EX-4.1.3






Exhibit
4.1.3

ATLAS AIR WORLDWIDE HOLDINGS, INC.,




as Issuer




and



[                        
                            ],





as Trustee




INDENTURE




Dated as of [•], 2009




 









 





CROSS-REFERENCE TABLE




	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	310
	 	(a)(1)	 	6.9
	 
	 	(a)(2)	 	6.9
	 
	 	(a)(3)	 	N.A.
	 
	 	(a)(4)	 	N.A.
	 
	 	(b)	 	6.8
	 
	 	(c)	 	N.A.
	311
	 	(a)	 	6.13
	 
	 	(b)	 	6.13
	 
	 	(c)	 	N.A.
	312
	 	(a)	 	7.1
	 
	 	(b)	 	7.2
	 
	 	(c)	 	7.2
	313
	 	(a)	 	7.3
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	7.3
	 
	 	(d)	 	7.3
	314
	 	(a)	 	7.4
	 
	 	(b)	 	N.A.
	 
	 	(c)(1)	 	1.2
	 
	 	(c)(2)	 	1.2
	 
	 	(c)(3)	 	N.A.
	 
	 	(d)	 	N.A.
	 
	 	(e)	 	1.2
	 
	 	(f)	 	N.A.
	315
	 	(a)	 	6.1, 6.3
	 
	 	(b)	 	6.2
	 
	 	(c)	 	6.1
	 
	 	(d)	 	6.1
	 
	 	(e)	 	5.14
	316
	 	(a)(1)(A)	 	5.12
	 
	 	(a)(1)(B)	 	5.13
	 
	 	(a)(2)	 	N.A.
	 
	 	(a)(last sentence)	 	1.1 (“Outstanding”)
	 
	 	(b)	 	5.7, 5.8
	 
	 	(c)	 	5.12, 10.7
	317
	 	(a)(1)	 	5.3
	 
	 	(a)(2)	 	5.4
	 
	 	(b)	 	4.2
	318
	 	(a)	 	1.7






N.A. means Not Applicable.




 






Note: This Cross-Reference Table shall not be deemed to be part of the Indenture.




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 	 	2	 
	Section 1.1.
	 	Definitions	 	 	2	 
	Section 1.2.
	 	Compliance Certificates and Opinions	 	 	7	 
	Section 1.3.
	 	Form of Documents Delivered to Trustee	 	 	8	 
	Section 1.4.
	 	Acts of Holders	 	 	8	 
	Section 1.5.
	 	Notices, Etc., to Trustee or Company	 	 	10	 
	Section 1.6.
	 	Notice to Holders; Waiver	 	 	10	 
	Section 1.7.
	 	Conflict with Trust Indenture Act	 	 	11	 
	Section 1.8.
	 	Effect of Headings and Table of Contents	 	 	11	 
	Section 1.9.
	 	Successors and Assigns	 	 	11	 
	Section 1.10.
	 	Separability Clause	 	 	11	 
	Section 1.11.
	 	Benefits of Indenture	 	 	11	 
	Section 1.12.
	 	Governing Law	 	 	11	 
	Section 1.13.
	 	Legal Holidays	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE II SECURITY FORMS	 	 	12	 
	Section 2.1.
	 	Forms Generally	 	 	12	 
	Section 2.2.
	 	Form of Trustee’s Certificate of Authentication	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE III THE SECURITIES	 	 	13	 
	Section 3.1.
	 	Amount Unlimited; Issuable in Series	 	 	13	 
	Section 3.2.
	 	Denominations	 	 	15	 
	Section 3.3.
	 	Execution, Authentication, Delivery and Dating	 	 	15	 
	Section 3.4.
	 	Temporary Securities	 	 	17	 
	Section 3.5.
	 	Registration; Registration of Transfer and Exchange	 	 	18	 
	Section 3.6.
	 	Mutilated, Destroyed, Lost and Stolen Securities	 	 	19	 
	Section 3.7.
	 	Payment of Interest; Interest Rights Preserved	 	 	20	 
	Section 3.8.
	 	Persons Deemed Owners	 	 	21	 
	Section 3.9.
	 	Cancellation	 	 	21	 
	Section 3.10.
	 	Computation of Interest	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE IV SATISFACTION AND DISCHARGE	 	 	22	 
	Section 4.1.
	 	Satisfaction and Discharge of Indenture	 	 	22	 
	Section 4.2.
	 	Application of Trust Money	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE V REMEDIES	 	 	23	 
	Section 5.1.
	 	Events of Default	 	 	23	 
	Section 5.2.
	 	Acceleration of Maturity; Rescission and Annulment	 	 	25	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	 	 	 	 	 
	Section 5.3.
	 	Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	27	 
	Section 5.4.
	 	Trustee May File Proofs of Claim	 	 	27	 
	Section 5.5.
	 	Trustee May Enforce Claims Without Possession of Securities	 	 	28	 
	Section 5.6.
	 	Application of Money Collected	 	 	28	 
	Section 5.7.
	 	Limitation on Suits	 	 	29	 
	Section 5.8.
	 	Unconditional Right of Holders to Receive Principal, Premium and Interest	 	 	29	 
	Section 5.9.
	 	Restoration of Rights and Remedies	 	 	30	 
	Section 5.10.
	 	Rights and Remedies Cumulative	 	 	30	 
	Section 5.11.
	 	Delay or Omission Not Waiver	 	 	30	 
	Section 5.12.
	 	Control by Holders	 	 	30	 
	Section 5.13.
	 	Waiver of Past Defaults	 	 	31	 
	Section 5.14.
	 	Undertaking for Costs	 	 	31	 
	Section 5.15.
	 	Waiver of Usury, Stay or Extension Laws	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE VI THE TRUSTEE	 	 	32	 
	Section 6.1.
	 	Certain Duties and Responsibilities	 	 	32	 
	Section 6.2.
	 	Notice of Defaults	 	 	33	 
	Section 6.3.
	 	Certain Rights of Trustee	 	 	33	 
	Section 6.4.
	 	Not Responsible for Recitals or Issuance of Securities	 	 	35	 
	Section 6.5.
	 	May Hold Securities	 	 	35	 
	Section 6.6.
	 	Money Held in Trust	 	 	35	 
	Section 6.7.
	 	Compensation and Reimbursement	 	 	35	 
	Section 6.8.
	 	Disqualification; Conflicting Interests	 	 	36	 
	Section 6.9.
	 	Corporate Trustee Required; Eligibility	 	 	36	 
	Section 6.10.
	 	Resignation and Removal; Appointment of Successor	 	 	36	 
	Section 6.11.
	 	Acceptance of Appointment by Successor	 	 	38	 
	Section 6.12.
	 	Merger, Conversion, Consolidation or Succession to Business	 	 	39	 
	Section 6.13.
	 	Preferential Collection of Claims	 	 	39	 
	Section 6.14.
	 	Appointment of Authenticating Agent	 	 	39	 
	 
