6.14 an Authenticating
Agent having an office in a Place of Payment designated by the Company with respect to such series
of Securities.




ARTICLE 7




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




          Section 7.1 Company To Furnish Trustee Names and Addresses of Holders.




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




46









 








          (a) semi-annually,
not later than ______ and
______ each year, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such
series as of the ______ and
______ preceding such
______ or ______, and




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




          Section 7.2 Preservation of Information; Communications to Holders.




          (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders of Securities (i) contained in the most recent list furnished to the
Trustee for each series as provided in Section 7.1, and (ii) received by the Trustee for each
series in the capacity of Security Registrar if the Trustee is then acting in such capacity. The
Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list
so furnished.




          (b) If three or more Holders of Securities of any series (hereinafter referred to as
“applicants”) apply in writing to the Trustee, and furnish to the Trustee proof satisfactory to the
Trustee that each such applicant has owned a Security of such series for a period of at least six
months preceding the date of such application, and such application states that the applicants
desire to communicate with other Holders of Securities of such series or with the Holders of all
Securities with respect to their rights under this Indenture or under the Securities and is
accompanied by a copy of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of such application,
at its election, either





          (i) afford such applicants access to the information preserved at the time by the
Trustee in accordance with Section 7.2(a), or




          (ii) inform such applicants as to the approximate number of Holders of Securities whose
names and addresses appear in the information preserved at the time by the Trustee in
accordance with Section 7.2(a), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such application.



          If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon written request of such applicants, mail to each Holder of Securities whose
name and address appears in the information preserved at the time by the Trustee in accordance with
Section 7.2(a), a copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best



47









 






interests of the Holders of Securities or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders of Securities with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their application.




          (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section 7.2(b), regardless of
the source from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under Section 7.2(b).




          Section 7.3 Reports by Trustee.




          (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313 (a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15 following the date of the initial issuance of
Securities under this Indenture deliver to Holders a brief report,
dated as of such May 15, which
complies with the provisions of such Section 313(a).




          (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the Trustee in writing when the
Securities are listed on any stock exchange and of any delisting thereof.




          Section 7.4 Reports by the Company.




          The Company shall:




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



48









 






on a national securities exchange as may be prescribed from time to time in such rules and
regulations;




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




          (c) transmit within 30 days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 7.3(c) with respect to reports pursuant to Section 7.3(a), such
summaries of any information, documents and reports required to be filed by the Company pursuant to
paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.




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




ARTICLE 8




CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE




          Section 8.1 Consolidations and Mergers of Company and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions.




          Notwithstanding anything contained herein or in any of the Securities, the Company may
consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with
or into any other corporation, provided that in any such case, either the Company shall be the
continuing corporation, or the successor corporation shall be a corporation organized and existing
under the laws of the United States of America or a State thereof and such successor corporation
shall expressly assume the due and punctual payment of the principal of (and premium, if any), any
interest on, and any Additional Amounts payable pursuant to Section 10.4 with respect to, all the
Securities, according to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by the Company by supplemental
Indenture satisfactory to the Trustee, executed and delivered to the Trustee by such successor
corporation.




          Section 8.2 Rights and Duties of Successor Corporation.




          In case of any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein as the party of
the first part, and the predecessor corporation shall be relieved of any further obligation under
this Indenture and the Securities. Such successor corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, any or all of the Securities





49











 




issuable hereunder which theretofore shall not have been signed by the Company and delivered
to the Trustee; and, upon the order of such successor corporation, instead of the Company, and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at the date of the
execution hereof.




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




          Section 8.3 Officers’ Certificate and Opinion of Counsel.




          The Trustee, subject to the provisions of Sections 6.1 and 6.3, may receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption and any such supplemental indenture, if any,
complies with the provisions of this Article and that all conditions precedent herein provided
relating to such transactions have been complied with.




ARTICLE 9




SUPPLEMENTAL INDENTURE




          Section 9.1 Supplemental Indentures without Consent of Holders.




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




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




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




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




50









 








          (d) to change or eliminate any provision of this Indenture, provided that any such
change or elimination (i) shall become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision or (ii) shall not apply to any Security Outstanding; or




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




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




          (g) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture which shall not adversely affect the
interest of the Holders of Securities of any series in any material respect; or




          (h) to add to, delete from or revise the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue, authentication and delivery of Securities, as herein
set forth; or




          (i) to add any additional Events of Default (and if such Events of Default are to be
applicable to less than all series of Securities stating that such Events of Default are expressly
being included solely to be applicable to such series); or




          (j) to add to or change or eliminate any provision of this Indenture as shall be necessary or
desirable in accordance with any amendments to the Trust Indenture Act, provided such action shall
not adversely affect the interest of the Holders of the Securities of any series in any material
respect.




          Section 9.2 Supplemental Indentures with Consent of Holders.




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




          (a) change the Stated Maturity of the principal of, or any installment of interest on, any
Security, or reduce the principal amount thereof or the rate of interest thereon or any Additional
Amounts payable in respect thereof, or any premium payable upon the redemption thereof, or change
the obligation of the Company to pay Additional Amounts pursuant to Section 10.4 (except as
contemplated by Section 8.1 and permitted by




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Section 9.1(a)), or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 5.2, or change any Place of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or




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




          (c) modify any
of the provisions of this Section or Section 5.13, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby, or




          (d) adversely affect the right to repayment, if any, of Securities of any series at the option
of the Holders thereof.




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




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




          Section 9.3 Execution of Supplemental Indentures.




          In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trust created by this Indenture, the
Trustee shall be given, and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel and Officers’ Certificate stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.




          Section 9.4 Effect of Supplemental Indentures.




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




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          Section 9.5 Conformity with Trust Indenture Act.




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




          Section 9.6 Reference in Securities to Supplemental Indentures.




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




ARTICLE 10




COVENANTS




          Section 10.1 Payment of Principal, Premium, if any, and Interest.




          The Company covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of (and premium, if any), interest on and any
Additional Amounts payable in respect of the Securities of that series in accordance with the terms
of such series of Securities and this Indenture.




          Section 10.2 Maintenance of Office or Agency.




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




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




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Securities the Borough of Manhattan, The City of New York, and initially appoints the Trustee
at its Corporate Trust Offices as the Company’s office or agency for each of such purposes in such
city.




          Section 10.3 Money for Securities Payments To Be Held in Trust.




          If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of (and premium, if any), or
interest on, any of the Securities of that series, segregate and hold in trust for the benefit of
the Person 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 one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal of (and premium, if any), or interest on, any
Securities of that series, deposit with a 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 each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will




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




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




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




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




          Except as otherwise provided in the form of Securities of any particular series pursuant to
the provisions of this Indenture, any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium, if




54









 




any) or interest on any Security of any series and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment or to be mailed to Holders of Securities, or both,
notice that such money remains unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. In the absence of a written request from the
Company to return unclaimed funds to the Company, the Trustee shall from time to time deliver all
unclaimed funds to or as directed by applicable escheat authorities, as determined by the Trustee
in its sole discretion, in accordance with the customary practices and procedures of the Trustee.
Any unclaimed funds held by the Trustee pursuant to this section shall be held uninvested and
without any liability for interest.




          Section 10.4 Additional Amounts.




          If the Securities of a series provide for the payment of Additional Amounts, the Company will
pay to the Holder of any Security of any series Additional Amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the principal of (or premium,
if any) or interest on, or in respect of, any Security of any series or the net proceeds received
on the sale or exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in the terms of such Security and this
Section to the extent that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made.




          If the Securities of a series provide for the payment of Additional Amounts, at least 10 days
prior to the first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made, and at least 10 days prior to each date of
payment of principal (and premium, if any) or interest, if there has been any change with respect
to the matters set forth in the below-mentioned Officers’ Certificate), the Company will furnish
the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee,
with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal (and premium, if any) or interest on the Securities of that
series shall be made to Holders of Securities of that series who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such Officers’
Certificate shall specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities and the Company will pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Security and the first paragraph of




55









 




this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred without negligence
or willful misconduct on their part arising out of or in connection with actions taken or omitted
by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.




          Section 10.5 Statement as to Compliance; Notice of Certain Defaults.




          (a) The Company will deliver to the Trustee, within 120 days after the end of each fiscal
year, a written statement, which need not comply with Section 1.2, signed by the principal
executive officer, the principal financial officer or the principal accounting officer of the
Company, stating that





          (i) a review of the activities of the Company and its subsidiaries during such year and
of performance under this Indenture has been made under his supervision, and




          (ii) to the best of his knowledge, based on such review, (a) the Company has fulfilled
all of its obligations under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default known to him
and the nature and status thereof, and (b) no event has occurred and is continuing which is,
or after notice or lapse of time or both would become, an Event of Default, or, if such
event has occurred and is continuing, specifying each such event known to him and the nature
and status thereof.



          (b) The Company will deliver to the Trustee within five days after the occurrence thereof,
written notice of any event which after notice or lapse of time or both would become an Event of
Default pursuant to clause (d) of Section 5.1.




ARTICLE 11




REDEMPTION OF SECURITIES




          Section 11.1 Applicability of Article.



          Securities of any series which are redeemable at the option of the Company before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series) this Article.
Securities of any series which are redeemable at the option of the Holder before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series) Sections 11.5 and
11.6 of this Article.




          Section 11.2 Election to Redeem; Notice to Trustee




          The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such




56









 




Redemption Date, the principal amount of Securities of such series to be redeemed and the
relevant terms of the Securities to be redeemed. The election of a Holder to redeem any Securities
shall be evidenced by a writing by a Holder sent to the Trustee and the Company at least 60 days
prior to the Redemption Date fixed by the Holder in such notice (unless a shorter notice period
shall be satisfactory to the Trustee). Such notice shall notify the Trustee and the Company of
such Redemption Date, the principal amount of Securities of such series to be redeemed and any
relevant terms of the Securities of such series to be redeemed.




          Section 11.3 Selection by Trustee of Securities To Be Redeemed.




          If less than all the Securities of any series having the same terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized denomination for
Securities of such series or any integral multiple thereof which is also an authorized
denomination) of the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of such series.




          The Trustee shall promptly notify the Company and the Security Registrar (if other than
itself) in writing of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.




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




          Section 11.4 Notice of Redemption.




          Notice of redemption shall be given in the manner provided in Section 1.6, not less than 30
nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the
Securities to be redeemed (which shorter period shall be acceptable to the Trustee), to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to
the Holder of any Securities designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof. Any notice that is mailed to the Holder of any Securities
in the manner herein provided shall be conclusively presumed to have been duly given, whether or
not such Holder receives the notice.




          All notices of redemption shall state:




          (a) the Redemption Date,




          (b) the Redemption Price (or the method of calculating the Redemption Price) and accrued
interest, if any,




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          (c) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) of the particular
Securities to be redeemed,




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




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




          (f) the Place or Places of Payment where such Securities are to be surrendered for payment of
the Redemption Price, and




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




          A notice of redemption published as contemplated by Section 1.6 need not identify particular
Securities to be redeemed.




          Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request and provision
of such request at least  15
days prior to the notice being sent by the Trustee, by the Trustee in the name and at the expense
of the Company.




          Section 11.5 Deposit of Redemption Price.




          On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on and any Additional
Amounts with respect thereto, all the Securities or portions thereof which are to be redeemed on
that date.




          Section 11.6 Securities Payable on Redemption Date.




          Notice of redemption having been given by the Holder to the Company and Trustee pursuant to
Section 11.2 or to the Holder by the Company or the Trustee pursuant to Section 11.4, the
Securities so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with accrued interest (and
any Additional Amounts) to the Redemption Date; provided, however, that
installments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more




58









 




Predecessor Securities, registered as such at the close of business on the Regular Record
Dates according to their terms and the provisions of Section 3.7.




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




          Section 11.7 Securities Redeemed in Part.




          Any Security which is to be redeemed only in part shall be surrendered at any office or agency
of the Company maintained for that purpose pursuant to Section 10.2 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security or Securities of the same series,
containing identical terms and provisions, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.




ARTICLE 12




SINKING FUNDS




          Section 12.1 Applicability of Article.




          The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise specified as contemplated by Section 3.1 for Securities
of such series or as otherwise permitted or required by any form of Security of such series issued
pursuant to this Indenture.




          The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such series is herein referred to as an “optional sinking fund payment.” If provided for by the
terms of Securities of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.




          Section 12.2 Satisfaction of Sinking Fund Payments with Securities.




          The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of a series to be made pursuant to the terms of such Securities as provided for
by the terms of such series, (1) deliver Outstanding Securities of such series (other than any of
such Securities previously called for redemption) theretofore purchased or receive credit for
Securities (not previously so credited) theretofore purchased by the Company and delivered to the
Trustee for cancellation pursuant to Section 3.9, and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional




59









 




sinking fund payments pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If, as a result of the delivery or credit of Securities of any series in lieu of cash
payments pursuant to this Section 12.2, the principal amount of Securities of such series to be
redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company Request, and such cash
payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking
fund payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any cash payment so
being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that series purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.




          Section 12.3 Redemption of Securities for Sinking Fund.




          Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to
Section 12.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers’ Certificate shall specify an optional amount to be added
in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 11.3 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in Section 11.4. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.




ARTICLE 13




SUBORDINATION




          Section 13.1 Securities Subordinated to Senior Debt.




          The Company covenants and agrees, and each Holder of the Securities, by its acceptance
thereof, likewise covenants and agrees, that all Securities shall be issued subject to the
provisions of this Article 13; and each Person holding any Security, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees that the payment of all
Obligations on the Securities by the Company shall, to the extent and in the manner herein set
forth, be subordinated and junior in right of payment to the prior payment in full in cash or Cash
Equivalents (or such payment shall be duly provided for to the satisfaction of the holders of




60









 







the Senior Debt) of all Obligations on the Senior Debt; that the subordination is for the
benefit of, and shall be enforceable directly by, the holders of Senior Debt and that each holder
of Senior Debt whether now outstanding or hereafter created, incurred, assumed or guaranteed shall
be deemed to have acquired Senior Debt in reliance upon the covenants and provisions contained in
this Indenture.




          Section 13.2 No Payment on Securities in Certain Circumstances.




          (a) If any default occurs and is continuing in the payment when due, whether at maturity, upon
any redemption, by declaration or otherwise, of any principal of, interest on, unpaid drawings for
letters of credit issued in respect of, regularly accruing fees with respect to, or other
Obligations with respect to, any Senior Debt, no payment or distribution of any kind or character
shall be made by or on behalf of the Company with respect to any Obligations on the Securities or
to acquire, redeem or defease any of the Securities for cash or property or otherwise. In
addition, if any other event of default occurs and is continuing with respect to any Designated
Senior Debt, as such event of default is defined in the instrument creating or evidencing such
Designated Senior Debt, permitting the holders of such Designated Senior Debt then outstanding to
accelerate the maturity thereof and if the Representative for such Designated Senior Debt gives
written notice of the event of default to the Trustee (a “Default Notice”), then neither the
Company nor any other Person on its behalf shall (x) make any payment or distribution of any kind
or character with respect to any Obligations on the Securities or (y) acquire, redeem or defease
any of the Securities for cash or property or otherwise for a period of time (the “Blockage
Period”) terminating on the earliest to occur of (1) the date all events of default with respect to
the applicable issue of Designated Senior Debt have been cured or waived or shall have ceased to
exist and the Company and the Trustee receive written notice thereof from the Representative for
the applicable issue of Designated Senior Debt, (2) the Trustee receives written notice from the
Representative for the applicable issue of Designated Senior Debt terminating the Blockage Period,
or the benefits of this sentence are waived by the Representative for the applicable issue of
Designated Senior Debt, (3) the applicable issue of Designated Senior Debt is discharged or paid in
full in cash or Cash Equivalents or (4) the expiration of the 180-day consecutive period commencing
on the date of the giving of such Default Notice. Upon the termination of such Blockage Period,
the Company shall (to the extent not otherwise prohibited by this
Article 13) promptly resume
making all payments on the Securities, including all payments not made during such Blockage Period.
Notwithstanding anything herein to the contrary, in no event shall a Blockage Period extend beyond
179 days from the date the Default Notice was delivered to the Trustee and only one such Blockage
Period may be commenced within any 360 consecutive days. No event of default which existed or was
continuing on the date of the commencement of any Blockage Period with respect to the Designated
Senior Debt shall be, or be made, the basis for commencement of a second Blockage Period by the
Representative of such Designated Senior Debt, whether or not after a period of 360 consecutive
days, unless such event of default shall have been cured or waived or ceased to exist for a period
of not less than 90 consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default pursuant to any
provisions of the Designated Senior Debt under which an event of default previously existed or was
continuing shall constitute a new event of default for this purpose).




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          (b) In the event that, notwithstanding the foregoing, any payment or distribution shall be
received by the Trustee or any Holder when such payment or distribution is prohibited by Section
13.2(a), such payment or distribution shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Debt (pro rata to such holders on the basis of the
respective amount of Senior Debt held by such holders), or their Representative as their respective
interests may appear. The Trustee shall be entitled to conclusively rely on information regarding
amounts then due and owing on the Senior Debt, if any, received from the holders of Senior Debt (or
their Representatives), as the case may be, or, if such information is not received from such
holders or their Representatives, from the Company. The Company shall keep complete and accurate
records of the names, addresses and amounts owed to all holders of
Senior Debt, shall produce such
records to the Trustee upon request and the Trustee shall be absolutely protected in relying on
such records in paying over or delivering moneys pursuant to this
Article 13.




          Nothing
contained in this Article 13 shall limit or compromise the right of the Trustee
or the Holders to take any action to accelerate the maturity of the Securities pursuant to Section
5.2 or to pursue any rights or remedies hereunder or otherwise; provided, however, that all Senior
Debt thereafter due or declared to be due shall first be paid in full in cash or Cash Equivalents
before the Holders are entitled to receive any payment or distribution of any kind or character
with respect to Obligations on the Securities.




          Section 13.3 Payment Over of Proceeds upon Dissolution, Etc.




          (a) Upon any payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities to creditors upon any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or marshaling of assets of the
Company or in a bankruptcy, reorganization, insolvency, receivership or other similar proceeding
relating to the Company or its property, whether voluntary or involuntary, all Obligations due or
to become due upon all Senior Debt shall first be paid in full in cash or Cash Equivalents, or such
payment shall be duly provided for to the satisfaction of the holders of Senior Debt before any
payment or distribution of any kind or character is made on account of any Obligations on the
Securities or for the acquisition, redemption or defeasance of any of the Securities for cash or
property or otherwise. Upon any such dissolution, winding-up, liquidation, reorganization,
assignment, marshalling of assets, receivership or similar proceeding, any payment or distribution
of assets or securities of the Company of any kind or character, whether in cash, property or
securities, to which the Holders or the Trustee under this Indenture would be entitled, except for
the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution, or by the Holders
or by the Trustee under this Indenture if received by them, directly to the holders of Senior Debt
(pro rata to such holders on the basis of the respective amounts of Senior Debt held by such
holders), or their respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of Senior Debt remaining unpaid until all such Senior Debt
has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment or
distribution in cash or Cash Equivalents to or for the holders of Senior Debt.




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          (b) To the extent any payment of Senior Debt (whether by or on behalf of the Company, as
proceeds of security or enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid
over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person,
the Senior Debt or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred.




          (c) In the event that, notwithstanding the foregoing, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or securities, shall
be received by the Trustee or any Holder when such payment or distribution is prohibited by Section
13.3(a), such payment or distribution shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Debt (pro rata to such holders on the basis of the
respective amount of Senior Debt held by such holders), or their respective Representatives, or to
the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash or Cash Equivalents,
after giving effect to any concurrent payment or distribution to or for the holders of such Senior
Debt.




          (d) The consolidation of the Company with, or the merger of the Company with or into, another
corporation or the liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its assets, to another corporation upon the terms and conditions
provided in Article 8 hereof shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if, in the event the Company is not the surviving
corporation, such other corporation shall, as a part of such consolidation, merger, conveyance or
transfer, assume the Company’s obligations hereunder in
accordance with Article 8 hereof.




          Section 13.4 Payments May Be Paid Prior to Dissolution.




          Nothing
contained in this Article 13 or elsewhere in this Indenture shall prevent (i)
the Company, except under the conditions described in Sections 13.2 and 13.3, from making payments
at any time for the purpose of making payments of principal of and interest on the Securities, or
from depositing with the Trustee any monies for such payments, or (ii) in the absence of actual
knowledge by the Trustee that a given payment would be prohibited by Section 13.2 or 13.3, the
application by the Trustee of any monies deposited with it for the purpose of making such payments
of principal of, and interest on, the Securities to the Holders entitled thereto unless at least
one Business Day prior to the date upon which such payment would otherwise become due and payable,
the Trustee shall have received the written notice provided for in Section 13.2(a) or in Section
13.7. The Company shall give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.




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          Section 13.5 Subrogation.




          Subject to the payment in full in cash or Cash Equivalents of all Senior Debt, the Holders
shall be subrogated to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to the Senior Debt until
the Securities shall be paid in full; and, for the purposes of such subrogation, no such payments
or distributions to the holders of the Senior Debt by or on behalf of the Company or by or on
behalf of the Holders by virtue of this Article Thirteen which otherwise would have been made to
the Holders shall, as between the Company and the Holders, be deemed to be a payment by the Company
to or on account of the Senior Debt, it being understood that the provisions of this Article
13 are and are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior Debt, on the other hand.




          Section 13.6 Obligations of the Company Unconditional.




          Nothing contained in this Article 13 or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as among the Company, its creditors other than the
holders of Senior Debt and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and any interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Company other than the holders
of any Senior Debt, nor shall anything herein or therein prevent the Holders or the Trustee on
their behalf from exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article 13 of the holders of Senior
Debt in respect of cash, property or securities of the Company received upon the exercise of any
such remedy.




          Section 13.7 Notice to Trustee.




          The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment or distribution to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article 13. Regardless of anything to the
contrary contained in this Article 13 or elsewhere in this Indenture, the Trustee shall not
be charged with knowledge of the existence of any default or event of default with respect to any
Senior Debt or of any other facts which would prohibit the making of any payment or distribution to
or by the Trustee unless and until the Trustee shall have received notice in writing referencing
this Indenture and the Securities from the Company, or from a holder of Senior Debt or a
Representative therefor, and, prior to the receipt of any such written notice, the Trustee shall be
entitled to assume (in the absence of actual knowledge of a Responsible Officer to the contrary)
that no such facts exist.




          In the event that the Trustee determines in good faith that any evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article 13, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amounts of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under this




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Article 13, and if such evidence is not furnished the Trustee may defer any payment to
such Person pending judicial determination as to the right of such person to receive such payment.




          Section 13.8 Reliance on Judicial Order or Certificate of Liquidating Agent.




          Upon
any payment or distribution of assets or securities of the Company, the Trustee, subject to the provisions of Article Six hereof, and the Holders
shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings are pending,
or upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution, delivered to the Trustee or the Holders, for the
purpose of ascertaining the persons entitled to participate in such distribution, the holders of
the Senior Debt and other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article 13.




          Section 13.9 Trustee’s Relation to Senior Debt.




          The Trustee and any agent of the Company or the Trustee shall be entitled to all the rights
set forth in this Article 13 with respect to any Senior Debt which may at any time be held by
it in its individual capacity or any other capacity to the same extent as any other holder of
Senior Debt and nothing in this Indenture shall deprive the Trustee or any such agent of any of its
rights as such holder.




          The Trustee shall not liable to any such holders if the Trustee shall in good faith mistakenly
pay over or distribute to Holders of Securities or to the Company or to any other person cash,
property or securities to which any holders of Senior Debt shall be entitled by virtue of this
Article or otherwise.




          With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in this Article 13,
and no implied covenants or obligations with respect to the holders of Senior Debt shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt.




          Whenever a payment or distribution is to be made or a notice given to holders or owners of
Senior Debt, the payment or distribution may be made and the notice may be given to their
Representative, if any.





          Section  13.10
Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt.


          No right of any present or future holders of any Senior Debt to enforce subordination as
provided herein shall at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms of this Indenture,




65









 




regardless of any knowledge thereof which any such holder may have or otherwise be charged
with.




          Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Debt may, at any time and from time to time, without the consent of or notice to the Trustee or the
Holders, without incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article 13 or the obligations hereunder of the
Holders to the holders of the Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt,
or otherwise amend or supplement in any manner Senior Debt, or any instrument evidencing or
securing the same or any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt;
(iii) release any Person liable in any manner for the payment or collection of Senior Debt; and
(iv) exercise or refrain from exercising any rights against the Company or any other Person.




          Section 13.11 Holders Authorize Trustee To Effectuate Subordination of Securities.




          Each Holder by its acceptance of the Securities authorizes and expressly directs the Trustee
on its behalf to take such action as may be necessary or appropriate to effectuate, as between the
holders of Senior Debt and the Holders, the subordination provided in this Article 13, and
appoints the Trustee its attorney-in-fact for such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an assignment for the
benefit of creditors or otherwise) tending towards liquidation of the business and assets of the
Company, the filing of a claim for the unpaid balance of its Securities and accrued interest in the
form required in those proceedings.




          If the Trustee does not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such claim or claims, then
the holders of the Senior Debt or their Representative are hereby authorized to have the right to
file and are hereby authorized to file an appropriate claim for and on behalf of the Holders of
said Securities. Nothing herein contained shall be deemed to authorize the Trustee or the holders
of Senior Debt or their Representative to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee or the holders of
Senior Debt or their Representative to vote in respect of the claim of any Holder in any such
proceeding.




          Section 13.12 This Article 13 Not To Prevent Events of Default.




          The failure to make a payment on account of principal of or interest on the Securities by
reason of any provision of this Article 13 will not be construed as preventing the occurrence
of an Event of Default.




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          Section 13.13 Trustee’s Compensation Not Prejudiced.




          Nothing in this Article 13 will apply to amounts due to the Trustee pursuant to other
Sections in this Indenture.




* * * * *




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




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




	 	 	 	 	 
	 	TENNECO INC.

 	 
	 	BY  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

   as Trustee

 	 
	 	BY  	 	 
	 	Name:  	 	 
	 	Title: