EX-4.1






Exhibit 4.1




      




EXPRESS SCRIPTS, INC.,




AS ISSUER,




ANY GUARANTORS PARTY HERETO,




AND




UNION BANK, N.A.,




AS TRUSTEE,




INDENTURE




DATED AS OF JUNE 9, 2009




DEBT SECURITIES




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	Section 101. Definitions
	 	 	1	 
	Section 102. Compliance Certificates and Opinions
	 	 	8	 
	Section 103. Form of Documents Delivered to Trustee
	 	 	8	 
	Section 104. Acts of Holders; Record Dates
	 	 	9	 
	Section 105. Notices, Etc., to Trustee and Company
	 	 	11	 
	Section 106. Notice to Holders; Waiver
	 	 	11	 
	Section 107. Conflict with Trust Indenture Act
	 	 	11	 
	Section 108. Effect of Headings and Table of Contents
	 	 	11	 
	Section 109. Successors and Assigns
	 	 	12	 
	Section 110. Separability Clause
	 	 	12	 
	Section 111. Benefits of Indenture
	 	 	12	 
	Section 112. Governing Law; Waiver of Jury Trial
	 	 	12	 
	Section 113. Legal Holidays
	 	 	12	 
	Section 114. Indenture and Securities Solely Corporate Obligations
	 	 	12	 
	Section 115. Indenture May be Executed in Counterparts
	 	 	13	 
	Section 116. Acceptance of Trust
	 	 	13	 
	Section 117. Force Majeure
	 	 	13	 
	Section 118. U.S.A. Patriot Act
	 	 	13	 
	 
	 	 	 	 
	ARTICLE TWO SECURITY FORMS
	 	 	13	 
	Section 201. Forms Generally
	 	 	13	 
	Section 202. Form of Face of Security
	 	 	14	 
	Section 203. Form of Reverse of Security
	 	 	16	 
	Section 204. Form of Legend for Global Securities
	 	 	19	 
	Section 205. Form of Trustee’s Certificate of Authentication
	 	 	20	 
	Section 206. Form of Conversion Notice
	 	 	21	 
	 
	 	 	 	 
	ARTICLE THREE THE SECURITIES
	 	 	23	 
	Section 301. Amount Unlimited; Issuable in Series
	 	 	23	 
	Section 302. Denominations
	 	 	26	 
	Section 303. Execution, Authentication, Delivery and Dating
	 	 	26	 
	Section 304. Temporary Securities
	 	 	27	 
	Section 305. Registration; Registration of Transfer and Exchange
	 	 	28	 
	Section 306. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	29	 
	Section 307. Payment of Interest; Interest Rights Preserved
	 	 	30	 
	Section 308. Persons Deemed Owners
	 	 	31	 
	Section 309. Cancellation
	 	 	32	 
	Section 310. Computation of Interest
	 	 	32	 
	Section 311. CUSIP Numbers
	 	 	32	 
	 
	 	 	 	 
	ARTICLE FOUR SATISFACTION AND DISCHARGE
	 	 	33	 
	Section 401. Satisfaction and Discharge of Indenture
	 	 	33	 
	Section 402. Application of Trust Money
	 	 	34	 
	Section 403. Repayment to the Company
	 	 	34	 
	 
	 	 	 	 
	ARTICLE FIVE REMEDIES
	 	 	34	 
	Section 501. Events of Default
	 	 	34	 
	Section 502. Acceleration of Maturity; Rescission and Annulment
	 	 	35	 






i









 






	 	 	 	 	 
	 	 	Page	 
	Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	37	 
	Section 504. Trustee May File Proofs of Claim
	 	 	37	 
	Section 505. Trustee May Enforce Claims Without Possession of Securities
	 	 	38	 
	Section 506. Application of Money Collected
	 	 	38	 
	Section 507. Limitation on Suits
	 	 	39	 
	Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert
	 	 	39	 
	Section 509. Restoration of Rights and Remedies
	 	 	39	 
	Section 510. Rights and Remedies Cumulative
	 	 	40	 
	Section 511. Delay or Omission Not Waiver
	 	 	40	 
	Section 512. Control by Holders
	 	 	40	 
	Section 513. Waiver of Past Defaults
	 	 	40	 
	Section 514. Undertaking for Costs
	 	 	41	 
	Section 515. Waiver of Stay or Extension Laws
	 	 	41	 
	 
	 	 	 	 
	ARTICLE SIX THE TRUSTEE
	 	 	41	 
	Section 601. Certain Duties and Responsibilities
	 	 	41	 
	Section 602. Notice of Defaults
	 	 	42	 
	Section 603. Certain Rights of Trustee
	 	 	42	 
	Section 604. Not Responsible for Recitals or Issuance of Securities
	 	 	43	 
	Section 605. May Hold Securities and Act as Trustee Under Other Indentures
	 	 	44	 
	Section 606. Money Held in Trust
	 	 	44	 
	Section 607. Compensation and Reimbursement
	 	 	44	 
	Section 608. Conflicting Interests
	 	 	45	 
	Section 609. Corporate Trustee Required; Eligibility
	 	 	45	 
	Section 610. Resignation and Removal; Appointment of Successor
	 	 	45	 
	Section 611. Acceptance of Appointment by Successor
	 	 	47	 
	Section 612. Merger, Conversion, Consolidation or Succession to Business
	 	 	47	 
	Section 613. Preferential Collection of Claims Against the Company
	 	 	48	 
	Section 614. Appointment of Authenticating Agent
	 	 	48	 
	 
	 	 	 	 
	ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	50	 
	Section 701. Company to Furnish Trustee Names and Addresses of Holders
	 	 	50	 
	Section 702. Preservation of Information; Communications to Holders
	 	 	50	 
	Section 703. Reports by Trustee
	 	 	51	 
	Section 704. Reports by Company
	 	 	51	 
	 
	 	 	 	 
	ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	51	 
	Section 801. Company May Consolidate, Etc., Only on Certain Terms
	 	 	51	 
	Section 802. Successor Substituted
	 	 	52	 
	 
	 	 	 	 
	ARTICLE NINE SUPPLEMENTAL INDENTURES
	 	 	53	 
	Section 901. Supplemental Indentures Without Consent of Holders
	 	 	53	 
	Section 902. Supplemental Indentures With Consent of Holders
	 	 	54	 
	Section 903. Execution of Supplemental Indentures
	 	 	55	 
	Section 904. Effect of Supplemental Indentures
	 	 	56	 
	Section 905. Conformity with Trust Indenture Act
	 	 	56	 
	Section 906. Reference in Securities to Supplemental Indentures
	 	 	56	 
	 
	 	 	 	 
	ARTICLE TEN COVENANTS
	 	 	56	 
	Section 1001. Payment of Principal, Premium and Interest
	 	 	56	 
	Section 1002. Maintenance of Office or Agency
	 	 	56	 
	Section 1003. Money for Securities Payments to Be Held in Trust
	 	 	57	 
	Section 1004. Statement by Officers as to Default
	 	 	58	 
	Section 1005. Existence
	 	 	58	 
	Section 1006. Payment of Taxes and Other Claims
	 	 	58	 
	Section 1007. Calculation of Original Issue Discount
	 	 	58	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE ELEVEN REDEMPTION OF SECURITIES
	 	 	58	 
	Section 1101. Applicability of Article
	 	 	58	 
	Section 1102. Election to Redeem; Notice to Trustee
	 	 	59	 
	Section 1103. Selection by Trustee of Securities to Be Redeemed
	 	 	59	 
	Section 1104. Notice of Redemption
	 	 	60	 
	Section 1105. Deposit of Redemption Price
	 	 	61	 
	Section 1106. Securities Payable on Redemption Date
	 	 	61	 
	Section 1107. Securities Redeemed in Part
	 	 	61	 
	 
	 	 	 	 
	ARTICLE TWELVE SINKING FUNDS
	 	 	62	 
	Section 1201. Applicability of Article
	 	 	62	 
	Section 1202. Satisfaction of Sinking Fund Payments with Securities
	 	 	62	 
	Section 1203. Redemption of Securities for Sinking Fund
	 	 	62	 
	 
	 	 	 	 
	ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE
	 	 	63	 
	Section 1301. [Intentionally Omitted]
	 	 	63	 
	Section 1302. Defeasance and Discharge
	 	 	63	 
	Section 1303. Covenant Defeasance
	 	 	63	 
	Section 1304. Conditions to Defeasance or Covenant Defeasance
	 	 	63	 
	Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions
	 	 	65	 
	Section 1306. Reinstatement
	 	 	66	 
	 
	 	 	 	 
	ARTICLE FOURTEEN CONVERSION AND EXCHANGE OF SECURITIES
	 	 	66	 
	Section 1401. Applicability of Article
	 	 	66	 
	Section 1402. Exercise of Conversion and Exchange Privilege
	 	 	66	 
	Section 1403. No Fractional Shares
	 	 	67	 
	Section 1404. Adjustment of Conversion and Exchange Price
	 	 	67	 
	Section 1405. Notice of Certain Corporate Actions
	 	 	68	 
	Section 1406. Reservation of Shares of Common Stock
	 	 	69	 
	Section 1407. Payment of Certain Taxes Upon Conversion and Exchange
	 	 	69	 
	Section 1408. Nonassessability
	 	 	69	 
	Section 1409. Provision in Case of Consolidation, Merger or Sale of Assets
	 	 	69	 
	Section 1410. Duties of Trustee Regarding Conversion and Exchange
	 	 	70	 
	Section 1411. Repayment of Certain Funds Upon Conversion and Exchange
	 	 	70	 
	 
	 	 	 	 
	ARTICLE FIFTEEN GUARANTEE
	 	 	71	 
	Section 1501. Unconditional Guarantee
	 	 	71	 
	Section 1502. Execution and Delivery of Guarantee
	 	 	72	 
	Section 1503. Limitation on Guarantors’ Liability
	 	 	73	 
	Section 1504. Release of Guarantors from Guarantee
	 	 	73	 
	Section 1505. Guarantor Contribution
	 	 	74	 
	 
	 	 	 	 
	Notation of Guarantee — Annex A
	 	 	 	 






iii









 






Express Scripts, Inc.




Certain Sections of this Indenture relating to Sections 310

through 318, inclusive, of the Trust Indenture Act of 1939:




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

	 	609
	(a)(2)

	 	609
	(a)(3)

	 	Not Applicable
	(a)(4)

	 	Not Applicable
	(b)

	 	608, 610
	§311 (a)

	 	613
	(b)

	 	613
	§312 (a)

	 	701, 702
	(b)

	 	702
	(c)

	 	702
	§313 (a)

	 	703
	(b)

	 	703
	(c)

	 	703
	(d)

	 	703
	§314 (a)

	 	704
	(a)(4)

	 	101, 1004
	(b)

	 	Not Applicable
	(c)(1)

	 	102
	(c)(2)

	 	102
	(c)(3)

	 	Not Applicable
	(d)

	 	Not Applicable
	(e)

	 	102
	§315 (a)

	 	601
	(b)

	 	602
	(c)

	 	601
	(d)

	 	601
	(e)

	 	514
	§316 (a)

	 	101
	(a)(1)(A)

	 	502, 512
	(a)(1)(B)

	 	513
	(a)(2)

	 	Not Applicable
	(b)

	 	508
	(c)

	 	104
	§317 (a)(1)

	 	503
	(a)(2)

	 	504
	(b)

	 	1003
	§318 (a)

	 	107





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




iv









 








     INDENTURE, dated as of June 9, 2009, among Express Scripts, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (herein called the “Company”), having its
principal executive office at One Express Way, St. Louis, Missouri 63121, any Guarantors (as
defined herein) party hereto, and Union Bank, N.A., a national banking association, as Trustee
(herein called the “Trustee”).



RECITALS OF THE COMPANY AND GUARANTORS




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



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



NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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



ARTICLE ONE




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




     Section 101. Definitions. 



For all purposes of this Indenture and the Securities authenticated and delivered under 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 in the United States, 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 in the United States at the date of this
instrument;



 









 






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




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




     (6) the term “including” means including without limitation.



     “Act,” when used with respect to any Holder, has the meaning specified in Section 104.



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



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



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee empowered by that board to act with respect to this Indenture.



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



     “Business Day,” means, with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close, except as may otherwise be
provided in the form of Securities of any particular series pursuant to the provisions of this
Indenture.



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



     “Common Stock” includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject to redemption by the
Company; provided, however, subject to the provisions of Section 1409, shares
issuable upon conversion of Securities shall include only shares of the class designated as Common
Stock of the Company at the date of this Indenture or shares of any class or classes resulting from
any reclassification or reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption by the Company;
provided, further, that if at any time there
shall be more



2









 







than one such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion which the total number of shares of such class resulting
from all such reclassifications bears to the total number of shares of all such classes resulting
from all such reclassifications.



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



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



     “Constituent Person” has the meaning specified in Section 1409.



     “Corporate Trust Office” means the principal corporate trust office of the Trustee, which
office, at the date of execution of this Indenture, is located at 551 Madison Avenue,
11th Floor, New York, NY 10022, Attention: Corporate Trust Department (Express Scripts
Debt Securities), at which at any particular time its corporate trust business shall be
administered.



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



     “Covenant Defeasance” has the meaning specified in Section 1303.



     “Debt” of any Person at any date means all indebtedness for borrowed money.



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



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



     “Defeasance” has the meaning specified in Section 1302.



     “Depositary” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301, until a
successor Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Depositary” shall mean or include each person who is then a Depositary
hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect
to the Securities of any such series shall mean the Depositary with respect to the Securities of
that series.



3









 





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



     “Event of Default” unless otherwise specified in the supplemental indenture establishing
series of Securities, has the meaning specified in Section 501.



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



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



     “Funding Guarantor” has the meaning specified in Section 1505.



     “Global Security” means a Security that evidences all or part of the Securities of any series,
which is executed by the Company and authenticated and delivered by the Trustee to the applicable
Depositary for such series in accordance with Section 303, and bears the legend set forth in
Section 204 (or such legend as may be specified as contemplated by Section 301 for such
Securities).



     “Guarantee” has the meaning stated in Section 1501(2). The term “Guarantee” used as a verb has
a corresponding meaning.



     “Guarantors” means any Subsidiary of the Company and any other Affiliate of the Company who
may execute this Indenture, or a supplement hereto, for the purpose of providing a Guarantee of
Securities pursuant to this Indenture until (a) a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Guarantors” shall mean such
successor Person or (b) such Person shall have been released from its Guarantee pursuant to the
provisions of this Indenture.



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



     “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, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 301; provided, however, that if at any time more than one Person is acting
as Trustee under this Indenture due to the appointment of one or more separate Trustees for any one
or more separate series of Securities, “Indenture” shall mean, with respect to such series of
Securities for which any such Person is Trustee, this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the terms of particular
series of Securities for which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other series of Securities
for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto
executed and delivered after such person had become such Trustee, but to which such person, as such
Trustee, was not a party; provided, further that in the event that this Indenture
is supplemented or amended by one or more indentures supplemental hereto which are only



4









 







applicable to certain series of Securities, the term “Indenture” for a particular series of
Securities shall only include the supplemental indentures applicable thereto.



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



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



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



     “Non-electing Share” has the meaning specified in Section 1409.



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



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



     “Officers’ Certificate” means a certificate signed by two Officers of the Company, and
delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer of the Company.



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



     “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.



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




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




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



5









 






     (3) Securities as to which Defeasance has been effected pursuant to Section 1302; and




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


provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date,
the principal amount payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal amount of a Security
denominated in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided
as contemplated by Section 301, of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount determined as provided in such
Clause), and (D) Securities owned by the Company 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, waiver or other action, only
Securities which a responsible officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.




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



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



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



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security, and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.



     “Record Date” means any Regular Record Date or Special Record Date.



6









 





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



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



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



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



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



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



     “Significant Subsidiary” with respect to any Person means any Subsidiary of such Person that
constitutes a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X
promulgated under the Securities Act, as such regulation is in effect on the date of this
Indenture.



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



     “Stated Maturity,” when used with respect to any Security or any installment of principal
thereof or interest, if any, 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, if any, is
due and payable.



     “Subsidiary” with respect to any Person means (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of capital stock or
other equity interests entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or
a combination thereof), (ii) any partnership, limited liability company or similar pass-through
entity the sole general partner or the managing general partner or managing member of which is such
Person or a Subsidiary of such Person and (iii) any partnership, limited liability company or
similar pass-through entity the only general partners, managing members or Persons, however
designated in corresponding roles, of which are such Person or one or more Subsidiaries of such
Person (or any combination thereof).



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this Indenture was executed, except as provided in Section 905; provided,
however, that in the
event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.



7









 





     “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, 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 specified in Section 1304.



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



     Section 102. Compliance Certificates and Opinions. 



     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee (1) 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 (2) an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been complied with.



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




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




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




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




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



     Section 103. Form of Documents Delivered to Trustee. 



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



8









 





     Any certificate or opinion of an officer of the Company or any Guarantor 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 or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company or any Guarantor, as applicable, stating that the information with
respect to such factual matters is in the possession of the Company or any Guarantor, as the case
may be, 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. Any such
certificate or opinion of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of, or representations by, an accountant (who may be an employee of the
Company) or firm of accountants, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to such matters are
erroneous. Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.



     Section 104. Acts of Holders; Record Dates. 



     Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
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. The Trustee shall promptly
deliver to the Company copies of all such instrument or instruments and records delivered to the
Trustee. 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 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.



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



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



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



     The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as a
record date for the purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization, direction, vote, notice,
consent, waiver or other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series; provided that the Company may not set



9









 







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



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



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



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



10









 





     Section 105. Notices, Etc., to Trustee and Company. 



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




     (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (or by facsimile transmission
((646)-452-2000); provided that oral confirmation of receipt shall have been
received) 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 the Company’s principal
office specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company, Attention: Chief Financial
Officer, with a copy to the Secretary; provided that such notice shall not
be deemed to be given until received by the Company.



     Section 106. Notice to Holders; Waiver. 



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



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



     Section 107. Conflict with Trust Indenture Act. 



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



     Section 108. Effect of Headings and Table of Contents. 



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



11









 





     Section 109. Successors and Assigns. 



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



     Section 110. 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 111. 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 112. Governing Law; Waiver of Jury Trial



     THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. EACH OF THE
COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.



     Section 113. Legal Holidays. 



     In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or the last date on which a Holder has the right to convert a Security at a particular
conversion price shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) or, if applicable to a particular series of Securities,
conversion need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, at the Stated Maturity or on such last day for
conversion, as the case may be.



     Section 114. Indenture and Securities Solely Corporate Obligations. 



     None of the Company’s or any Guarantor’s past, present or future directors, officers,
employees or shareholders, as such, shall have any liability for any of the Company’s or any
Guarantor’s obligations under this Indenture or the Securities or for any claim based on, or in
respect or by reason of, such obligations or their creation. By accepting a Security, each holder
waives and releases all such liability. This waiver and release is part of the consideration for
the issuance of the Securities.



12









 





     Section 115. Indenture May be Executed in Counterparts. 



     This Indenture may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of
the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes.



     Section 116. Acceptance of Trust. 



     Union Bank, N.A., the Trustee named herein, hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions set forth herein.



     Section 117. Force Majeure



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



     Section 118. U.S.A. Patriot Act



     The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act,
the Trustee, like all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Indenture agree that they will provide the Trustee with such information as it may
request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.



ARTICLE TWO




SECURITY FORMS




     Section 201. Forms Generally. 



     The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board



13









 







Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities. Any such Board Resolution or record of such action shall have
attached thereto a true and correct copy of the form of Security referred to therein approved by or
pursuant to such Board Resolution.



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



     Section 202. Form of Face of Security. 


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




EXPRESS SCRIPTS, INC.




			
	 	 	 
	$                    
	 	No.                     
	CUSIP No.                     	 	 






     Express Scripts, Inc., a corporation duly organized and existing under the laws of Delaware
(herein called the “Company,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to                     , or
registered assigns, the principal sum of                      Dollars on                      [if the
Security is to bear interest prior to Maturity, insert —, and to pay interest thereon from
                     or from the most recent Interest Payment Date to which interest has been paid or duly
provided for to, but excluding the next Interest Payment Date, [semi-annually on                      and
                    ] in each year, commencing                     , at the rate of ___% per annum, until the
principal hereof is paid or made available for payment [if applicable, insert — ; provided
that any principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of [___%] per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the                      or                      (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid
to
the Person in whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not
fewer than 10 days prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on which the Securities of
this series may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Interest on the Security shall be computed on the basis of a 360
day year of twelve 30 day months.]



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



14









 







bear
interest at the rate of ___% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so demanded is paid or
made available for payment. Interest on any overdue interest shall be payable on demand.]



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



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



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



     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	 	EXPRESS SCRIPTS, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 	 	Attest:
	 
	 	 	 	 
	 	 	 





15









 






     Section 203. Form of Reverse of Security. 



     This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
                    , 2009 (herein called the “Indenture,” which term shall have the meaning assigned to it
in such instrument), among the Company, any Guarantors party thereto and Union Bank, N.A., as
Trustee (herein called the “Trustee,” which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture and all indentures supplemental thereto
applicable to this Security for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if applicable, insert
—, limited in aggregate principal amount to $                    ].



     [If applicable, insert — The Securities of this series are subject to redemption upon not
fewer than 30 days’ nor more than 60 days’ notice by mail, [if applicable, insert — (1) on
                     in any year commencing with the year                      and ending with the year                     
through operation of the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [if applicable, insert — on or after                     , 20___], in
whole or in part, at the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert — on or before                     ,
                    %, and if redeemed] during the 12-month period beginning                      of the years indicated,
and thereafter at a Redemption Price equal to                     % of the principal amount, together in the case
of any such redemption [if applicable, insert — (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]



	 	 	 	 	 	 	 
	Year
	 	Redemption Price
	 	Year
	 	Redemption Price
	 
	 	 
	 	 
	 	 





     [If applicable, insert — The Securities of this series are subject to redemption upon not
fewer than 30 days’ nor more than 60 days’ notice by mail, (1) on                      in any year commencing
with the year                      and ending with the year                      through operation of the sinking
fund for this series at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below, and (2) at any
time [if applicable, insert — on or after                     ], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning                      of the years indicated,



	 	 	 	 	 
	Year
	 	Redemption Price For

Redemption Through Operation

of the Sinking Fund
	 	Redemption Price For

Redemption Otherwise Than

Through Operation of the Sinking

Fund
		 	 
	 	 




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




16









 








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



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



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



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



     [If the Security is convertible into Common Stock of the Company, insert — Subject to the
provisions of the Indenture, the Holder of this Security is entitled, at its option, at any time on
or prior to Maturity (except that, in case this Security or any portion hereof shall be called for
redemption, such right shall terminate with respect to this Security or portion hereof, as the case
may be, so called for redemption at the close of business on the first Business Day next preceding
the date fixed for redemption as provided in the Indenture unless the Company defaults in making
the payment due upon redemption), to convert the principal amount of this Security (or any portion
hereof which is $1,000 or an integral multiple thereof), into fully paid and non-assessable shares
(calculated as to each conversion to the nearest 1/100th of a share) of the Common Stock of the
Company, as said shares shall be constituted at the date of conversion, at the conversion price of
$                     principal amount of Securities for each share of Common Stock, or at the adjusted
conversion price in effect at the date of conversion determined as provided in the Indenture, upon
surrender of this Security, together with the conversion notice hereon duly executed, to the
Company at the designated office or agency of the Company in                     , accompanied (if so
required by the Company) by instruments of transfer, in form satisfactory to the Company and to the
Trustee, duly executed by the Holder or by its duly authorized attorney in writing. Such surrender
shall, if made during any period beginning at the close of business on a Regular Record Date and
ending at the opening of business on the Interest Payment Date next following such Regular Record
Date (unless this Security or the portion being converted shall have been called for redemption on
a Redemption Date during the period beginning at the close of business on a Regular Record Date and
ending at the opening of business on the first Business Day after the next succeeding Interest
Payment Date, or if such Interest Payment Date is not a Business Day, the second such Business
Day), also be accompanied by payment in funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment and, in the case of a conversion after
the Regular Record Date next preceding any Interest Payment Date and on or before such Interest
Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of record
at such Regular Record Date to receive an installment of interest (with certain exceptions provided
in the Indenture), no adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of Common Stock issued on conversion. The Company is not required to issue
fractional shares upon any such conversion, but shall make adjustment therefor in cash on the basis
of the current market value of such fractional interest as provided in the Indenture. The
conversion price is subject to adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations or mergers to which the Company is a party or the
sale of substantially all of the assets of the Company, the Indenture shall be amended,



17









 







without the consent of any Holders of Securities, so that this Security, if then outstanding,
will be convertible thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property receivable upon the
consolidation, merger or sale by a holder of the number of shares of Common Stock into which this
Security might have been converted immediately prior to such consolidation, merger or sale
(assuming such holder of Common Stock failed to exercise any rights of election and received per
share the kind and amount received per share by a plurality of non-electing shares). In the event
of conversion of this Security in part only, a new Security or Securities for the unconverted
portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.]



     [If the Security is convertible into other securities of the Company, provides for adjustments
to the conversion rate or provides for other means to settle conversion, specify the conversion
features.]



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



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



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



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



18









 





     No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.



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



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



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



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



     This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with and governed by the laws of said State,
without regard to conflict of laws principles thereof.



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



     Section 204. Form of Legend for Global Securities. 



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



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



19









 





     Section 205. 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.


Dated:




	 	 	 	 	 
	 	UNION BANK, N.A.,

As Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



20









 






	 	 	 	 	 




     Section 206. Form of Conversion Notice. 



     Conversion notices shall be in substantially the following form, with such changes as are
appropriate for the applicable series of Securities:



     To Express Scripts, Inc.:



     The undersigned owner of this Security hereby irrevocably exercises the option to convert this
Security, or portion hereof (which is $1,000 or an integral multiple thereof) below designated, in
accordance with the terms of the Indenture referred to in this Security, and directs that any
shares issuable and deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has been indicated
below. If this Notice is being delivered on a date after the close of business on a Regular Record
Date and prior to the opening of business on the related Interest Payment Date (unless this
Security or the portion thereof being converted has been called for redemption on a Redemption Date
during the period beginning at the close of business on a Regular Record Date and ending at the
opening of business on the first Business Day after the next succeeding Interest Payment Date, or
if such Interest Payment Date is not a Business Day, the second such Business Day), this Notice is
accompanied by payment, in funds acceptable to the Company, of an amount equal to the interest
payable on such Interest Payment Date of the principal of this Security to be converted. If shares
are to be issued in the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect to this option exercise, including such issuance. Any amount
required to be paid by the undersigned on account of interest accompanies this Security.



Principal Amount to be Converted (in an integral multiple of $1,000, if less than all)




U.S. $                    

Dated:                                         




	 	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 

	 	Signature(s) must be guaranteed by an eligible
guarantor institution (banks, stock brokers,
savings and loan associations and credit
unions with membership in an approved
signature guarantee medallion program)
pursuant to Securities and Exchange Commission
Rule 17 Ad-15, if shares of Common Stock are
to be delivered, or Securities to be issued,
other than to and in the name of the
registered owner.
	 
	 	 
	 

	 	 
	 

	 	Signature Guaranty






21









 





Fill in for registration of shares of Common Stock and Security if to be issued otherwise than to
the registered Holder.




	 	 	 
	 

	 	 
	(Name)

	 	Social Security or Other Taxpayer
	 

	 	Identification Number
	 
	 	 
	 

	 	 
	(Address)
	 	 
	 
	 	 
	 

Please print Name and Address (including zip code number)

	 	 





[The
above conversion notice is to be modified, as appropriate, for conversion into other
securities or property of the Company.]




22









 








ARTICLE THREE




THE SECURITIES




     Section 301. Amount Unlimited; Issuable in Series. 



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



     The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series, any or all of the following:




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




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




     (3) the price or prices at which the Securities of such series will be offered by the
Company (such price or prices to be expressed as a percentage of the principal amount of the
Securities of such series);




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




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




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




     (7) the rate or rates of interest, if any, payable on overdue installments of principal
of, or any premium or interest on the Securities of such series, and the basis upon which
interest shall be calculated if other than that of a 360-day year comprised of twelve 30-day
months;



23









 






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




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




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




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




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




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




     (14) if the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such election is made shall be payable,
the periods within which and the terms and conditions upon which such election is to be made
and the amount so payable (or the manner in which such amount shall be determined);




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




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




     (17) if applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if
other than by a Board



24









 







Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced and any changes or additions to the provisions provided in Article
Thirteen of this Indenture and related definitions and provisions dealing with defeasance,
including the addition of additional covenants that may be subject to the Company’s Covenant
Defeasance option;




     (18) if applicable, the terms of any right to convert Securities of the series into, or
exchange securities for, shares of Common Stock of the Company or other securities or
property or cash in lieu of such Common Stock or other securities or property, or any
combination thereof, and any corresponding changes to the provisions of this Indenture as
then in effect;




     (19) if applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set forth in Section 204
and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 305 in which any such Global Security may be exchanged in whole or in
part for Securities registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the Depositary for such Global
Security or a nominee thereof;




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




     (21) any Authenticating Agents, Paying Agents or Security Registrars;




     (22) whether Securities of the series are entitled to any benefits of any Guarantee of
any Guarantors pursuant to this Indenture;




     (23) the terms, if any, of the transfer, mortgage, pledge or assignment as security for
the Securities of the series of any properties, assets, moneys, proceeds, securities or
other collateral, including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this Indenture as then in effect;




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




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



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.



25









 





     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.



     Section 302. Denominations. 



     The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in minimum denominations of $2,000 and any integral multiple of
$1,000 in excess thereof.



     Section 303. Execution, Authentication, Delivery and Dating. 



     The Securities shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its principal financial officer, its Chief Executive Officer, its President or one of
its Vice Presidents, its Treasurer or its Assistant Treasurer, attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the Securities may be manual
or facsimile.



     The Guarantee endorsed on any Securities shall be executed on behalf of the Guarantor by its
Chairman of the Board of Directors, its principal financial officer, its Chief Executive Officer,
its President or one of its Vice Presidents, its Treasurer or its Assistant Treasurer, attested by
its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the
Guarantee may be manual or facsimile.



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



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company and, if applicable, having
endorsed thereon the Guarantees executed as provided in Section 1502 to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order (which may provide that Securities
that are the subject thereof will be authenticated and delivered by the Trustee from time to time
upon the telephonic or written order of Persons designated in said Company Order and that such
Persons are authorized to determine such terms and conditions of said Securities as are specified
in the Company Order) shall authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall receive,
and (subject to Section 601) shall be fully protected in conclusively relying upon, a copy of such
Board Resolution, the Officers’ Certificate setting forth the terms of the series and an Opinion of
Counsel, with such Opinion of Counsel stating,




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



26









 






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




     (3) that this Indenture and such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding obligations of the
Company, and, if applicable, the Guarantees endorsed thereon will constitute valid and
legally binding obligations of the Guarantors, in each case enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and




     (4) that all laws and requirements in respect of the execution and delivery by the
Company of such Securities have been complied with.



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



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



     Each Security shall be dated the date of its authentication.



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



     Section 304. Temporary Securities. 



     Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and 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.



27









 





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



     Section 305. Registration; Registration of Transfer and Exchange. 



     The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office or 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 initially is hereby
appointed “Security Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided. The Company may change any Security Registrar without prior notice
to any Holder. The Company or any of its Subsidiaries may act as Security Registrar.



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



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



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



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



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer.



28









 





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



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




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




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




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




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



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



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



     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and



29









 







of like tenor and principal amount and bearing a number not contemporaneously outstanding, and
having endorsed thereon a Guarantee executed by the Guarantors, if applicable.



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



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



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



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



     Section 307. Payment of Interest; Interest Rights Preserved. 



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



     In the case of Securities represented by a Global Security registered in the name of or held
by a Depository or its nominee, unless otherwise specified by Section 301, payment of principal,
premium, if any, and interest, if any, will be made to the Depository or its nominee, as the case
may be, as the registered owner or Holder of such Global Security. None of the Company, the
Guarantors, the Trustee and the Paying Agent, any Authenticating Agent or the Security Registrant
for such Securities will have any responsibility or liability for any aspect of the records
relating to or payments made on account of a beneficial ownership interest in a Global Security or
maintaining, supervising or reviewing any records relating to such beneficial ownership interests.



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




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest



30









 







proposed to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not fewer than 10 days prior to the date of the proposed
payment and not fewer than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be given to each
Holder of Securities of such series in the manner set forth in Section 106, not fewer than
10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).




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



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



     Subject to the provisions of Section 1402, in the case of any Security (or any part thereof)
which is converted after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Security the principal of (or premium, if any, on) which shall become
due and payable, whether at Stated Maturity or by declaration of acceleration or otherwise prior to
such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall
be payable on such Interest Payment Date notwithstanding such conversion and such interest (whether
or not punctually paid or duly provided for) shall be paid to the Person in whose name that
Security (or any one or more Predecessor Securities) is registered at the close of business on such
Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence
or in Section 1402, in the case of any Security (or any part thereof) which is converted, interest
whose Stated Maturity is after the date of conversion of such Security (or such part thereof) shall
not be payable.



     Section 308. Persons Deemed Owners. 



     Prior to due presentment of a Security for registration of transfer, the Company, the
Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be overdue, and none
of the Company, the Guarantors, the Trustee or any agent of the Company, the Guarantors or the
Trustee shall be affected by notice to the contrary.



     In the case of a Global Security, so long as the Depository for such Global Security, or its
nominee, is the registered owner of such Global Security, such Depository or such nominee, as the
case may be, will be considered



31









 







the sole owner or Holder of the Securities represented by such Global Security for all
purposes under this Indenture. Except as provided in Section 305, owners of beneficial interests in
a Global Security will not be entitled to have Securities that are represented by such Global
Security registered in their names, will not receive or be entitled to receive physical delivery of
such Securities in definitive form and will not be considered the owners or Holders thereof under
this Indenture.



     Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall (a)
prevent the Company, the Guarantors, the Trustee, or any agent of the Company, the Guarantors or
the Trustee, from giving effect to any written certification, proxy or other authorization
furnished by a Depository or (b) impair, as between a Depository and holders of beneficial interest
in any Global Security, the operation of customary practices governing the exercise of the rights
of the Depository as Holder of such Global Security.



     None of the Company, the Guarantors, the Trustee, any Paying Agent and Authenticating Agent or
the Security Registrar will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest in a Global Security or
for maintaining, supervising or reviewing any records relating to such beneficial ownership
interest.



     Section 309. 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 shall be disposed of by the Trustee in
accordance with its customary procedures.



     Section 310. Computation of Interest. 



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



     Section 311. CUSIP Numbers. 



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



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ARTICLE FOUR




SATISFACTION AND DISCHARGE




     Section 401. Satisfaction and Discharge of Indenture. 



     This Indenture shall upon Company Request cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for or any other surviving rights expressly provided for in a
supplemental indenture for a series of Securities), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:




     (1) either:




     (A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or




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




     (i) have become due and payable; or




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




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


and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose lawful money of the United States or U.S.
Government Obligations which through the payment of interest and principal in respect thereof in
accordance with their terms will provide lawful money not later than the due dates of principal
(and any premium) or interest, or any combination thereof, in each case sufficient, in the opinion
of a nationally recognized firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may be;





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



33









 






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



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and, if money or U.S. Government Obligations shall have been deposited with
the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.



     Section 402. Application of Trust Money. 



     Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 401 or 1302 and all money received by
the Trustee in respect of U.S. Government Obligations deposited with the Trustee, shall be held in
trust and applied by the Trustee, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such money has been deposited with the
Trustee.



     Section 403. Repayment to the Company. 



     Upon termination of the trust pursuant to Section 401 hereof, the Trustee and Paying Agent
shall promptly pay to the Company any excess money or U.S. Government Obligations.



ARTICLE FIVE




REMEDIES




     Section 501. Events of Default. 



     “Event of Default,” wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it 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),
except to the extent such event is specifically deleted or modified as contemplated by Section 301
for the Securities of that series:




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




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



34









 






     (3) default in the deposit of any sinking fund payment, when and as due by the terms of
a Security of that series and continuance of such default for a period of 30 days; or




     (4) with respect to a series of Securities, the Company fails to comply with any other
term, covenant or agreement with respect thereto (other than a term, covenant or agreement 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 that series or which has been included in this Indenture but
not made applicable to the Securities of such series), and continuance of such default or
breach for a period of 90 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities 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) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any of its Guarantors 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 or any of its Guarantors
bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any of its
Guarantors under any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or any
of its Guarantors or of any substantial part of its respective property, or ordering the
winding up or liquidation of its respective 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
90 consecutive days; or




     (6) the commencement by the Company or any of its Guarantors 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 bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in respect of
the Company or any of its Guarantors 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 other similar official of the Company or any of its Guarantors or
of any substantial part of its respective property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the Company or any
of its Guarantors in furtherance of any such action; or




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



     Section 502. Acceleration of Maturity; Rescission and Annulment. 



     If an Event of Default, other than an Event of Default specified in Sections 501(5) or 501(6)
solely with respect to the Company (but including an Event of Default referred to in those Sections
solely with respect to any Significant Subsidiary of the Company), with respect to Securities of
any series at the time Outstanding occurs and is continuing, then either the Trustee, by notice to
the Company, or the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series, by notice to the Trustee and the Company, may declare the principal amount of, and
accrued and unpaid interest on, all the Securities of that series (or, if any Securities of that
series are Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be



35









 







specified by the terms thereof) to be due and payable immediately. In the case of an Event of
Default specified in Section 501(5) or 501(6) solely with respect to the Company (and not solely
with respect to any Significant Subsidiary of the Company) and with respect to Securities of any
series at the time Outstanding occurs, the principal amount of (or, if any Securities of that
series are Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof), and accrued and unpaid interest on, all the
Securities of that series shall automatically, and without any action by the Trustee or any Holder,
become immediately due and payable.



     Notwithstanding the foregoing, for the first 180 days following any violation of any
obligations the Company may be deemed to have pursuant to Section 314(a)(1) of the Trust Indenture
Act or the Company’s other reporting and information delivery obligations with respect to filings
with the Commission as provided in Section 704, at the Company’s option, the sole remedy of the
Holders of the Securities shall be the accrual of additional interest on the Securities while such
Default exists at a rate of 0.25% per annum, payable semi-annually. In no event shall such
additional interest accrue at a rate per annum in excess of 0.25% per annum, regardless of the
number of events or circumstances giving rise to the requirement to pay such additional interest.



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




     (1) the rescission would not conflict with any order or decree;




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




     (3) 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 any
interest thereon at the rate or rates prescribed therefor in such Securities, to the
extent that payment is lawful;




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




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



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



36









 





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



     The Company covenants that if:




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




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



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



     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any Guarantor 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, any Guarantor or any other obligor upon such Securities, wherever
situated.



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



     Section 504. Trustee May File Proofs of Claim. 



     In any case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other any judicial proceeding relative to
the Company (or any Guarantor or other obligor upon the Securities), its property or its creditors,
the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 607.



     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the



37









 







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.



     Section 505. 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 506. Application of Money Collected. 



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



     FIRST: To the payment of all amounts due the Trustee under Section 607;



     SECOND: In case the principal of the Securities of such series in respect of which moneys have
been collected shall not have become and be then due and payable, to the payment of interest, if
any, on the Securities of such series in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has been collected by such
Trustee and to the extent permitted by law) upon the overdue installments of interest at the rate
prescribed therefor in such Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;



     THIRD: In case the principal or any premium of the Securities of such series in respect of
which moneys have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of such series for
principal, any premium and interest, if any, with interest upon the overdue principal, and (to the
extent that such interest has been collected by such Trustee and to the extent permitted by law)
upon overdue installments of interest at the rate prescribed therefor in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such principal, any premium and
interest, without preference or priority of principal over interest, or of interest over principal,
or of any installment of interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the aggregate of such principal and
accrued and unpaid interest; and



     FOURTH: The balance, if any, to the Company or any other Person or Persons lawfully entitled
thereto.



38









 





     Section 507. Limitation on Suits. 



     No Holder of any Security of any series shall have any right to institute any proceeding under
this Indenture, or for the appointment of a receiver or trustee, or for any other remedy under this
Indenture, unless each of the following shall have occurred:




     (1) such Holder has previously given the Trustee written notice 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 make a written request to the Trustee to pursue the remedy and offer, and if
requested provide, to the Trustee indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense incurred in connection with such pursuit; and




     (3) the Trustee fails to comply with such request within 60 days after the Trustee
receives the notice, request and offer of indemnity and does not receive, during those 60
days, from Holders of a majority in aggregate principal amount of Outstanding Securities of
such series, a direction inconsistent with such request.



     However, the above limitations do not apply to a suit by a Holder to enforce (a) the payment
of amounts due on that Holder’s Securities after the applicable due date or (b) the right to
convert that Holder’s Securities in accordance with this Indenture.



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



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



     Section 509. Restoration of Rights and Remedies. 



     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, any Guarantor, 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.



39









 





     Section 510. Rights and Remedies Cumulative. 



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



     Section 511. Delay or Omission Not Waiver. 



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



     Section 512. Control by Holders. 



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




     (1) such direction shall not be in conflict with any rule of law or with this Indenture
and the Trustee shall not have determined that the action so directed would be unjustly
prejudicial to Holders of Securities of that series, or any other series, not taking part in
such direction; and




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



     Section 513. Waiver of Past Defaults. 



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




     (1) in the payment of the principal of or any premium or interest on any Security of
such series or the payment of any redemption price, purchase price or repurchase price with
respect to any Security of such series;




     (2) arising from the Company’s failure to convert any Security in accordance with this
Indenture; or



40









 






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



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



     Section 514. Undertaking for Costs. 



     All parties to this Indenture agree, and each Holder of any Security by his or her 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 attorney’s fees and expenses, against any party
litigant in such suit, in the manner and to the extent provided in the Trust Indenture Act;
provided that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for the enforcement of the right to convert any Security
in accordance with Article Fourteen or in any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders for the enforcement of the payment of the principal
of, or any premium or interest on, any Security on or after the due date for such payment.



     Section 515. Waiver of 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
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 SIX




THE TRUSTEE




     Section 601. Certain Duties and Responsibilities. 



     The duties and responsibilities of the Trustee shall be as expressly set forth in this
Indenture and as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section. 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, subject to Section 603.



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     Section 602. Notice of Defaults. 



     If a Default or Event of Default has occurred and the Trustee has received notice of the
Default or Event of Default in accordance with this Indenture, the Trustee must mail to each Holder
a notice of the Default or Event of Default within 90 days after the occurrence of the Event of
Default. However, the Trustee need not mail the notice if the Default or Event of Default (a) has
been cured or waived; or (b) is not in the payment of any amounts due with respect to any Security
or the failure to convert any Security in accordance with the Indenture and the Trustee in good
faith determines that withholding the notice is in the best interests of Holders. In addition, the
Trustee shall give the Holders of Securities of such series notice of such Default or Event of
Default actually known to it as and to the extent provided by the Trust Indenture Act.



     Section 603. Certain Rights of Trustee. 



     Subject to the provisions of Section 601:




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




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




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




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




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




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



42









 






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




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




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




     (10) the permissive rights of the Trustee to do the things enumerated in this Indenture
shall not be construed as a duty unless so specified herein. The Trustee shall not be liable
in connection with the performance of its duties hereunder, except for its own negligence or
willful misconduct;




     (11) whenever in the administration of the trusts imposed upon it by this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter may be deemed to be conclusively
proved and established by an Officers’ Certificate, and such Officers’ Certificate shall be
full warrant to the Trustee for any action taken or suffered in good faith under the
provisions of the Indenture in reliance upon such Officers’ Certificate, but in its
discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may
request such additional evidence as it may deem reasonable;




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




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




     (14) the Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder; and




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



     Section 604. 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 neither the Trustee nor any
Authenticating Agent assumes any



43









 







responsibility for their correctness. The Trustee makes no representations as to the validity,
sufficiency or priority of this Indenture or of the Securities, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and
perform its obligations hereunder, and that the statements made by it or to be made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and accurate as of the date
thereof. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.



     Section 605. May Hold Securities and Act as Trustee Under Other Indentures. 



     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, 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.



     Subject to the limitations imposed by the Trust Indenture Act, nothing in this Indenture shall
prohibit the Trustee from becoming and acting as trustee under other indentures under which other
securities, or certificates of interest of participation in other securities, of the Company are
outstanding in the same manner as if it were not Trustee hereunder.



     Section 606. Money Held in Trust. 



     Subject to the provisions of the last paragraphs of Sections 1003 and 1305, all money received
by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.



     Section 607. Compensation and Reimbursement. 



     The Company agrees:




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




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




     (3) to indemnify the Trustee for, and to hold it harmless against, any and all loss,
liability, damage, claim (including taxes (other than taxes based on the income of the
Trustee)) or expense incurred without negligence or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against



44









 







any claim (whether asserted by the Company, a Guarantor, a Holder or any other Person)
or liability in connection with the exercise or performance of any of its powers or duties
hereunder.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(5) or Section 501(6), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law.



     The Trustee shall have a lien prior to the Securities as to all property and funds held by it
hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except
with respect to funds held in trust for the benefit of the Holders of particular Securities.



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



     Section 608. Conflicting Interests.



     If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest within 90 days or resign, to the
extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and
this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with respect to Securities
of more than one series.



     Section 609. Corporate Trustee Required; Eligibility. 



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



     Section 610. Resignation and Removal; Appointment of Successor. 



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



     The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning



45









 







Trustee may petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such series.



     The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being removed may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     If at any time:




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




     (2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder, or




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


then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.




     If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, the retiring Trustee may petition, or any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.



     The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all



46









 







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



     Section 611. Acceptance of Appointment by Successor. 



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



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



     Upon the reasonable written 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 the first or second preceding paragraph,
as the case may be.



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



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



     Any 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



47









 







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 613. Preferential Collection of Claims Against the Company. 



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



     Section 614. Appointment of Authenticating Agent. 



     The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 305, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having (or if the Authenticating Agent is a member of a bank
holding company system, its bank holding company has) a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.



     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all 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.



     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 to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its



48









 







predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.



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



     If an appointment with respect to one or more series is made pursuant to this Section 614, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:



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



49









 





	 	 	 	 	 
	 	 	Dated:
	 
	 	 	 	 
	 	 	UNION BANK, N.A., as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	As Authenticating Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory






ARTICLE SEVEN




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




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



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




     (1) semi-annually, not later than 15 days after each Regular Record Date, a list, in
such form as the Trustee may reasonably require, of the names and addresses of the Holders
of Securities of each series as of such Regular Record Date, as the case may be; and




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



provided that no such list need be furnished by the Company to the Trustee so long
as the Trustee is acting as Security Registrar.



     Section 702. Preservation of Information; Communications to Holders. 



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



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



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     Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to the names and addresses of Holders
made pursuant to the Trust Indenture Act.



     Section 703. Reports by Trustee. 



     The Trustee shall transmit to Holders of Securities, as their names and addresses appear in
the Securities Register, such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.



     The Trustee shall comply with Section 313 of the Trust Indenture Act and, if required by
Section 313 (a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15,
following the date of the initial issuance of Securities under this Indenture deliver to Holders a
brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).



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



     Section 704. Reports by Company. 



     The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture
Act; provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the Commission;
provided further that any such information, documents or reports filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system
shall be deemed to be filed with the Trustee, provided further that the Trustee shall have no duty
to determine whether such filing has occurred.



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



ARTICLE EIGHT




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




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



     The Company shall not consolidate with or merge with or into another Person (in a transaction
in which the Company is not the surviving Person), or sell, transfer, lease, convey or otherwise
dispose of all or substantially all



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of the property or assets of the Company to, any other Person, whether in a single transaction
or series of related transactions, unless:




     (1) in case the Company shall consolidate with or merge into another Person (in a
transaction in which the Company is not the surviving Person) or sell, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties and assets to any
Person, the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by sale, transfer, conveyance or other disposition, or which leases,
all or substantially all of the properties and assets of the Company shall be a corporation,
limited liability company, partnership or trust, shall be organized and validly existing
under the laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the Company to be performed
or observed and the conversion rights shall be provided for in accordance with Article
Fourteen (or if as a result of such transaction, the Securities become convertible into
common stock or other securities issued by a third party, such third party fully and
unconditionally guarantees all of our obligations or such successor under the Securities and
this Indenture), if applicable, or as otherwise specified pursuant to Section 301, by
supplemental indenture satisfactory in form to the Trustee, executed and delivered to the
Trustee, by the Person (if other than the Company) formed by such consolidation or into
which the Company shall have been merged or by the Person which shall have acquired the
Company’s assets;




     (2) immediately after giving effect to 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
exist; 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 802. Successor Substituted. 



     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any sale, transfer, lease, conveyance or other disposition of all or substantially all of the
properties and assets of the Company in accordance with Section 801, the successor Person formed by
such consolidation or into which the Company is merged or to which such sale, transfer, lease,
conveyance or other disposition 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 automatically relieved of all obligations and covenants
under this Indenture and the Securities.



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ARTICLE NINE




SUPPLEMENTAL INDENTURES




     Section 901. Supplemental Indentures Without Consent of Holders. 



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




     (1) to evidence the succession of another Person to the Company, or successive
successions, and the assumption by any such successor of the covenants of the Company herein
and in the Securities upon the Company’s consolidation or merger, or the sale, transfer,
lease, conveyance or other disposition of all or substantially all of the Company’s property
or assets in accordance with the Indenture;




     (2) to add to the covenants of the Company or the Guarantors for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for the benefit
of fewer 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;




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




     (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;




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




     (6) to secure the Securities;




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




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



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     (9) to make provision with respect to the conversion rights of Holders pursuant to the
requirements of Article Fourteen, including providing for the conversion of the Securities
into any security (other than the Common Stock of the Company) or property of the Company,
making adjustments in accordance with the Indenture to convert the Securities upon
reclassifications, changes in the Company’s Common Stock and certain consolidations, mergers
and binding share exchanges, and upon the sale, transfer, lease, conveyance or other
disposition of all or substantially all of the Company’s property or assets, and giving
effect to any election the Company makes related to the conversion rights of the Holders;




     (10) to comply with the rules and regulations of any securities exchange or automated
quotation system on which the Securities may be listed or traded;




     (11) to add to, change or eliminate any of the provisions of this Indenture as shall be
necessary or desirable in accordance with any amendments to the Trust Indenture Act;
provided that such action does not materially adversely affect the rights or
interests of any Holder of Securities;




     (12) to supplement any of the provisions of the Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Articles Four and Thirteen, provided that any such action shall
not adversely affect the interests of the Holders of Securities of such series or any other
series of Securities in any material respect;




     (13) to reflect the release of any Guarantor in accordance with Article Fifteen; or




     (14) to add Guarantors with respect to any of the Securities.



     In addition, the Company, the Guarantors and the Trustee may enter into a supplemental
indenture without the consent of Holders of the Securities in order to cure any ambiguity, defect,
omission or inconsistency in this Indenture or the Securities in a manner that does not,
individually or in the aggregate with all other changes, adversely affect the rights of any Holder
in any material respect; provided that any modification of this Indenture and the
Securities to conform the provisions of the Indenture to any description of the applicable
Securities in the prospectus therefor shall not be deemed to adversely affect the rights of any
Holder in any material respect. The Company and the Trustee may also enter into a supplemental
indenture without the consent of Holders of the Securities in order to conform the Indenture to any
description of the Securities contained in the prospectus therefor.



     Section 902. Supplemental Indentures With Consent of Holders. 



     With the consent of the Holders of a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustee, the Company and the Guarantors, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected thereby,




     (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 any Security, or reduce the amount of the principal of,
or any premium, or any interest on, an Original



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Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, manner or the coin or currency in which, any Security or any premium
or interest thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on, or with respect to, or the conversion of any Security in a manner
adverse to the Holders of Securities of such series, or release any Guarantee by a Guarantor
other than as provided in this Indenture (it being understood that any release effected by
Section 802 shall not constitute any of the foregoing);




     (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;




     (3) modify any of the provisions of this Section or Section 513, 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 611 and 901(8);




     (4) if applicable, make any change that adversely affects the right to convert any
security as provided in Article Fourteen or pursuant to Section 301 (except as permitted by
Section 901(9)) or decrease the conversion rate or increase the conversion price of any such
security; or




     (5) change the ranking of any series of Securities.



     In addition, subject to Sections 508 and 513, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series may, by notice to the Trustee, waive compliance
by the Company or the Guarantors with any provision of this Indenture or such Securities, in a
particular instance or generally, without notice to any other Holder; provided that
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 or
the Guarantors and the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.



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



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



     Section 903. Execution of Supplemental Indentures. 



     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall receive, and (subject to



55









 







Sections 601 and 603) shall be fully protected in conclusively relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.



     Section 904. Effect of Supplemental Indentures. 



     Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby (unless such supplemental indenture does not apply
to such Securities).



     Section 905. Conformity with Trust Indenture Act. 



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



     Section 906. Reference in Securities to Supplemental Indentures. 



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



ARTICLE TEN




COVENANTS




     Section 1001. Payment of Principal, Premium and Interest. 



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



     Section 1002. Maintenance of Office or Agency. 



     The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange, where
Securities of that series may be surrendered for conversion 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



56









 







office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.



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



     Section 1003. Money for Securities Payments to Be Held in Trust. 



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



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



     The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (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 held in trust by such Paying Agent for payment in
respect of the Securities of that series.



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



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on any Security of any
series and remaining unclaimed for a period ending on the earlier of the date that is ten Business
Days prior to the date such money would escheat to the State or two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to the Company for



57









 







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 1004. Statement by Officers as to Default. 



     The Company will promptly notify the Trustee in writing upon its becoming aware of the
occurrence of any Default or Event of Default. In addition, Company shall furnish to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after the date of the
Indenture, an Officers’ Certificate stating whether the officers certifying therein have actual
knowledge of any Default or Event of Default by the Company in performing any of its obligations
under the Indenture or the Securities and describing any such Default or Event of Default.



     Section 1005. Existence. 



     Subject to Article Eight, the Company will do or cause to be done all things reasonably
necessary to preserve and keep in full force and effect its corporate existence.



     Section 1006. Payment of Taxes and Other Claims. 



     The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, all taxes, assessments and governmental charges levied or imposed upon the
Company or upon the income, profits or property of the Company or any Subsidiary, provided,
however, that the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment or charge (i) whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or (ii) if the failure to pay or discharge would
not have a material adverse effect on the assets, business, operations, properties or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a whole.



     Section 1007. Calculation of Original Issue Discount. 



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



ARTICLE ELEVEN




REDEMPTION OF SECURITIES




     Section 1101. Applicability of Article. 



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



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     Section 1102. Election to Redeem; Notice to Trustee. 



     The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least 40 days (or 45
days if fewer than all the Securities of any series are to be redeemed) 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, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers’ Certificate evidencing compliance with such restriction.



     Section 1103. Selection by Trustee of Securities to Be Redeemed. 



     If fewer than all the Securities of any series are to be redeemed (unless all the Securities
of such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by lot, or in the Trustee’s discretion, on a pro-rata basis or by
such other method as the Trustee may deem fair and appropriate, provided that the
unredeemed portion of the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such Security. If fewer than
all the Securities of such series and of a specified tenor are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be redeemed shall be
selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for redemption in accordance
with the preceding sentence.



     If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be), at the option of the Company, to be the portion
selected for redemption. Securities which have been converted during a selection of Securities to
be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection. The
Trustee shall promptly notify the Company in writing of the Securities selected for redemption as
aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed.



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



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



59









 





     Section 1104. Notice of Redemption. 



     Notice of redemption shall be given by first-class mail, postage prepaid, mailed not fewer
than 30 nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in
the Securities to be redeemed, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.



     Failure to give notice by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part, or any defect in the notice
of any such Holder, shall not affect the validity of the proceedings for the redemption of any
other Securities or portion thereof.



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



     All notices of redemption shall identify the Securities to be redeemed (including CUSIP
number(s)) and shall state:




     (1) the Redemption Date;




     (2) the Redemption Price (including accrued interest, if any);




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




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




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




     (6) if applicable, the conversion price, that the date on which the right to convert
the principal of the Securities or the portions thereof to be redeemed will terminate will
be the Business Day prior to the Redemption Date and the place or places where such
Securities may be surrendered for conversion;




     (7) in case any Securities are 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; and




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



60









 





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



     Section 1105. Deposit of Redemption Price. 



     On or prior to 11:00 a.m., New York time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.



     If any Security called for redemption is converted, any money deposited with the Trustee or
with a Paying Agent or so segregated and held in trust for the redemption of such Security shall
(subject to the right of any Holder of such Security to receive interest as provided in the last
paragraph of Section 307) be paid to the Company on Company Request, or if then held by the
Company, shall be discharged from such trust.



     Section 1106. Securities Payable on Redemption Date. 



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



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



     Section 1107. Securities Redeemed in Part. 



     Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or its 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, having endorsed thereon the Guarantee executed by the
Guarantors 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. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depositary or other Depositary
for such Security in global form as shall be specified in the Company Order with respect thereto to
the Trustee, without service charge, a new Security in global form in denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global form so surrendered.



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ARTICLE TWELVE




SINKING FUNDS




     Section 1201. Applicability of Article. 



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



     The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of such Securities.



     Section 1202. 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 any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities; provided
that the Securities to be so credited have not been previously so credited. The Securities
to be so credited shall be received and credited for such purpose by the Trustee at the Redemption
Price, as specified in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced accordingly.



     Section 1203. Redemption of Securities for Sinking Fund. 



     Not fewer than 60 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also
deliver to the Trustee any Securities to be so delivered. Not fewer than 30 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.



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ARTICLE THIRTEEN




DEFEASANCE AND COVENANT DEFEASANCE




     Section 1301.  [Intentionally Omitted]. 



     [Intentionally omitted.]



     Section 1302. Defeasance and Discharge.



     The Company shall be deemed to have been discharged from its obligations with respect to any
Securities or any series of Securities, and each Guarantor shall be deemed to have been discharged
from its obligations with respect to its Guarantee of such Securities, as provided in this Section
on and after the date the conditions set forth in Section 1304, in the case of defeasance, are
satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following which shall survive
until all the Securities of such series have in fact been paid in full: (1) the rights of Holders
of such Securities to receive, solely from the trust fund described in Section 1304 and as more
fully set forth in such Section, payments in respect of the principal of and any premium and
interest on such Securities when payments are due, (2) the Company’s obligations with respect to
such Securities under Sections 304, 305, 306, 1002 and 1003, and, if applicable, Article Fourteen,
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this
Article. Subject to compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1303 applied to such Securities.



     Section 1303. Covenant Defeasance. 



     On and after the date the conditions set forth in Section 1304 are satisfied, (1) the Company
shall be released from its obligations under Article Eight, Sections 704 and 1006, inclusive, and
(2) the occurrence of any event specified in Sections 501(4) (with respect to any of Article Eight,
Section 704 or Section 1006, inclusive, shall be deemed not to be or result in an Event of Default,
in each case with respect to Outstanding Securities of such series as provided in this Section
(hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, 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 specified Article or Section (to
the extent so specified in the case of Section 501(4)), whether directly or indirectly by reason of
any reference elsewhere herein to any such Article or Section or by reason of any reference in any
such Article or Section to any other provision herein or in any other document, but the remainder
of this Indenture and the Securities of such shall be unaffected thereby.



     Section 1304. Conditions to Defeasance or Covenant Defeasance. 



     The following shall be the conditions to the application of Section 1302 or Section 1303 to
any Securities or the Outstanding Securities of any series:



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     (1) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and
agrees to comply with the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of Outstanding Securities of such
series, (A) money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent certified 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 any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on Outstanding Securities of such series on
the respective Stated Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i)
a direct obligation of the United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the United States
of America, the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under Clauses (i)
or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) shall
also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or interest on
any U.S. Government Obligation which is so specified and held; provided that
(except as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment of principal
or interest evidenced by such depositary receipt.




     (2) In the event of an election to have Section 1302 apply to any Securities or any
series of Securities, as the case may be, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.




     (3) In the event of an election to have Section 1303 apply to any Securities or any
series of Securities, as the case may be, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax purposes as a result
of the deposit and Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit and Covenant Defeasance were not to occur.




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




     (5) No event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have occurred and
be continuing at the time of such deposit or, with regard to any such event specified in
Sections 501(5) and (6), at any time on or prior



64









 







to the 90th day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th day).




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




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




     (8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the Investment Company
Act unless such trust shall be registered under such Act or exempt from registration
thereunder.




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



     Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust;
Miscellaneous Provisions. 



     Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities
shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated from other funds except to
the extent required by law.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company and any Paying Agent upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 1304 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may
be, with respect to such Securities.



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     Section 1306. Reinstatement. 



     If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though
no deposit had occurred pursuant to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section
1305 with respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium or interest
on any such Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive such payment from
the money so held in trust.



ARTICLE FOURTEEN




CONVERSION AND EXCHANGE OF SECURITIES




     Section 1401. Applicability of Article. 



     The provisions of this Article shall be applicable to the Securities of any series which are
convertible or exchangeable into shares of Common Stock of the Company, and the issuance of such
shares of Common Stock upon the conversion or exchange of such Securities, except as otherwise
specified as contemplated by Section 301 for the Securities of such series.



     Section 1402. Exercise of Conversion and Exchange Privilege. 



     In order to exercise a conversion or exchange privilege, the Holder of a Security of a series
with such a privilege shall surrender such Security to the Company at the office or agency
maintained for that purpose pursuant to Section 1002, accompanied by a duly executed conversion or
exchange notice to the Company substantially in the form set forth in Section 206 stating that the
Holder elects to convert or exchange such Security or a specified portion thereof. Such notice
shall also state, if different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion or exchange shall be issued. Securities surrendered for conversion or
exchange shall (if so required by the Company or the Trustee) be duly endorsed by or accompanied by
instruments of transfer in forms satisfactory to the Company and the Trustee duly executed by the
registered Holder or its attorney duly authorized in writing; and Securities so surrendered for
conversion or exchange (in whole or in part) during the period from the close of business on any
Regular Record Date to the opening of business on the next succeeding Interest Payment Date
(excluding Securities or portions thereof called for redemption during the period beginning at the
close of business on a Regular Record Date and ending at the opening of business on the first
Business Day after the next succeeding Interest Payment Date, or if such Interest Payment Date is
not a Business Day, the second such Business Day) shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of such Security then being converted or exchanged, and such interest shall
be payable to such registered Holder notwithstanding the conversion or exchange of such Security,
subject to the provisions of Section 307 relating to the payment of Defaulted Interest by the
Company. As promptly as practicable after the receipt of such notice and of any payment required
pursuant to a Board Resolution and, subject to Section 303, set forth, or determined in the manner
provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto
setting forth the terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as the Company may prescribe, the Company shall issue
and shall deliver, at the office or agency at which such Security is surrendered, to such Holder or
on its written



66









 







order, a certificate or certificates for the number of full shares of Common Stock issuable
upon the conversion or exchange of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers’ Certificate or supplemental indenture, and cash
as provided therein in respect of any fractional share of such Common Stock otherwise issuable upon
such conversion or exchange. Such conversion or exchange shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice and such payment, if
required, shall have been received in proper order for conversion or exchange by the Company and
such Security shall have been surrendered as aforesaid (unless such Holder shall have so
surrendered such Security and shall have instructed the Company to effect the conversion or
exchange on a particular date following such surrender and such Holder shall be entitled to convert
or exchange such Security on such date, in which case such conversion or exchange shall be deemed
to be effected immediately prior to the close of business on such date) and at such time the rights
of the Holder of such Security as such Security Holder shall cease and the person or persons in
whose name or names any certificate or certificates for shares of Common Stock of the Company shall
be issuable upon such conversion or exchange shall be deemed to have become the Holder or Holders
of record of the shares represented thereby. Except as set forth above and subject to the final
paragraph of Section 307, no payment or adjustment shall be made upon any conversion or exchange on
account of any interest accrued on the Securities (or any part thereof) surrendered for conversion
or exchange or on account of any dividends on the Common Stock of the Company issued upon such
conversion or exchange.



     In the case of any Security which is converted or exchanged in part only, upon such conversion
or exchange the Company shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Company, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount equal to the unconverted or
unexchanged portion of such Security.



     Section 1403. No Fractional Shares. 



     No fractional share of Common Stock of the Company shall be issued upon conversions or
exchanges of Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares which shall be
issuable upon conversion or exchange shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof to the extent permitted hereby) so
surrendered. If, except for the provisions of this Section 1403, any Holder of a Security or
Securities would be entitled to a fractional share of Common Stock of the Company upon the
conversion or exchange of such Security or Securities, or specified portions thereof, the Company
shall pay to such Holder an amount in cash equal to the current market value of such fractional
share computed (unless otherwise specified with respect to any series of Securities), (i) if such
Common Stock is listed or admitted to unlisted trading privileges on a national securities exchange
or market, on the basis of the last reported sale price regular way on such exchange or market on
the last trading day prior to the date of conversion or exchange upon which such a sale shall have
been effected, or (ii) if such Common Stock is not at the time so listed or admitted to unlisted
trading privileges on a national securities exchange or market, on the basis of the average of the
bid and asked prices of such Common Stock in the over-the counter market, on the last trading day
prior to the date of conversion or exchange, as reported by the National Quotation Bureau,
Incorporated or similar organization if the National Quotation Bureau, Incorporated is no longer
reporting such information, or if not so available, the fair market price as determined by the
Board of Directors. For purposes of this Section, “trading day” shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday other than any day on which the Common Stock is not traded on the
New York Stock Exchange, or if the Common Stock is not traded on the New York Stock Exchange, on
the principal exchange or market on which the Common Stock is traded or quoted.



     Section 1404. Adjustment of Conversion and Exchange Price. 



     The conversion or exchange price of Securities of any series that is convertible or
exchangeable into Common Stock of the Company shall be adjusted for any stock dividends, stock
splits, reclassifications,



67









 







combinations or similar transactions in accordance with the terms of the supplemental
indenture or Board Resolutions setting forth the terms of the Securities of such series.



     Whenever the conversion or exchange price is adjusted, the Company shall compute the adjusted
conversion or exchange price in accordance with terms of the applicable Board Resolution or
supplemental indenture and shall prepare an Officers’ Certificate setting forth the adjusted
conversion or exchange price and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall forthwith be filed at each office or agency maintained for the
purpose of conversion or exchange of Securities pursuant to Section 1002 and, if different, with
the Trustee. The Company shall forthwith cause a notice setting forth the adjusted conversion or
exchange price to be mailed, first class postage prepaid, to each Holder of Securities of such
series at its address appearing on the Security Register and to any conversion or exchange agent
other than the Trustee.



     Section 1405. Notice of Certain Corporate Actions. 



     In case:




     (1) the Company shall declare a dividend (or any other distribution) on its Common
Stock payable otherwise than in cash out of its retained earnings (other than a dividend for
which approval of any shareholders of the Company is required) that would require an
adjustment pursuant to Section 1404; or




     (2) the Company shall authorize the granting to all or substantially all of the holders
of its Common Stock of rights, options or warrants to subscribe for or purchase any shares
of capital stock of any class or of any other rights (other than any such grant for which
approval of any shareholders of the Company is required); or




     (3) of any reclassification of the Common Stock of the Company (other than a
subdivision or combination of its outstanding shares of Common Stock, or of any
consolidation, merger or share exchange to which the Company is a party and for which
approval of any shareholders of the Company is required), or of the sale of all or
substantially all of the assets of the Company; or




     (4) of the voluntary or involuntary dissolution, liquidation or winding up of the
Company; then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the Security Register,
at least 20 days (or 10 days in any case specified in Clause (1) or (2) above) prior to the
applicable record date hereinafter specified, a notice stating (i) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights, options or
warrants, or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution, rights, options or warrants
are to be determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up. If at any time the Trustee shall not be the
conversion or exchange agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.



68









 





     Section 1406. Reservation of Shares of Common Stock. 



     The Company shall at all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, for the purpose of effecting the conversion or exchange
of Securities, the full number of shares of Common Stock of the Company then issuable upon the
conversion or exchange of all outstanding Securities of any series that has conversion or exchange
rights.



     Section 1407. Payment of Certain Taxes Upon Conversion and Exchange. 



     Except as provided in the next sentence, the Company will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of its Common Stock on conversion or exchange
of Securities pursuant hereto. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of shares of its Common
Stock in a name other than that of the Holder of the Security or Securities to be converted or
exchanged, and no such issue or delivery shall be made unless and until the person requesting such
issue has paid to the Company the amount of any such tax, or has established, to the satisfaction
of the Company, that such tax has been paid.



     Section 1408. Nonassessability. 



     The Company covenants that all shares of its Common Stock which may be issued upon conversion
or exchange of Securities will upon issue in accordance with the terms hereof be duly and validly
issued and fully paid and nonassessable.



     Section 1409. Provision in Case of Consolidation, Merger or Sale of Assets. 



     In case of any consolidation or merger of the Company with or into any other Person in a
transaction in which the Company is not the surviving Person, any merger of another Person with or
into the Company (other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company) or any conveyance,
sale, transfer or lease of all or substantially all of the property or assets of the Company in a
single transaction or a series of related transactions, the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of each Security of a
series then Outstanding that is convertible or exchangeable into Common Stock of the Company shall
have the right thereafter (which right shall be the exclusive conversion or exchange right
thereafter available to said Holder), during the period such Security shall be convertible or
exchangeable, to convert or exchange such Security only into the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or
lease by a holder of the number of shares of Common Stock of the Company into which such Security
might have been converted or exchanged immediately prior to such consolidation, merger, conveyance,
sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not a Person
with which the Company consolidated or merged with or into or which merged into or with the Company
or to which such conveyance, sale, transfer or lease was made, as the case may be (a “Constituent
Person”), or an Affiliate of a Constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer or lease (provided that if
the kind or amount of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer, or lease is not the same for each share of Common Stock of the
Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease
by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of
election shall not have been exercised (“Non-electing Share”), then for the purpose of this Section
1409 the kind and amount of securities, cash and other property receivable upon such consolidation,
merger,



69









 







conveyance, sale, transfer or lease by the holders of each Non-electing Share shall be deemed
to be the kind and amount so receivable per share by a plurality of the Non-electing Shares). Such
supplemental indenture shall provide for adjustments which, for events subsequent to the effective
date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article or in accordance with the terms of the supplemental
indenture or Board Resolutions setting forth the terms of such adjustments. The above provisions of
this Section 1409 shall similarly apply to successive consolidations, mergers, conveyances, sales,
transfers or leases. Notice of the execution of such a supplemental indenture shall be given by the
Company to the Holder of each Security of a series that is convertible or exchangeable into Common
Stock of the Company as provided in Section 106 promptly upon such execution.



     Neither the Trustee nor any conversion or exchange agent, if any, shall be under any
responsibility to determine the correctness of any provisions contained in any such supplemental
indenture relating either to the kind or amount of shares of stock or other securities or property
or cash receivable by Holders of Securities of a series convertible or exchangeable into Common
Stock of the Company upon the conversion or exchange of their Securities after any such
consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment, but may
accept as conclusive evidence of the correctness of any such provisions, and shall be protected in
relying upon, an Opinion of Counsel with respect thereto, which the Company shall cause to be
furnished to the Trustee upon request.



     Section 1410. Duties of Trustee Regarding Conversion and Exchange. 



     Neither the Trustee nor any conversion or exchange agent shall at any time be under any duty
or responsibility to any Holder of Securities of any series that is convertible or exchangeable
into Common Stock of the Company to determine whether any facts exist which may require any
adjustment of the conversion or exchange price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, whether herein or in any supplemental
indenture (or whether any provisions of any supplemental indenture are correct), any resolutions of
the Board of Directors or written instrument executed by one or more officers of the Company
provided to be employed in making the same. Neither the Trustee nor any conversion or exchange
agent shall be accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock of the Company, or of any securities or property, which may at any time be
issued or delivered upon the conversion or exchange of any Securities and neither the Trustee nor
any conversion or exchange agent makes any representation with respect thereto. Subject to the
provisions of Section 601, neither the Trustee nor any conversion or exchange agent shall be
responsible for any failure of the Company to issue, transfer or deliver any shares of its Common
Stock or stock certificates or other securities or property upon the surrender of any Security for
the purpose of conversion or exchange or to comply with any of the covenants of the Company
contained in this Article Fourteen or in the applicable supplemental indenture, resolutions of the
Board of Directors or written instrument executed by one or more duly authorized officers of the
Company.



     Section 1411. Repayment of Certain Funds Upon Conversion and Exchange. 



     Any funds which at any time shall have been deposited by the Company or on its behalf with the
Trustee or any other paying agent for the purpose of paying the principal of, and premium, if any,
and interest, if any, on any of the Securities (including, but not limited to, funds deposited for
the sinking fund referred to in Article Twelve hereof and funds deposited pursuant to Article
Thirteen hereof) and which shall not be required for such purposes because of the conversion or
exchange of such Securities as provided in this Article Fourteen shall after such conversion or
exchange be repaid to the Company by the Trustee upon the Company’s written request.



70









 





ARTICLE FIFTEEN




GUARANTEE




     Section 1501. Unconditional Guarantee. 




     (1) Notwithstanding any provision of this Article Fifteen to the contrary, the
provisions of this Article Fifteen shall be applicable only to, and inure solely to the
benefit of, the Securities of any series designated, pursuant to Section 301, as entitled to
the benefits of the Guarantee of each of the Guarantors.




     (2) For value received, each of the Guarantors hereby jointly and severally, fully,
unconditionally and absolutely guarantees (the “Guarantee”) to the Holders and to the
Trustee the due and punctual payment of the principal of, and premium, if any, and interest
on the Securities and all other amounts due and payable under this Indenture and the
Securities by the Company, when and as such principal, premium, if any, and interest shall
become due and payable, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise, according to the terms of the Securities and this
Indenture, subject to the limitations set forth in Section 1503.




     (3) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for
whatever reason, each of the Guarantors will be jointly and severally obligated to pay the
same immediately. The Guarantee hereunder is intended to be a general, unsecured, senior
obligation of each of the Guarantors and will rank pari passu in right of payment with all
Debt of each Guarantor that is not, by its terms, expressly subordinated in right of payment
to the Guarantee. Each of the Guarantors hereby agrees that its obligations hereunder shall
be full, unconditional and absolute, irrespective of the validity, regularity or
enforceability of the Securities, the Guarantee (including the Guarantee of any other
Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company or any other Guarantor, or any action to
enforce the same or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of any of the Guarantors. Each of the Guarantors hereby
agrees that in the event of a default in payment of the principal of, or premium, if any, or
interest on the Securities, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise, legal proceedings may be instituted by the
Trustee on behalf of the Holders or, subject to Section 507, by the Holders, on the terms
and conditions set forth in this Indenture, directly against such Guarantor to enforce the
Guarantee without first proceeding against the Company or any other Guarantor.




     (4) The obligations of each of the Guarantors under this Article Fifteen shall be as
aforesaid full, unconditional and absolute and shall not be impaired, modified, released or
limited by any occurrence or condition whatsoever, including (i) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or any change in, any of
the obligations and liabilities of the Company or any of the Guarantors contained in the
Securities or this Indenture, (ii) any impairment, modification, release or limitation of
the liability of the Company, any of the Guarantors or any of their estates in bankruptcy,
or any remedy for the enforcement thereof, resulting from the operation of any present or
future provision of any applicable Federal or State bankruptcy, insolvency, reorganization
or similar law, or other statute or from the decision of any court, (iii) the assertion or
exercise by the Company, any of the Guarantors or the Trustee of any rights or remedies
under the Securities or this Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the assignment or the purported assignment of any property
as security for the Securities, including all or any part of the rights of the Company or
any of the Guarantors under this Indenture, (v) the extension of the time for payment by the
Company or any of the Guarantors of any payments or other sums or any part thereof owing or
payable under any of the terms and provisions of the Securities or this Indenture or of the
time for performance by the Company or any of



71









 







the Guarantors of any other obligations under or arising out of any such terms and
provisions or the extension or the renewal of any thereof, (vi) the modification or
amendment (whether material or otherwise) of any duty, agreement or obligation of the
Company or any of the Guarantors set forth in this Indenture, (vii) the voluntary or
involuntary liquidation, dissolution, sale or other disposition of all or substantially all
of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceeding affecting, the Company or any of the Guarantors
or any of their respective assets, or the disaffirmance of the Securities, the Guarantee or
this Indenture in any such proceeding, (viii) the release or discharge of the Company or any
of the Guarantors from the performance or observance of any agreement, covenant, term or
condition contained in any of such instruments by operation of law, (ix) the
unenforceability of the Securities, the Guarantee or this Indenture or (x) any other
circumstances (other than payment in full or discharge of all amounts guaranteed pursuant to
the Guarantee) which might otherwise constitute a legal or equitable discharge of a surety
or guarantor.




     (5) Each of the Guarantors hereby (i) waives diligence, presentment, demand of payment,
filing of claims with a court in the event of the merger, bankruptcy, insolvency or
reorganization of the Company or any of the Guarantors, and all demands whatsoever, (ii)
acknowledges that any agreement, instrument or document evidencing the Guarantee may be
transferred and that the benefit of its obligations hereunder shall extend to each holder of
any agreement, instrument or document evidencing the Guarantee without notice to it and
(iii) covenants that the Guarantee will not be discharged except by complete performance of
the Guarantee. Each of the Guarantors further agrees that if at any time all or any part of
any payment theretofore applied by any Person to the Guarantee is, or must be, rescinded or
returned for any reason whatsoever, including the bankruptcy, insolvency or reorganization
of the Company or any of the Guarantors, the Guarantee shall, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Guarantee shall continue to be effective or be
reinstated, as the case may be, as though such application had not been made.




     (6) Each of the Guarantors shall be subrogated to all rights of the Holders and the
Trustee against the Company in respect of any amounts paid by such Guarantor pursuant to the
provisions of this Indenture, provided, however, that such Guarantor, shall
not be entitled to enforce or to receive any payments arising out of, or based upon, such
right of subrogation until all of the Securities and the Guarantee shall have been paid in
full or discharged.



     Section 1502. Execution and Delivery of Guarantee. 



     To further evidence the Guarantee set forth in Section 1501, each of the Guarantors hereby
agrees that a notation relating to such Guarantee, substantially in the form attached hereto as
Annex A, shall be endorsed on each Security entitled to the benefits of the Guarantee authenticated
and delivered by the Trustee and executed by either manual or facsimile signature of an officer of
such Guarantor, or in the case of a Guarantor that is a limited partnership, an officer of the
general partner of each Guarantor, or in the case of a Guarantor that is a limited liability
company, an officer or manager of such Guarantor. Each of the Guarantors hereby agrees that the
Guarantee set forth in Section 1501 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation relating to the Guarantee. If any officer of any
Guarantor, or in the case of a Guarantor that is a limited partnership, any officer of the general
partner of the Guarantor, or in the case of a Guarantor that is a limited liability company, an
officer or manager of such Guarantor, whose signature is on this Indenture or a Security no longer
holds that office at the time the Trustee authenticates such Security or at any time thereafter,
the Guarantee of such Security shall be valid nevertheless. The delivery of any Security by the
Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantors.



     The Trustee hereby accepts the trusts in this Indenture upon the terms and conditions herein
set forth.



72









 





     Section 1503. Limitation on Guarantors’ Liability. 




     (1) Each Guarantor and by its acceptance hereof each Holder of a Security entitled to
the benefits of the Guarantee hereby confirm that it is the intention of all such parties
that the guarantee by such Guarantor pursuant to the Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any Federal or State law. To effectuate the foregoing
intention, the Holders of a Security entitled to the benefits of the Guarantee and the
Guarantors hereby irrevocably agree that the obligations of each Guarantor under the
Guarantee shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and to any collections from or payments
made by or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under the Guarantee, not result in the obligations of such Guarantor under the
Guarantee constituting a fraudulent conveyance or fraudulent transfer under Federal or State
law.




     (2) The Guarantee is expressly limited so that in no event, including the acceleration
of the maturity of the Securities, shall the amount paid or agreed to be paid in respect of
interest on the Securities (or fees or other amounts deemed payment for the use of funds)
exceed the maximum permissible amount under applicable law, as in effect on the date hereof
and as subsequently amended or modified to allow a greater amount of interest (or fees or
other amounts deemed payment for the use of funds) to be paid under the Guarantee. If for
any reason the amount in respect of interest (or fees or other amounts deemed payment for
the use of funds) required by the Guarantee exceeds such maximum permissible amount, the
obligation to pay interest under the Guarantee (or fees or other amounts deemed payment for
the use of funds) shall be automatically reduced to such maximum permissible amount and any
amounts collected by any holder of any Security in excess of the permissible amount shall be
automatically applied to reduce the outstanding principal on such Security.



     Section 1504. Release of Guarantors from Guarantee. 




     (1) Notwithstanding any other provisions of this Indenture, the Guarantee of any
Guarantor may be released upon the terms and subject to the conditions set forth in Section
1302 and in this Section 1504. Provided that no Default shall have occurred and shall be
continuing under this Indenture, the Guarantee issued by a Guarantor pursuant to this
Article Fifteen shall be unconditionally released and discharged: (i) automatically upon (A)
any sale, exchange or transfer, whether by way of merger or otherwise, to any Person that is
not an Affiliate of the Company, of all of the Company’s direct or indirect limited
partnership or other equity interests in such Guarantor (provided such sale, exchange or
transfer is not prohibited by this Indenture) or (B) the merger of such Guarantor into the
Company or any other Guarantor or the liquidation and dissolution of such Guarantor (in each
case to the extent not prohibited by this Indenture); or (ii) as set forth in an applicable
indenture supplemental hereto.




     (2) The Trustee shall deliver an appropriate instrument evidencing any release of a
Guarantor from the Guarantee upon receipt of a written request of the Company accompanied by
an Officers’ Certificate and an Opinion of Counsel to the effect that the Guarantor is
entitled to such release in accordance with the provisions of this Indenture. Any Guarantor
not so released shall remain liable for the full amount of principal of (and premium, if
any) and interest on the Securities entitled to the benefits of the Guarantee as provided in
this Indenture, subject to the limitations of Section 1503.



73









 





     Section 1505. Guarantor Contribution. 



     In order to provide for just and equitable contribution among the Guarantors, the Guarantors
hereby agree, inter se, that in the event any payment or distribution is made by any Guarantor (a
“Funding Guarantor”) under the Guarantee, such Funding Guarantor shall be entitled to a
contribution from each other Guarantor (if any) in a pro rata amount based on the net assets of
each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by
that Funding Guarantor in discharging the Company’s obligations with respect to the Securities or
any other Guarantor’s obligations with respect to the Guarantee.



[Signature page follows]




74









 









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



	 	 	 	 	 
	 	EXPRESS SCRIPTS, INC.

 	 
	 	By:  	/s/ George Paz	 
	 	 	Name:  	George Paz 	 
	 	 	Title:  	Chairman, Chief Executive Officer and President 	 
	 



	 	 	 	 	 
	 	AIRPORT HOLDINGS, LLC

ESI REALTY, LLC

 	 
	 	By:  	Express Scripts, Inc., as sole Member
 	 
	 	 	 
	 	By:  	/s/ George Paz	 
	 	 	Name:  	George Paz 	 
	 	 	Title:  	Chairman, Chief Executive Officer and President 	 



 









 









	 	 	 	 	 



	 	 	 	 	 
	 	BYFIELD DRUG, INC.

CHESAPEAKE INFUSION, INC.

CURASCRIPT, INC.

CURASCRIPT PBM SERVICES, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY

     DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

FRECO, INC.

FREEDOM SERVICE COMPANY, LLC

HEALTHBRIDGE REIMBURSEMENT AND

     PRODUCT SUPPORT, INC.

IBIOLOGIC, INC.

LYNNFIELD DRUG, INC.

MATRIX GPO LLC

MOORESVILLE ON-SITE PHARMACY, LLC

NEXTRX SUB I, LLC

NEXTRX SUB II, LLC

NEXTRX SUB III, LLC

PRIORITYHEALTHCARE.COM, INC.

PRIORITY HEALTHCARE CORPORATION

PRIORITY HEALTHCARE CORPORATION WEST

PRIORITY HEALTHCARE PHARMACY, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE
VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

 	 
	 	By:  	/s/
Patrick McNamee	 
	 	 	Name:  	Patrick McNamee 	 
	 	 	Title:  	President 	 
	 



	 	 	 	 	 
	 	CARE CONTINUUM, INC.

HEALTHBRIDGE, INC.

LYNNFIELD COMPOUNDING CENTER, INC.

PHOENIX MARKETING GROUP, LLC

PRIORITY HEALTHCARE DISTRIBUTION, INC.

 	 
	 	By:  	/s/ Michael Holmes
	 
	 	 	Name:  	Michael Holmes 	 
	 	 	Title:  	President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CFI OF NEW JERSEY, INC.

DIVERSIFIED PHARMACEUTICAL SERVICES, INC.

ESI CLAIMS, INC.

ESI ENTERPRISES, LLC

EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC

EXPRESS SCRIPTS SALES DEVELOPMENT CO.

EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE
HOLDINGS, INC.

IVTX, INC.

NATIONAL PRESCRIPTION
ADMINISTRATORS, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.

 	 
	 	By:  	/s/
George Paz 	 
	 	 	Name:  	George Paz 	 
	 	 	Title:  	President 	 
	 
	 	CONNECTYOURCARE, LLC

CONNECTYOURCARE COMPANY, LLC

 	 
	 	By:  	/s/
Marc Palmer 	 
	 	 	Name:  	Marc Palmer 	 
	 	 	Title:  	President 	 
	 
	 	ESI PARTNERSHIP

 	 
	 	 	 
	 	By:  	                  Express Scripts, Inc., as Partner
 	 
	 	 	 
	 	By:  	
/s/ George Paz 
 	 
	 	 	Name:  	George Paz 	 
	 	 	Title:  	Chairman, Chief Executive Officer and
President 	 
	 
	 	 	 
	 	By:  	                  ESI-GP Holdings, Inc., as Partner
 	 
	 	 	 
	 	By:  	
/s/ Tom Rocheford 
 	 
	 	 	Name:  	Tom Rocheford 	 
	 	 	Title:  	President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ESI-GP HOLDINGS, INC.

ESI RESOURCES, INC.

 	 
	 	By:  	/s/
Tom Rocheford 	 
	 	 	Name:  	Tom Rocheford 	 
	 	 	Title:  	President 	 
	 
	 	EXPRESS SCRIPTS CANADA HOLDING, CO.

 	 
	 	By:  	/s/
Michael Biskey 	 
	 	 	Name:  	Michael Biskey 	 
	 	 	Title:  	President 	 
	 
	 	MSC — MEDICAL SERVICES COMPANY

SPEEDY RE-EMPLOYMENT, LLC

 	 
	 	By:  	/s/
Edward Ignaczak 	 
	 	 	Name:  	Edward Ignaczak 	 
	 	 	Title:  	President 	 
	 
	 	SPECTRACARE OF INDIANA

 	 
	 	By:  	                    Spectracare, Inc., as Partner
 	 
	 	 	 
	 	By:  	
/s/ Patrick McNamee 
 	 
	 	 	Name:  	Patrick McNamee 	 
	 	 	Title:  	President 	 
	 	 	 
	 	By:  	                   Care Continuum, Inc., as Partner
 	 
	 	 	 
	 	By:  	
/s/ Michael Holmes 
 	 
	 	 	Name:  	Michael Holmes 	 
	 	 	Title:  	President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	UNION BANK, N.A.,

As Trustee

 	 
	 	By:  	/s/
Patricia Phillips-Coward	 
	 	 	Name:  	Patricia Phillips-Coward	 
	 	 	Title:  	Vice President	 



 









 






	 	 	 	 	 



Annex A




NOTATION OF GUARANTEE





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



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



	 	 	 	 	 
	 	AIRPORT HOLDINGS, LLC

ESI REALTY, LLC

 	 
	 	By:  	             Express Scripts, Inc., as sole Member
 	 
	 
	 	By:  	/s/
George Paz 	 
	 	 	Name:  	George Paz 	 
	 	 	Title:  	Chairman, Chief Executive Officer and President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BYFIELD DRUG, INC.

CHESAPEAKE INFUSION, INC.

CURASCRIPT, INC.

CURASCRIPT PBM SERVICES, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY

     DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION

     MANAGEMENT CO.

FRECO, INC.

FREEDOM SERVICE COMPANY, LLC

HEALTHBRIDGE REIMBURSEMENT AND

     PRODUCT SUPPORT, INC.

IBIOLOGIC, INC.

LYNNFIELD DRUG, INC.

MATRIX GPO LLC

MOORESVILLE ON-SITE PHARMACY, LLC

NEXTRX SUB I, LLC

NEXTRX SUB II, LLC

NEXTRX SUB III, LLC

PRIORITYHEALTHCARE.COM, INC.

PRIORITY HEALTHCARE CORPORATION

PRIORITY HEALTHCARE CORPORATION WEST

PRIORITY HEALTHCARE PHARMACY, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

 	 
	 	By:  	/s/
Patrick McNamee 	 
	 	 	Name:  	Patrick McNamee 	 
	 	 	Title:  	President 	 
	 



	 	 	 	 	 
	 	CARE CONTINUUM, INC.

HEALTHBRIDGE, INC.

LYNNFIELD COMPOUNDING CENTER, INC.

PHOENIX MARKETING GROUP, LLC

PRIORITY HEALTHCARE DISTRIBUTION, INC.

 	 
	 	By:  	/s/
Michael Holmes 	 
	 	 	Name:  	Michael Holmes 	 
	 	 	Title:  	President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CFI OF NEW JERSEY, INC.

DIVERSIFIED PHARMACEUTICAL SERVICES, INC.

ESI CLAIMS, INC.

ESI ENTERPRISES, LLC

EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC

EXPRESS SCRIPTS SALES DEVELOPMENT CO.

EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE
HOLDINGS, INC.

IVTX, INC.

NATIONAL PRESCRIPTION
ADMINISTRATORS, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.

 	 
	 	By:  	/s/
George Paz 	 
	 	 	Name:  	George Paz 	 
	 	 	Title:  	President 	 
	 
	 	CONNECTYOURCARE, LLC

CONNECTYOURCARE COMPANY, LLC

 	 
	 	By:  	/s/
Marc Palmer 	 
	 	 	Name:  	Marc Palmer 	 
	 	 	Title:  	President 	 
	 
	 	ESI PARTNERSHIP

 	 
	 	By:  	                  Express Scripts, Inc., as Partner
 	 
	 	 	 
	 	By:  	/s/
George Paz 
 	 
	 	 	Name:  	George Paz 	 
	 	 	Title:  	Chairman, Chief Executive Officer and
President 	 
	 
	 	 	 
	 	By:  	                  ESI-GP Holdings, Inc., as Partner
 	 
	 	 	 
	 	By:  	
/s/ Tom Rocheford 
 	 
	 	 	Name:  	Tom Rocheford 	 
	 	 	Title:  	President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ESI-GP HOLDINGS, INC.

ESI RESOURCES, INC.

 	 
	 	By:  	/s/
Tom Rocheford 	 
	 	 	Name:  	Tom Rocheford 	 
	 	 	Title:  	President 	 
	 
	 	EXPRESS SCRIPTS CANADA HOLDING, CO.

 	 
	 	By:  	/s/
Michael Biskey 	 
	 	 	Name:  	Michael Biskey 	 
	 	 	Title:  	President 	 
	 
	 	MSC — MEDICAL SERVICES COMPANY

SPEEDY RE-EMPLOYMENT, LLC

 	 
	 	By:  	/s/
Edward Ignaczak 	 
	 	 	Name:  	Edward Ignaczak 	 
	 	 	Title:  	President 	 
	 
	 	SPECTRACARE OF INDIANA

 	 
	 	By:  	                    Spectracare, Inc., as Partner
 	 
	 	 	 
	 	By:  	
/s/ Patrick McNamee 
 	 
	 	 	Name:  	Patrick McNamee 	 
	 	 	Title:  	President 	 
	 
	 	 	 
	 	By:  	                   Care Continuum, Inc., as Partner
 	 
	 	 	 
	 	By:  	
/s/ Michael Holmes 
 	 
	 	 	Name:  	Michael Holmes 	 
	 	 	Title:  	President