	 	 	 	 	 	 
	ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY	 	 	41	 
	Section 7.1.
	 	Company to Furnish Trustee Names and Addresses of Holders	 	 	41	 
	Section 7.2.
	 	Preservation of Information; Communications to Holders	 	 	41	 
	Section 7.3.
	 	Reports by Trustee	 	 	41	 
	Section 7.4.
	 	Reports by Company	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	 	43	 
	Section 8.1.
	 	Company May Consolidate, Etc., Only on Certain Terms	 	 	43	 
	Section 8.2.
	 	Successor Substituted	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES	 	 	44	 
	Section 9.1.
	 	Supplemental Indentures Without Consent of Holders	 	 	44	 
	Section 9.2.
	 	Supplemental Indentures with Consent of Holders	 	 	45	 






ii 









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	 	 	 	 	 
	Section 9.3.
	 	Execution of Supplemental Indentures	 	 	46	 
	Section 9.4.
	 	Effect of Supplemental Indentures	 	 	46	 
	Section 9.5.
	 	Conformity with Trust Indenture Act	 	 	46	 
	Section 9.6.
	 	Reference in Securities to Supplemental Indentures	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE X COVENANTS	 	 	47	 
	Section 10.1.
	 	Payment of Principal, Premium and Interest	 	 	47	 
	Section 10.2.
	 	Maintenance of Office or Agency	 	 	47	 
	Section 10.3.
	 	Money for Securities Payments to Be Held in Trust	 	 	47	 
	Section 10.4.
	 	Corporate Existence	 	 	48	 
	Section 10.5.
	 	Maintenance of Properties	 	 	49	 
	Section 10.6.
	 	Statement by Officers as to Default	 	 	49	 
	Section 10.7.
	 	Waiver of Covenant	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE XI REDEMPTION OF SECURITIES	 	 	50	 
	Section 11.1.
	 	Applicability of Article	 	 	50	 
	Section 11.2.
	 	Election to Redeem; Notice to Trustee	 	 	50	 
	Section 11.3.
	 	Selection by Trustee of Securities to Be Redeemed	 	 	50	 
	Section 11.4.
	 	Notice of Redemption	 	 	51	 
	Section 11.5.
	 	Deposit of Redemption Price	 	 	51	 
	Section 11.6.
	 	Securities Payable on Redemption Date	 	 	52	 
	Section 11.7.
	 	Securities Redeemed in Part	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE XII SINKING FUNDS	 	 	52	 
	Section 12.1.
	 	Applicability of Article	 	 	52	 
	Section 12.2.
	 	Satisfaction of Sinking Fund Payments with Securities	 	 	53	 
	Section 12.3.
	 	Redemption of Securities for Sinking Fund	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE	 	 	53	 
	Section 13.1.
	 	Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance	 	 	53	 
	Section 13.2.
	 	Defeasance and Discharge	 	 	54	 
	Section 13.3.
	 	Covenant Defeasance	 	 	54	 
	Section 13.4.
	 	Conditions to Defeasance or Covenant Defeasance	 	 	54	 
	Section 13.5.
	 	Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE XIV SUBORDINATION OF SECURITIES	 	 	57	 
	Section 14.1.
	 	Securities Subordinate to Senior Indebtedness	 	 	57	 
	Section 14.2.
	 	Payment Over of Proceeds Upon Dissolution, Etc	 	 	57	 
	Section 14.3.
	 	No Payment When Senior Indebtedness in Default	 	 	58	 
	Section 14.4.
	 	Payment Permitted If No Default	 	 	59	 
	Section 14.5.
	 	Subrogation to Rights of Holders of Senior Indebtedness	 	 	59	 
	Section 14.6.
	 	Provisions Solely to Define Relative Rights	 	 	59	 






iii 









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	 	 	 	 	 
	Section 14.7.
	 	Trustee to Effectuate Subordination	 	 	60	 
	Section 14.8.
	 	No Waiver of Subordination Provisions	 	 	60	 
	Section 14.9.
	 	Notice to Trustee	 	 	60	 
	Section 14.10.
	 	Reliance on Judicial Order or Certificate of Liquidating Agent	 	 	61	 
	Section 14.11.
	 	Trustee Not Fiduciary for Holders of Senior Indebtedness	 	 	61	 
	Section 14.12.
	 	Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights	 	 	61	 
	Section 14.13.
	 	Article Applicable to Paying Agents	 	 	62	 







iv 











 





     INDENTURE, dated as of [•], 2009, between Atlas Air Worldwide Holdings, Inc., a Delaware
corporation (herein called the “Company”), having its principal executive offices at 2000
Westchester Avenue, Purchase, New York, and [          ] National Association, a national
banking association, as trustee (herein 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 senior debentures, notes or other evidences of
indebtedness (herein called the “Securities”), to be issued in one or more series as in this
Indenture provided.



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



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE I




DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION



Section 1.1. Definitions.




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




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




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




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




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



 









 





     “Act”, when used with respect to any Holder, has the meaning specified in Section
1.4(a).



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



     “Authenticating Agent” means any Person authorized by the Trustee to act on behalf of the
Trustee to authenticate Securities.



     “Block-out Notice” has the meaning specified in Section 14.3.



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



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



     “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in The City of New York or the city in which the Corporate Trust
Office is located are required or authorized to close.



     “Capital Lease Obligations” means with respect to any Person any obligation which is required
to be classified and accounted for as a capital lease on the face of a balance sheet of such Person
prepared in accordance with generally accepted accounting principles; the amount of such obligation
shall be the capitalized amount thereof, determined in accordance with generally accepted
accounting principles; and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.



     “Capital Stock” for any corporation means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that corporation.



     “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.



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



2









 





     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by any two Officers.



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



     The term “corporation” includes corporations, associations, companies (including limited
liability companies) and business trusts.



     The terms “covenant defeasance” and “defeasance” bear the meanings assigned to such terms,
respectively, by Sections 13.3 and 13.2.



     The term “default”, when used in Section 6.2, has the meaning specified in Section 6.2.



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



     “Depositary” means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person designated as Depositary for
such series by the Company pursuant to Section 3.1(b)(15), which Person shall be a clearing agency
registered under the Securities Exchange Act of 1934, as amended; and if at any time there is more
than one such Person, “Depositary” as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of such series.



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



     “Global Security” or “Global Securities” means a Security or Securities, as the case may be,
evidencing all or part of a series of Securities, issued to the Depositary for such series or its
nominee, and registered in the name of such Depositary or nominee.



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



     “Indebtedness” of any person means indebtedness for borrowed money and indebtedness under
purchase money mortgages or other purchase money liens or conditional sales or similar title
retention agreements, in each case where such indebtedness has been created, incurred, or assumed
by such person to the extent such indebtedness would appear as a liability upon a balance sheet of
such Person prepared in accordance with generally accepted accounting principles, guarantees by
such Person of such indebtedness, and indebtedness for borrowed money secured by any mortgage,
pledge or other lien or encumbrance upon property owned by such Person, even though such person has
not assumed or become liable for the payment of such indebtedness.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 3.1.



3









 





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



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



     “Market Exchange Rate” has the meaning specified in Section 1.4(f).



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



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



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



     “Officers’ Certificate” means a certificate signed by any two Officers. An Officers’
Certificate provided pursuant to Section 10.6 shall be signed by the principal executive, financial
or accounting Officer of the Company.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company
(including an employee or officer of the Company or any of its Affiliates) and who shall be
reasonably acceptable to the Trustee.



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



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




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




     (ii) Securities for whose payment or redemption money (or in the case of payment by
defeasance under Section 13.2, money, U.S. Government Obligations or both) 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
provided further, in the case of payment by defeasance under Section 13.2,
that all conditions precedent to the application of such Section shall have been satisfied;
and



4









 






     (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 the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 5.2 and (ii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in 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 independent right so to act with
respect to such Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.




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



     “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 the principal of (and premium, if any) and interest on the Securities of that series
are payable as specified as contemplated by Section 3.1 or, if not so specified, the City of New
York, New York.



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



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



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



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



5









 





     “Responsible Officer”, when used with respect to the Trustee, means any officer in the
Corporate Trust Office of the Trustee with direct responsibility for the administration of this
Indenture 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.



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



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



     “Senior Indebtedness” means all of the Company’s obligations, whether presently existing or
from time to time hereafter incurred, created, assumed or existing, to pay principal, premium,
interest, penalties, fees and any other payment in respect of any of the following: (a) all
obligations of the Company for borrowed money, including without limitation, such obligations as
are evidenced by credit agreements, notes, debentures, bonds or other securities or instruments,
(b) all Capital Lease Obligations, Synthetic Lease Obligations and finance lease obligations of the
Company, (c) all obligations of the Company for reimbursement on any letter of credit, banker’s
acceptance, security purchase facility or similar credit facility, (d) all obligations of the
Company issued or assumed as the deferred purchase price of property or services, (e) all payment
obligations of the Company under interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements at the time of determination, including any such obligations
of the Company incurred solely to act as a hedge against increases in interest rates that may occur
under the terms of other outstanding variable or floating rate indebtedness of the Company, (f) all
obligations of the types referred to in paragraphs (a) through (e) above of another Person which
the Company has assumed, endorsed, guaranteed, contingently agreed to purchase or provide funds for
the payment of, or otherwise become liable for, under any agreement, and (g) all amendments,
renewals, extensions, modifications, refinancings, replacements or refundings by the Company of any
such Senior Indebtedness referred to in paragraphs (a) through (f) above (and of any such amended,
renewed, extended, modified, refinanced, replaced or refunded Senior Indebtedness; provided,
however, that the following shall not constitute Senior Indebtedness: any obligation, amendment,
renewal, extension, modification, refinancing, replacement or refunding that by the terms of the
instrument creating or evidencing it or the assumption or guarantee of it provides that (i) it is
not superior in right of payment to the Securities or (ii) such obligation or indebtedness is
subordinated to Senior Indebtedness to substantially the same extent as the Securities are
subordinated to Senior Indebtedness.



     “Senior Lender” means any holder of Senior Indebtedness.



     “Senior Vice President” means any senior vice president, whether or not designated by a number
or a word or words added before or after the title “senior vice president”.



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



6









 





     “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” means (i) a corporation, a majority of whose Capital Stock with voting power,
under ordinary circumstances, to elect directors is, at the date of determination, directly or
indirectly owned by the Company, by one or more Subsidiaries of the Company or by the Company and
one or more Subsidiaries of the Company, (ii) a partnership in which the Company or a Subsidiary of
the Company holds a majority interest in the equity capital or profits of such partnership, or
(iii) any other Person (other than a corporation or partnership) in which the Company, a Subsidiary
of the Company or the Company and one or more Subsidiaries of the Company, directly or indirectly,
at the date of determination, has (x) at least a majority ownership interest or (y) the power to
elect or direct the election of a majority of the directors or other governing body of such person.



     “Synthetic Lease Obligation” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on a balance sheet under generally accepted accounting principles.



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed, except as provided in Section 9.5 and, to the extent required
by any amendment thereto, the Trust Indenture Act of 1939, as amended.



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



     “U.S. Government Obligation” has the meaning set forth in Section 13.4(a).


Section 1.2. Compliance Certificates and Opinions.




     (a) 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.



7









 





     (b) Every certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than certificates provided pursuant to Section 10.6) shall
include:




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




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




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




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


Section 1.3. Form of Documents Delivered to Trustee.




     (a) 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 more documents.



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



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


Section 1.4. 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



8









 







person or by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred
to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.



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



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



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



     (e) The Depositary selected pursuant to subsection (15) of Section 3.1, as a Holder, may
appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to
give or take hereunder.



     (f) Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 3.1 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all series or
all series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any series which are denominated in a coin or currency other than U.S.
Dollars, then the principal amount of Securities of such series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of U.S. Dollars that could
be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
1.04(f), “Market Exchange Rate” shall mean the noon U.S. Dollar buying rate in The City of New York
for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such
Market Exchange Rate is not available for any reason with respect to such currency, the Trustee
shall use, in its sole discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or quotations from one or more major banks



9









 







in The City of New York or in the country of issue of the currency in question or such other
quotations as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a series denominated in currency other than U.S. Dollars in connection with any
action taken by Holders of Securities pursuant to the terms of this Indenture. All decisions and
determinations of the Trustee regarding the Market Exchange Rate or any alternative determination
provided for in this paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Company and all Holders.


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




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




     (1) the Trustee by any Holder or 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, or




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




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



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



10









 




Section 1.7. 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 provision shall control. If any provision hereof limits, qualifies or conflicts with the
duties imposed by Section 318(c) of the Trust Indenture Act such imposed duties shall control. If
any provision of the Indenture limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under the Trust Indenture Act to be a part of and govern the
Indenture, such provision of the Trust Indenture Act shall control. If any provision of the
Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to the Indenture as such provision of the
Trust Indenture Act is so modified or excluded, as the case may be.


Section 1.8. 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 1.9. Successors and Assigns.




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


Section 1.10. Separability Clause.




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


Section 1.11. Benefits of Indenture.




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


Section 1.12. 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 1.13. 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 of the Securities) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made on



11









 







the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest
shall accrue on the amount then payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.



ARTICLE II




SECURITY FORMS



Section 2.1. Forms Generally.




     (a) The Securities of each series shall be in substantially the form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the Officers executing such
Securities, as evidenced by their execution of such Securities. If the form of Securities of any
series is established by action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such Securities.



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


Section 2.2.Form of Trustee’s Certificate of Authentication.




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



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



	 	 	 	 	 
	 	[                    ] National Association,

as Trustee

 	 
	 	By  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




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ARTICLE III




THE SECURITIES



Section 3.1. Amount Unlimited; Issuable in Series.




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



     (b) The Securities may be issued in one or more series. There shall be established in or
pursuant to a Board Resolution, and (subject to Section 3.3) set forth or determined as provided in
an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series,




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




     (2) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);




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




     (4) the date or dates on which the principal of the Securities of the series is payable
and/or the method by which such date or dates shall be determined;




     (5) the rate or rates (or method for establishing the rate or rates) at which the
Securities of the series shall bear interest, if any, 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 any Interest Payment Date (or method
for establishing such date or dates);




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




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




     (8) any provisions relating to convertibility or exchangeability of the Securities for
other Securities or any equity securities of the Company;



13









 






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




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




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




     (12) if other than such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public or private debts, the currency or
currencies (including composite currencies) in which payment of the principal of (and
premium, if any) and/or interest on the Securities of the series shall be payable;




     (13) if the principal of (and premium, if any) and/or interest on the Securities of the
series are to be payable, at the election of the Company or any Holder, in a currency or
currencies (including composite currencies) other than that in which the Securities are
stated to be payable, the period or periods within which, and the terms and conditions, upon
which, such election may be made;




     (14) if the amounts of payments of principal of (and premium, if any) and/or interest
on the Securities of the series may be determined with reference to an index, the manner in
which such amounts shall be determined;




     (15) in the case of Securities of a series the terms of which are not established
pursuant to subsection (11), (12) or (13) above, whether either or both of Section 13.2 or
Section 13.3 shall be applicable to the Securities of such series; or, in the case of
Securities the terms of which are established pursuant to subsection (11), (12) or (13)
above, the adoption and applicability, if any, to such Securities of any terms and
conditions similar to those contained in Section 13.2 and/or Section 13.3;




     (16) whether the Securities of the series shall be issued in whole or in part in the
form of one or more Global Securities and, in such case, the Depositary for such Global
Security or Securities;




     (17) any additional or different events of default that apply to Securities of the
series, and any change in the right of the Trustee or the Holders of such Securities to
declare the principal thereof due and payable;




     (18) any additional or different covenants that apply to Securities of the series;




     (19) the form of the Securities of the series; and



14









 






     (20) any other terms of the series (which terms shall not contradict the provisions of
this Indenture).



     (c) All Securities of any one series shall be substantially identical except as to interest
rates, method for determining interest rates, Interest Payment Dates, Regular Record Dates,
redemption terms, Stated Maturity, denomination, date of authentication, currency, any index for
determining amounts payable, and except as may otherwise be provided in or pursuant to such Board
Resolution and set forth or determined as provided in such Officers’ Certificate or in any such
indenture supplemental hereto.



     (d) If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series. With respect to Securities of a
series constituting a medium term note program, such Board Resolution may provide general terms or
parameters for Securities of such series and may provide that the specific terms of particular
Securities of such series, and the Persons authorized to determine such terms or parameters, may be
determined in accordance with or pursuant to the Company Order referred to in Section 3.3.


Section 3.2. Denominations.




     The Securities of each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 3.1. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.


Section 3.3. Execution, Authentication, Delivery and Dating.




     (a) The Securities shall be executed on behalf of the Company by any Officer 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.



     (b) 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.



     (c) At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities; provided, that, with respect to Securities of a series constituting a medium term
note program, the Trustee shall authenticate and deliver Securities of such series for original
issue from time to time in the aggregate principal amount established for such series pursuant to
such procedures acceptable to the Trustee and to such recipients as may be specified from time to
time by a Company Order. The maturity dates, original issue dates, interest rates



15









 







and any other
terms of the Securities of such series shall be determined by or pursuant to such
Company Order and procedures. If provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral instructions from the Company or its duly
authorized agent, which instructions shall be promptly confirmed in writing.



     (d) If the form or terms of the Securities of the series have been established in or pursuant
to one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating,




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




     (2) if the terms of any of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 3.1, that such terms have been established in
conformity with the provisions of this Indenture; and




     (3) that such Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of creditors’ rights
and to general equity principles.



     (e) Notwithstanding that such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities pursuant to this Indenture
would adversely 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.



     (f) Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to the preceding paragraph at or prior to the
time of authentication of each Security of such series if such documents have been delivered at or
prior to the time of authentication upon original issuance of the first Security of such series to
be issued.



     (g) With respect to Securities of a series constituting a medium term note program, if the
form and general terms of the Securities of such series have been established by or pursuant to one
or more Board Resolutions or by an indenture supplemental hereto, as permitted by Sections 2.1 and
3.1 in authenticating such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, in addition to the



16









 







foregoing documents and
Opinion of Counsel, or in lieu of clause (c) above, an Opinion of Counsel stating that the
Securities have been duly authorized by the Company and, when duly
executed by the Company and completed and authenticated by the Trustee in accordance with the
Indenture and issued, delivered and paid for in accordance with any applicable distribution
agreement, will have been duly issued under the Indenture and will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting the
enforcement of creditors’ rights and to general equity principles.



     (h) Each Security shall be dated the date of its authentication.



     (i) No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.9 together with a written
statement (which need not comply with Section 1.2 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.


Section 3.4. Temporary Securities.




     (a) Pending the preparation of definitive Securities of any series, the Company may execute,
and upon Company Order from the Company, the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities in lieu of which
they are issued, with such appropriate insertions, omissions, substitutions and other variations as
the Officers executing such Securities may determine, as evidenced by their execution of such
Securities.



     (b) If temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the temporary Securities of such series
at the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series and of like tenor, of authorized
denominations. 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.



17









 




Section 3.5. Registration; Registration of Transfer and Exchange.




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



     (b) Upon surrender for registration of transfer of any Security of any series at an office or
agency of the Company in a Place of Payment designated by the Company pursuant to Section 10.2 for
that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.



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



     (d) 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.



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



     (f) No service charge shall be made for any registration of transfer or for exchange of
Securities, but the Company or the Trustee 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.



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



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     (h) Notwithstanding the foregoing, any Global Security shall be exchangeable pursuant to this
Section 3.5 for Securities registered in the names of Persons other than the Depositary for such
Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if any time such Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company executes and delivers to the Trustee a Company Order that such Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing an Event of Default of which the
Trustee has been notified with respect to the Securities. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as
the Depositary shall direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.



     (i) Notwithstanding any other provision in this Indenture, a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global Security to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary.


Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.




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



     (b) If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of any 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 lieu of any such destroyed, lost or stolen Security, a new Security of the same series
and of like tenor and principal amount, and bearing a number not contemporaneously outstanding.



     (c) 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.



     (d) Upon the issuance of any new Security under this Section, the Company or the Trustee 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
and its counsel) connected therewith.



     (e) 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



19









 







enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.



     (f) 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.




     (a) Unless otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.



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




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date (as defined below) for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a special record date (the “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 Securities of such series at his
address as it appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).



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



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


Section 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 principal of (and
premium, if any) and (subject to Section 3.7) interest on 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.


Section 3.9. Cancellation.




     All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order from the Company.


Section 3.10. Computation of Interest.




     Except as otherwise specified as 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.



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ARTICLE IV




SATISFACTION AND DISCHARGE



Section 4.1. Satisfaction and Discharge of Indenture.




     (a) This Indenture shall upon Company Request from the Company cease to be of further effect
with respect to Securities of any series (except as to any surviving rights of registration of
transfer or exchange of Securities of such series and replacement of lost, stolen or
mutilated Securities of such series herein expressly provided for), and the Trustee, on the
demand of and at the expense of the Company, shall execute instruments acknowledging satisfaction
and discharge of this Indenture with respect to such series, when




     (1) either




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




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




     (i) have become due and payable, or




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




     (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption,




     and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire indebtedness on such Securities of
such series not theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in the case of
Securities of such series which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be; and




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



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



     (b) At any time when no Securities of any series are outstanding, this Indenture shall upon
Company Request cease to be of further effect and the Trustee, at the expense of the Company, shall
execute instruments of satisfaction and discharge of this Indenture.



     (c) 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 (B) of clause (1) of this Section, the obligations of the
Trustee under Section 4.2 and the last paragraph of Section 10.3 shall survive.


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, all money and U.S. Government Obligations deposited with the
Trustee pursuant to Section 13.2 or Section 13.3 and all money received by the Trustee in respect
of U.S. Government Obligations deposited with the Trustee pursuant to Section 13.2 or Section 13.3,
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 Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has been deposited with
or received by the Trustee as contemplated by Section 4.1, Section 13.2 or Section 13.3.



ARTICLE V




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 or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):




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




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




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



23









 






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




     (5) a default under any bond, debenture, note or other evidence of or agreement for
Indebtedness by the Company (including a default with respect to Securities of any series
other than that series) or under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company (including this Indenture), whether such Indebtedness now exists or shall
hereafter be created, which default shall have resulted in such Indebtedness in an aggregate
principal amount of $25,000,000 or more becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, without such acceleration
having been rescinded or annulled, within a period of 10 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities
of that series a written notice specifying such default and requiring the Company to cause
such acceleration to be rescinded or annulled and stating that such notice is a “Notice of
Default” hereunder; provided, however, that, subject to the provisions of
Sections 6.1 and 6.2, the Trustee shall not be deemed to have knowledge of such default
unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such
default or (B) a Responsible Officer of the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such Indebtedness or from
the trustee under any such mortgage, indenture or other instrument; or




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



24









 






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




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



     Subject to the provisions of Section 6.1 hereof, the Trustee shall not be deemed to have
knowledge of an Event of Default hereunder (except for those described in paragraphs (1) through
(3) above) unless a Responsible Officer of the Trustee shall have actual knowledge thereof or shall
have received written notice thereof.


Section 5.2. Acceleration of Maturity; Rescission and Annulment.




     (a) If an Event of Default with respect to Securities of any series at the time Outstanding
(other than an Event of Default specified in clause (6) or (7) of Section 5.1) occurs and is
continuing, then and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. If an Event of Default specified in
clause (6) or (7) of Section 5.1 occurs, the principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of the Outstanding Securities of that
series shall be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder of any Security of that series.



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



25









 






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




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




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




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




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



     and




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



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



     (d) Upon receipt by the Trustee of any declaration of acceleration, or rescission and
annulment thereof, with respect to Securities of a series all or part of which is represented by a
Global Security, the Trustee shall establish a record date for determining Holders of Outstanding
Securities of such series entitled to join in such declaration of acceleration, or rescission and
annulment, as the case may be, which record date shall be at the close of business on the day the
Trustee receives such declaration of acceleration, or rescission and annulment, as the case may be.
The Holders on such record date, or their duly designated proxies, and only such persons, shall be
entitled to join in such declaration of acceleration, or rescission and annulment, as the case may
be, whether or not such Holders remain Holders after such record date; provided, that unless such
declaration of acceleration, or rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having been obtained prior to the day which is 90
days after such record date, such declaration of acceleration, or rescission and annulment, as the
case may be, shall automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, after expiration of such 90-day period, a new declaration of acceleration, or rescission or
annulment thereof, as the case may be, that is identical to a declaration of acceleration, or
rescission or annulment thereof, which has been canceled pursuant to the provision to the preceding
sentence, in which event a new record date shall be established pursuant to the provision of this
Section 5.2.



26









 




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




     (a) The Company covenants that if:




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




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




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


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, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.




     (b) 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, 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.



     (c) 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.




     (a) 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 (and premium, if any) or interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,



27









 






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




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



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



     (c) Nothing herein contained shall be deemed to authorize the Trustee to authorize, consent
to, 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 to vote in respect of the claim of any Holder in any such proceeding.



     (d) The Trustee shall be entitled to participate as a member of any official committee of
creditors in the matters it deems advisable.


Section 5.5. Trustee May Enforce Claims Without Possession of Securities.




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


Section 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 (or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:




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



28









 






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




     THIRD: To the Company.


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:




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




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




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




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




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


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



Section 5.8. 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 Section 3.7) interest on such Security on the 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 rights shall not be impaired
without the consent of such Holder.




29











 






Section 5.9. Restoration of Rights and Remedies.



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



Section 5.10. Rights and Remedies Cumulative.



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



Section 5.11. Delay or Omission Not Waiver.



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



Section 5.12. Control by Holders.



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




     (1) such direction shall not be in conflict with any rule of law or with this
Indenture, nor subject the Trustee to a risk of personal liability in respect of which the
Trustee has not received indemnification satisfactory to it in its sole discretion
against all losses and expenses caused by taking or not taking such action, and




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



     (b) Upon receipt by the Trustee of any such direction with respect to Securities of a series
all or part of which is represented by a Global Security, the Trustee shall establish a record



30









 







date
for determining Holders of outstanding Securities of such series entitled to join in such
direction, which record date shall be at the close of business on the day the Trustee receives such
direction. The Holders on such record date, or their duly designated proxies, and only such
persons, shall be entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless such majority in principal amount shall have been
obtained prior to the day which is 90 days after such record date, such direction shall
automatically and without further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new direction identical to a direction which has been canceled
pursuant to the provisions to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 5.12.



Section 5.13. Waiver of Past Defaults.



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




     (1) in the payment of the principal of (or premium, if any) or interest on any Security
of such series, or




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



     (b) 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.



     Each party to this Indenture agrees, 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
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,
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 Company,
to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption
Date).



31









 





Section 5.15. Waiver of Usury, Stay or Extension Laws.



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



ARTICLE VI




THE TRUSTEE




Section 6.1. Certain Duties and Responsibilities.



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




     (1) 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




     (2) 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 provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture.



     (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,




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




     (2) 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;



32









 






     (3) 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, determined as provided in
Section 5.12, 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




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



     (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, as
their names and addresses appear in the Security Register, notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest on 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 or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities of such series. For
the purpose of this Section, the term “default” means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of such series.



Section 6.3. Certain Rights of Trustee.



     Subject to the provisions of Section 6.1:



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



     (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, or as otherwise expressly provided herein, and any
resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;



33









 





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



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



     (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture
(including, without limitation, instituting, conducting or defending any litigation), unless such
Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory
to it 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, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;



     (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) except for an Event of Default described in paragraphs (1) through (3) of Section 5.1, the
Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer of
the Trustee shall have actual knowledge thereof or unless written notice of any Event of Default is
received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Securities and this Indenture;



     (i) 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 (including Security Registrar and
Paying Agent), and each agent, custodian and other Person employed to act hereunder;



     (j) the Trustee is not required to give any bond or surety with respect to the performance of
its duties or the exercise of its powers under this Indenture;



     (k) the Trustee shall have no responsibility for any information in any offering document or
other disclosure material distributed with respect to any series of Securities, and the Trustee
shall have no responsibility for compliance with any state or federal securities laws in



34









 







connection
with the Securities, other than the filing of any documents required to be filed by an indenture
trustee pursuant to the Trust Indenture Act or otherwise required in the Indenture; and



     (l) the permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as duties.



Section 6.4. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities, except the Trustee’s certificates 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. The Trustee shall have no responsibility for filing
any financing or continuation statement in any public office at any time or otherwise perfect or
maintain the perfection of any security interest or lien granted to it hereunder or to record this
Indenture.



Section 6.5. May Hold Securities.



     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or of the Trustee, 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 in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.



Section 6.7. Compensation and Reimbursement.



     The Company agrees:




     (1) to pay to the Trustee from time to time such reasonable compensation for its
acceptance of this Indenture and for its services hereunder as Trustee, Paying Agent,
Security Registrar and in all other capacities in which it is serving hereunder as the
Company and the Trustee shall from time to time agree in writing (which compensation shall
not be limited by any provision of law in regard to the compensation of a trustee of an
express trust);




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of its agents



35









 







and
counsel), except any such expense, disbursement or advance as may be attributable to its
negligence, bad faith or willful misconduct; and




     (3) to indemnify the Trustee and its agents, directors, employees and officers for, and
to hold them harmless against, any loss, liability or out-of-pocket expense (including the
reasonable compensation and the expenses and disbursements of its agents and counsel)
incurred without negligence, bad faith or willful misconduct on its or their part, arising
out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and out-of-pocket expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of the Trustee’s
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 upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of, premium, if any,
or interest, if any, on particular Securities. If the Trustee incurs out-of-pocket expenses or
renders services after the occurrence of an Event of Default, the expenses and the compensation for
the services will be intended to constitute expenses of administration under Title 11 of the United
States Bankruptcy Code or any applicable federal or state law for the relief of debtors. The
provisions of this Section 6.7 shall survive the resignation or removal of the Trustee and the
termination of this Indenture.



Section 6.8. Disqualification; Conflicting Interests.



     The Trustee shall comply with the terms of Section 310(b) of the Trust Indenture Act.


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 thereof 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 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 in accordance with the applicable requirements of 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



36









 







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 any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of 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.



     (d) If at any time:




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




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




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


then, in any such case, (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 who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.




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



37









 







others similarly situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.



     (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to all 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 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, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and, upon the execution and delivery of such supplemental indenture, the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring



38









 







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) and (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 the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.



Section 6.13. Preferential Collection of Claims.



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



Section 6.14. Appointment of Authenticating Agent.



     (a) At any time when any of the Securities remain Outstanding, the Trustee may and, upon
request of the Company, shall appoint an Authenticating Agent or Agents with respect to one or more
series of Securities, which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6. 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



39









 







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.



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



     (c) An Authenticating Agent may resign at any time by giving written notice thereof to the
Trustee and 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 the Company, and the
Trustee shall terminate any such agency promptly upon request by 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
and, upon request of the Company, shall 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 of the series with respect to which such
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.



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



     (e) If an appointment of an Authenticating Agent with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed thereon, in lieu of 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.



[                      
         ] National Association,

As Trustee




40









 





	 	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	As Authenticating Agent 	 
	 	 	 	 
	 	 	 
	 	By  	
 	 
	 	 	Authorized Signatory 	 



ARTICLE VII




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY





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



     If the Trustee is not the Security Registrar, the Company will furnish or cause to be
furnished to the Trustee:



     (a) semi-annually (at intervals of not more than six months), not later than 15 days after
each Regular Record Date (or, if there is no Regular Record Date relating to a series,
semi-annually on dates set forth in the Board Resolution or supplemental indenture with respect to
such series), a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such date, and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished.



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 contained in the most recent list furnished to the Trustee as provided in
Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1
upon receipt of a new list so furnished.



     (b) Holders of any series may communicate pursuant to Section 312(b) of the Trust Indenture
Act with other Holders of that series or any other series with respect to their rights under this
Indenture or the Securities of that series or any other series. The Company, the Trustee, the
Registrar and any other Person shall have the protection of Section 312(c) of the Trust Indenture
Act.



Section 7.3. Reports by Trustee.



     (a) Within 60 days after May 15 of each year, commencing the May 15 following the date of this
Indenture, the Trustee shall, to the extent that any of the events described in Section 313(a) of
the Trust Indenture Act occurred within the previous twelve months, but not otherwise, mail to each
Holder a brief report dated as of such date that complies with Section 313(a) of the



41









 







Trust
Indenture Act. The Trustee also shall comply with Sections 313(a), 313(c) and 313(d) of the Trust
Indenture Act.



     (b) A copy of each report at the time of its mailing to Holders shall be mailed to the Company
and filed with the Commission and each securities exchange, if any, on which the Securities of that
series are listed.



     (c) The Company shall notify the Trustee if the Securities of any series become listed on any
securities exchange or of any delisting thereof and the Trustee shall comply with Section 313(d) of
the Trust Indenture Act.



Section 7.4. Reports by Company.



     (a) The Company shall:




     (1) file with the Trustee, within 15 days after the Company files 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 on a national securities exchange as may be prescribed from time to
time in such rules and regulations;




     (2) file with the Trustee and the 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




     (3) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee, such summaries
of any information, documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.



     (b) Delivery of any information, documents and reports to the Trustee pursuant to paragraph
(a) (1) and (a) (2) of this Section 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).



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ARTICLE VIII




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.



     The Company shall not consolidate with or merge into any other corporation or convey, transfer
or lease its properties and assets substantially as an entirety to any Person, and the Company
shall not permit any Person to consolidate with or merge into the Company, unless:




     (1) in case the Company shall consolidate with or merge into another corporation or
convey, transfer or lease its properties and assets substantially as an entirety to any
Person, the corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof or the District
of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all the
Securities and the performance and observance of every covenant of this Indenture on the
part of the Company to be performed or observed;




     (2) immediately after giving effect to such transaction and treating any Indebtedness
which becomes an obligation of the Company or a Subsidiary as a result of such transaction
as having been incurred by the Company or such Subsidiary at the time of such transaction,
no Event of Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and




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



Section 8.2. Successor Substituted.



     Upon any consolidation by the Company with or merger by the Company into any other corporation
or any conveyance, transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 8.1, the successor corporation formed by such consolidation
or into which the Company is merged or the Person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person had been named as the
Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the Securities.



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ARTICLE IX




SUPPLEMENTAL INDENTURES




Section 9.1. Supplemental Indentures Without Consent of Holders.



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




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




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




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




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




     (5) to change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination 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




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




     (7) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series or 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




     (8) 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



44









 







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




     (9) to comply with any requirement of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act.



Section 9.2. Supplemental Indentures with Consent of Holders.



     (a) With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series so 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 (at the direction of the Company) 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 the Securities of such series
or of modifying in any manner the rights of the Holders of Securities of such series under this
Indenture. Without the consent of the Holder of each Outstanding Securities affected thereby, a
supplemental indenture under this Section 9.2 shall not (with respect to any Outstanding Security
held by a non-consenting Holder):




     (1) change the Stated Maturity of, the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security 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




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




     (3) modify any of the provisions of this Section, Section 5.13 or Section 10.7, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the references to
“the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11(b) and 9.1(7).



     (b) 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



45









 







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.



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



     (d) The Company may set a record date for purposes of determining the identity of Holders of
Securities entitled to consent pursuant to this Section. Such record date shall be the later of
(i) thirty days prior to the first solicitation of such consent or (ii) the date of the most recent
list of Holders furnished to the Trustee prior to such solicitation pursuant to Section 7.1.



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 trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and complies with the
provisions hereof (including Section 9.5 hereof). 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 or liabilities 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.



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 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 such Securities may be authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.




46











 





ARTICLE X




COVENANTS



Section 10.1. Payment of Principal, Premium and Interest.




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



     (b) An installment of principal or interest shall be considered paid on the date it is due if
the Trustee or Paying Agent holds on that date money designated for and sufficient to pay such
installment and is not prohibited from paying such money to the Holders pursuant to the terms of
this Indenture or otherwise.


Section 10.2. Maintenance of Office or Agency.




     (a) 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.



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


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




     (a) 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 Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its failure so to act.



     (b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of (and premium, if any) or interest on



47









 




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.




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




     (1) hold all sums held by it for the payment of the principal of (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;




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




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



     (d) 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 of the Company, direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such money.



     (e) 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 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 of the Company
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.



Section 10.4. Corporate Existence.



     Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the preservation thereof
is no longer



48









 




desirable in the conduct of the business of the Company and that the loss thereof is
not disadvantageous in a material respect to the Holders.



Section 10.5. Maintenance of Properties.




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


Section 10.6. Statement by Officers as to Default.




     The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate stating whether or not to the
best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions applicable to the Company and, if the Company shall
be in default, specifying all such defaults and the nature and status thereof of which they may
have knowledge. If any default or Event of Default under clauses (4), (5), (6) or (7) of Section
5.1 has occurred and is continuing, within 10 Business Days after its becoming aware of such
occurrence the Company shall deliver to the Trustee an Officers’ Certificate specifying such event
and what action the Company is taking or proposes to take with respect thereto.


Section 10.7. Waiver of Covenant.




     (a) The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Section 10.5 with respect to the Securities of any series if before the time
for such compliance the Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and effect.



     (b) The Company may set a record date for purposes of determining the identity of Holders of
Securities entitled to waive compliance pursuant to this Section. Such record date shall be the
later of (i) thirty days prior to the first solicitation of such waiver or (ii) the date of the
most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to Section
7.1.



49









 





ARTICLE XI




REDEMPTION OF SECURITIES



Section 11.1. Applicability of Article.




     Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1
for Securities of any series) in accordance with 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 less than all the Securities of like
tenor of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be redeemed. Any such
notice may be cancelled at any time prior to notice of such redemption being mailed to any Holder
and shall thereby be void and of no effect. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with such restriction.


Section 11.3. Selection by Trustee of Securities to Be Redeemed.




     (a) If less than all the Securities of like tenor of any series are to be redeemed, the
particular securities to be redeemed shall be selected by the Trustee, from the Outstanding
Securities of like tenor of such series not previously called for redemption, by lot or any other
such method as the Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of such Securities of a
denomination larger than the minimum authorized denomination for such Securities.



     (b) The Trustee shall promptly notify the Company 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.



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



50









 




Section 11.4. Notice of Redemption.




     (a) Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.



     All notices of redemption shall state:




     (1) the Redemption Date,




     (2) the Redemption Price,




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




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




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




     (6) the CUSIP number and/or similar numbers of such Securities, if any (or any other
numbers used by a Depositary to identify such Securities),




     (7) the place or places where such Securities are to be surrendered for payment of the
Redemption Price, and




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



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


Section 11.5. Deposit of Redemption Price.




     At least one Business Day prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company
shall 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, all the Securities which are to be redeemed on that date.



51









 




Section 11.6. Securities Payable on Redemption Date.




     (a) Notice of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price therein specified
and, from and after such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.



     (b) 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 a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form 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 and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.



ARTICLE XII




SINKING FUNDS



Section 12.1. Applicability of Article.




     (a) 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.



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



52









 




Section 12.2. Satisfaction of Sinking Fund Payments with Securities.




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


Section 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 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 Securities of that series pursuant to Section 12.2
and will also deliver to the Trustee any such Securities. 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 XIII




DEFEASANCE AND COVENANT DEFEASANCE



Section 13.1. Applicability of Article; Company’s Option to Effect Defeasance or Covenant
Defeasance.




     Unless pursuant to Section 3.1 provision is made for either or both of (a) defeasance of the
Securities of a series under Section 13.2 to not be applicable with respect to the Securities of
such series or (b) covenant defeasance of the Securities of a series under Section 13.3 to not be
applicable with respect to the Securities of such series, then the provisions of such Sections
together with the other provisions of this Article Thirteen, shall be applicable to the Securities
of such series, and the Company may at its option by or pursuant to a Board Resolution, at any
time, with respect to the Securities of such series, elect to have either Section 13.2 or Section
13.3 be applied to the Outstanding Securities of such series upon compliance with the conditions
set forth below in this Article Thirteen.



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Section 13.2. Defeasance and Discharge.




     Upon the Company’s exercise of the option set forth in Section 13.1 applicable to this
Section, the Company shall be deemed to have been discharged from its obligations with respect to
the Outstanding Securities of such series on the date the conditions set forth below are satisfied
(hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund described in Section
13.4 and as more fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest on such Securities when such payments are due, (B) the Company’s
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (C) the
rights, powers, trusts, duties, and immunities of the Trustee under Sections 3.5, 3.6, 3.7, 3.9,
4.2, 6.7 and Section 10.3(e), and otherwise the duty of the Trustee to authenticate Securities of
such series issued on registration of transfer or exchange and (D) this Article Thirteen. Subject
to compliance with this Article Thirteen, the Company may exercise its option under this Section
13.2 notwithstanding the prior exercise of its option under Section 13.3 with respect to the
Securities of such series.


Section 13.3. Covenant Defeasance.




     Upon the Company’s exercise of the option set forth in Section 13.1 applicable to this
Section, the Company shall be released from its obligations under Sections 7.4, 8.1(2), 10.5 and
10.6 and any other covenants to be applicable to the Securities of a series as specified pursuant
to Section 3.1 unless specified otherwise pursuant to such Section (and the failure to comply with
any such provisions shall not constitute a default or Event of Default under Section 5.1), and the
occurrence of any event described in Section 5.1(4), (5) and (8) and any other events of default to
be applicable to the Securities of a series as specified pursuant to Section 3.1 unless specified
otherwise pursuant to such Section shall not constitute a default or Event of Default hereunder,
with respect to the Outstanding Securities of such series on and after the date the conditions set
forth below are satisfied (hereinafter, “covenant defeasance”). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such series, the Company may
omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in any such Section with respect to it, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.


Section 13.4. Conditions to Defeasance or Covenant Defeasance.




     The following shall be the conditions to application of either Section 13.2 or Section 13.3 to
the Outstanding Securities of such series:



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     (a) the Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.9 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and dedicated solely to, the
benefit of the holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any) on and each installment
of principal of (premium, if any) and interest on the Outstanding Securities of such series on the
Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding Securities of such series
on the day on which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities. For this purpose, “U.S. Government Obligations” means securities
that are (x) direct obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such 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 principal of or
interest on the U.S. Government Obligation evidenced by such depository receipt;



     (b) no Event of Default with respect to the Securities of such series shall have occurred and
be continuing on the date of such deposit (other than a Default resulting from borrowing of funds
to be applied to such deposit and the grant of any lien securing such borrowing);



     (c) such defeasance or covenant defeasance shall not cause the Trustee for the Securities of
such series to have a conflicting interest for purposes of the Trust Indenture Act with respect to
any securities of the Company;



     (d) such defeasance or covenant defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company is a party or by
which it is bound;



     (e) such defeasance or covenant defeasance shall not cause any Securities of such series then
listed on any registered national securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted;



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     (f) in the case of an election under Section 13.2, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred;



     (g) in the case of an election under Section 13.3, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant defeasance had not
occurred;



     (h) such defeasance or covenant defeasance shall be effected in compliance with any additional
terms, conditions or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1; and



     (i) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to either the defeasance
under Section 13.2 or the covenant defeasance under Section 13.3, as the case may be, have been
complied with.


Section 13.5. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.




     (a) Subject to the provisions of the last paragraph of Section 10.3, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively, for purposes of this Section 13.5, the “Trustee”) pursuant to
Section 13.4 in respect of the Outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company acting as its own
paying agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal (and premium, if any) and interest, but such money
need not be segregated from other funds except to the extent required by law.



     (b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.4
or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding Securities of such series.



     (c) Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money or



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U.S. Government Obligations held by it as provided in Section 13.4 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent defeasance or covenant defeasance.




ARTICLE XIV




SUBORDINATION OF SECURITIES



Section 14.1. Securities Subordinate to Senior Indebtedness.




     The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article, the indebtedness represented by the Securities and the payment of the principal of,
premium, if any, and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all Senior
Indebtedness.


Section 14.2. Payment Over of Proceeds Upon Dissolution, Etc.




     In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative
to the Company or its creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in
money or money’s worth, before the Holders of the Securities are entitled to receive any payment on
account of principal of, premium, if any, or interest on the Securities and to that end the holders
of Senior Indebtedness shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property or securities, which
may be payable or deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up or event.



     In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, before all Senior Indebtedness
is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of
such payment or distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all



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Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the
holder of Senior Indebtedness.




     For purposes of this Article only, the words “cash, property or securities” shall not be
deemed to include shares of stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or readjustment which
are subordinated in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than, the Securities are so
subordinated as provided in this Article. The consolidation of the Company with, or the merger of
the Company into, another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties and assets substantially as an entirety to another Person
upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding
up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or which acquires by conveyance or transfer such
properties and assets substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article
Eight.


Section 14.3. No Payment When Senior Indebtedness in Default




     In the event the Trustee receives notice from the Company or any Senior Lender (or a trustee
therefor) (a “Block-out Notice”) that there shall exist and be continuing (a) any default in the
payment of principal of, premium, if any, or interest on any Senior Indebtedness beyond any
applicable grace period with respect thereto, or (b) any default with respect to Senior
Indebtedness (other than a default specified in clause (a) above) no payment shall be made by the
Company on account of principal of, premium, if any, or interest on the Securities or on account of
the purchase or other acquisition of Securities; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in accordance with Article
Twelve by delivering and crediting pursuant to Section 12.2 Securities which have been acquired
(upon redemption or otherwise) prior to such default in payment or other default; and provided
further that no Block-out Notice given with respect to one or more defaults of the type referred to
in clause (b) above shall be effective to suspend for longer than 179 days from the date that such
a Block-out Notice is first received, in any 360-day period, any payment in respect of principal
of, premium, if any, or interest on the Securities that has become due (or would have become due
but for the provisions of this Section 14.3) and only one such Block-out Notice may be in effect
during any 360-day period.



     In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.



     The provisions of this Section shall not apply to any payment with respect to which Section
14.2 would be applicable.



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Section 14.4. Payment Permitted If No Default.




     Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of creditors or other
marshalling of assets and liabilities of the Company referred to in Section 14.2 or under the
conditions described in Section 14.3, from making payments at any time of principal of, premium,
if any, or interest on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of, premium, if any, or interest
on the Securities or the retention of such payment by the Holders if, at the time of such
application by the Trustee, it did not have knowledge that such payment would have been prohibited
by the provisions of this Article.


Section 14.5. Subrogation to Rights of Holders of Senior Indebtedness.




     Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall
be subrogated to the extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and securities applicable to
the Senior Indebtedness until the principal of, premium, if any, and interest on the Securities
shall be paid in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.


Section 14.6. Provisions Solely to Define Relative Rights.




     The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the principal of, premium, if
any, and interest on the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.



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Section 14.7. Trustee to Effectuate Subordination.




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


Section 14.8. No Waiver of Subordination Provisions.




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



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


Section 14.9. 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 to or by the Trustee in respect of the Securities.



     Notwithstanding the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a Senior Lender or from any
trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.1, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice provided
for in this Section at least three Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to receive such money



60









 




and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior
to such date.




     Subject to the provisions of Section 6.1, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a Senior Lender (or a
trustee therefor) to establish that such notice has been given by a Senior Lender (or a trustee
therefor). In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as holders of Senior Indebtedness to participate
in any payment or distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of such Person under this
Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.


Section 14.10. Reliance on Judicial Order or Certificate of Liquidating Agent.




     Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 6.1, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or distribution, the
holders of the Senior Indebtedness 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.


Section 14.11. Trustee Not Fiduciary for Holders of Senior Indebtedness.




     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it 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 Indebtedness shall be entitled by virtue of this
Article or otherwise.


Section 14.12. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s
Rights.




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



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     Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.7.


Section 14.13. Article Applicable to Paying Agents.




     In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however, that
Section 14.12 shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.



* * * *




     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.



[The remainder of this page intentionally left blank.]




62









 








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



	 	 	 	 	 
	 	Atlas Air Worldwide Holdings, Inc.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	Attest:

 	 
	 	By:  	
 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	[                    ] National Association

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title: