exv4w1






EXHIBIT 4.1




EXECUTION COPY




 





WESTERN REFINING, INC.




as the Company




and




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




as Trustee




 






Senior Indenture




Dated as of June 10, 2009




 






 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1

Definitions and Incorporation by Reference

	 
	 	 	 	 
	Section 1.01. Definitions

	 	 	1	 
	Section 1.02. Other Definitions

	 	 	5	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act

	 	 	6	 
	Section 1.04. Rules of Construction

	 	 	6	 
	 
	 	 	 	 
	ARTICLE 2

The Securities

	 
	 	 	 	 
	Section 2.01. Form and Dating

	 	 	7	 
	Section 2.02. Execution And Authentication

	 	 	7	 
	Section 2.03. Amount Unlimited; Issuable in Series

	 	 	9	 
	Section 2.04. Denomination and Date of Securities; Payments of Interest

	 	 	12	 
	Section 2.05. Registrar and Paying Agent; Agents Generally

	 	 	13	 
	Section 2.06. Paying Agent to Hold Money in Trust

	 	 	13	 
	Section 2.07. Transfer and Exchange

	 	 	14	 
	Section 2.08. Replacement Securities

	 	 	17	 
	Section 2.09. Outstanding Securities

	 	 	18	 
	Section 2.10. Temporary Securities

	 	 	19	 
	Section 2.11. Cancellation

	 	 	19	 
	Section 2.12. CUSIP Numbers

	 	 	20	 
	Section 2.13. Defaulted Interest

	 	 	20	 
	Section 2.14. Series May Include Tranches

	 	 	20	 
	 
	 	 	 	 
	ARTICLE 3

Redemption

	 
	 	 	 	 
	Section 3.01. Applicability of Article

	 	 	20	 
	Section 3.02. Notice of Redemption; Partial Redemptions

	 	 	21	 
	Section 3.03. Payment Of Securities Called For Redemption

	 	 	23	 
	Section 3.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption

	 	 	23	 
	Section 3.05. Mandatory and Optional Sinking Funds

	 	 	24	 
	 
	 	 	 	 
	ARTICLE 4

Covenants

	 
	 	 	 	 
	Section 4.01. Payment of Securities

	 	 	26	 
	Section 4.02. Maintenance of Office or Agency

	 	 	27	 






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	 	 	Page
	Section 4.03. Securityholders’ Lists

	 	 	28	 
	Section 4.04. Certificate to Trustee

	 	 	28	 
	Section 4.05. Reports by the Company

	 	 	28	 
	Section 4.06. Additional Amounts

	 	 	29	 
	 
	 	 	 	 
	ARTICLE 5

Successor Corporation

	 
	 	 	 	 
	Section 5.01. When Company May Merge, Etc

	 	 	29	 
	Section 5.02. Successor Substituted

	 	 	30	 
	 
	 	 	 	 
	ARTICLE 6

Default and Remedies

	 
	 	 	 	 
	Section 6.01. Events of Default

	 	 	30	 
	Section 6.02. Acceleration

	 	 	31	 
	Section 6.03. Other Remedies

	 	 	33	 
	Section 6.04. Waiver of Past Defaults

	 	 	33	 
	Section 6.05. Control by Majority

	 	 	33	 
	Section 6.06. Limitation on Suits

	 	 	34	 
	Section 6.07. Rights of Holders to Receive Payment

	 	 	34	 
	Section 6.08. Collection Suit by Trustee

	 	 	34	 
	Section 6.09. Trustee May File Proofs of Claim

	 	 	35	 
	Section 6.10. Application of Proceeds

	 	 	35	 
	Section 6.11. Restoration of Rights and Remedies

	 	 	36	 
	Section 6.12. Undertaking for Costs

	 	 	36	 
	Section 6.13. Rights and Remedies Cumulative

	 	 	36	 
	Section 6.14. Delay or Omission not Waiver

	 	 	37	 
	 
	 	 	 	 
	ARTICLE 7

Trustee

	 
	 	 	 	 
	Section 7.01. General

	 	 	37	 
	Section 7.02. Certain Rights of Trustee

	 	 	37	 
	Section 7.03. Individual Rights of Trustee

	 	 	39	 
	Section 7.04. Trustee’s Disclaimer

	 	 	39	 
	Section 7.05. Notice of Default

	 	 	39	 
	Section 7.06. Reports by Trustee to Holders

	 	 	40	 
	Section 7.07. Compensation and Indemnity

	 	 	40	 
	Section 7.08. Replacement of Trustee

	 	 	41	 
	Section 7.09. Acceptance of Appointment by Successor

	 	 	42	 
	Section 7.10. Successor Trustee By Merger, Etc

	 	 	43	 
	Section 7.11. Eligibility

	 	 	43	 
	Section 7.12. Money Held in Trust

	 	 	43	 






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	 	 	Page
	ARTICLE 8

Satisfaction and Discharge of Indenture; Unclaimed Moneys

	 
	 	 	 	 
	Section 8.01. Satisfaction and Discharge of Indenture

	 	 	43	 
	Section 8.02. Application by Trustee of Funds Deposited for
Payment of Securities

	 	 	45	 
	Section 8.03. Repayment of Moneys Held by Paying Agent

	 	 	45	 
	Section 8.04. Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years

	 	 	45	 
	Section 8.05. Defeasance and Discharge of Indenture

	 	 	45	 
	Section 8.06. Defeasance of Certain Obligations

	 	 	47	 
	Section 8.07. Reinstatement

	 	 	48	 
	Section 8.08. Indemnity

	 	 	49	 
	Section 8.09. Excess Funds

	 	 	49	 
	Section 8.10. Qualifying Trustee

	 	 	49	 
	 
	 	 	 	 
	ARTICLE 9

Amendments, Supplements and Waivers

	 
	 	 	 	 
	Section 9.01. Without Consent of Holders

	 	 	49	 
	Section 9.02. With Consent of Holders

	 	 	50	 
	Section 9.03. Revocation and Effect of Consent

	 	 	51	 
	Section 9.04. Notation on or Exchange of Securities

	 	 	51	 
	Section 9.05. Trustee to Sign Amendments, Etc

	 	 	52	 
	Section 9.06. Conformity with Trust Indenture Act

	 	 	52	 
	 
	 	 	 	 
	ARTICLE 10

Miscellaneous

	 
	 	 	 	 
	Section 10.01. Trust Indenture Act of 1939

	 	 	52	 
	Section 10.02. Notices

	 	 	52	 
	Section 10.03. Certificate and Opinion as to Conditions Precedent

	 	 	53	 
	Section 10.04. Statements Required in Certificate or Opinion

	 	 	54	 
	Section 10.05. Evidence of Ownership

	 	 	54	 
	Section 10.06. Rules by Trustee, Paying Agent or Registrar

	 	 	55	 
	Section 10.07. Payment Date Other Than a Business Day

	 	 	55	 
	Section 10.08. Governing Law

	 	 	55	 
	Section 10.09. No Adverse Interpretation of Other Agreements

	 	 	55	 
	Section 10.10. Successors

	 	 	55	 
	Section 10.11. Duplicate Originals

	 	 	56	 
	Section 10.12. Separability

	 	 	56	 
	Section 10.13. Table of Contents, Headings, Etc

	 	 	56	 
	Section 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability

	 	 	56	 
	Section 10.15. Judgment Currency

	 	 	56	 
	Section 10.16. Waiver of Jury Trial

	 	 	57	 
	Section 10.17. Force Majeure

	 	 	57	 






iii









 





     SENIOR INDENTURE, dated as of June 10, 2009, between Western Refining, Inc., a Delaware
corporation, as the Company, and The Bank of New York Mellon Trust Company, N.A., as Trustee.



RECITALS OF THE COMPANY




     WHEREAS, the Company has duly authorized the issue from time to time of its senior debentures,
notes or other evidences of indebtedness to be issued in one or more series (the “Securities”) up
to such principal amount or amounts as may from time to time be authorized in accordance with the
terms of this Indenture and to provide, among other things, for the authentication, delivery and
administration thereof, the Company has duly authorized the execution and delivery of this
Indenture; and



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;



     NOW, THEREFORE:



     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities or of any and all series thereof and of
the coupons, if any, appertaining thereto as follows:



ARTICLE 1

Definitions and Incorporation by Reference




     Section 1.01. Definitions.



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



     “Agent” means any Registrar, Paying Agent, transfer agent or Authenticating Agent.



     “Authorized Newspaper” means a newspaper (which, in the case of The City of New York, will, if
practicable, be The Wall Street Journal (Eastern Edition) and in the case of London, will, if
practicable, be the Financial Times



 









 




(London Edition) and published in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in The City of New York or London, as applicable. If it shall be impractical
in the opinion of the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is made or given with
the approval of the Trustee shall constitute a sufficient publication of such notice.




     “Board Resolution” means one or more resolutions of the board of directors of the Company or
any authorized committee thereof, certified by the secretary or an assistant secretary to have been
duly adopted and to be in full force and effect on the date of certification, and delivered to the
Trustee.



     “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions are authorized or required by law or regulation to close in
The City of New York, with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in London, or with respect to
Securities denominated in a specified currency other than United States dollars, in the principal
financial center of the country of the specified currency.



     “Capital Lease” means, with respect to any Person, any lease of any property which, in
conformity with GAAP, is required to be capitalized on the balance sheet of such Person.



     “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 instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.



     “Company” means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to Article 5 of this Indenture and thereafter means the successor.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be administered, which office is, at the date of this
Indenture, located at 601 Travis Street, 16th Floor, Houston, Texas 77002, Attention: Corporate
Trust Services (re: Western Refining, Inc.).



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



     “Depositary” means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as Depositary by the
Company pursuant to Section 2.03 until a



2









 







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 Registered
Global Securities of that series.



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



     “GAAP” means generally accepted accounting principles in the U.S. as in effect as of the date
hereof applied on a basis consistent with the principles, methods, procedures and practices
employed in the preparation of the Company’s audited financial statements, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other entity as is
approved by a significant segment of the accounting profession.



     “Holder” or “Securityholder” means the registered holder of any Security with respect to
Registered Securities and the bearer of any Unregistered Security or any coupon appertaining
thereto, as the case may be.



     “Indenture” means this Indenture as originally executed and delivered or as it may be amended
or supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to Sections 2.01 and 2.03.



     “Officer” means, with respect to the Company, the chairman of the board of directors, the
president or chief executive officer, any executive vice president, any senior vice president, any
vice president, the chief financial officer, the treasurer or any assistant treasurer, or the
secretary or any assistant secretary.



     “Officers’ Certificate” means a certificate signed in the name of the Company (i) by the
chairman of the board of directors, the president or chief executive officer, an executive vice
president, a senior vice president or a vice president, and (ii) by the chief financial officer,
the treasurer or any assistant treasurer, or the secretary or any assistant secretary, and
delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act, if applicable, and include (except as otherwise expressly provided in this
Indenture) the statements provided in Section 10.04, if applicable.



     “Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee
of or counsel to the Company, satisfactory to the Trustee. Each such opinion shall comply with
Section 314 of the Trust Indenture



3









 







Act, if applicable, and include the statements provided in Section 10.04, if and to the extent
required thereby.



     “original issue date” of any Security (or portion thereof) means the earlier of (a) the date
of authentication of such Security or (b) the date of any Security (or portion thereof) for which
such Security was issued (directly or indirectly) on registration of transfer, exchange or
substitution.



     “Original Issue Discount Security” means any Security that 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 6.02.



     “Periodic Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities.



     “Person” means an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.



     “Principal” of a Security means the principal amount of, and, unless the context indicates
otherwise, includes any premium payable on, the Security.



     “Registered Global Security” means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.02,
and bearing the legend prescribed in Section 2.02.



     “Registered Security” means any Security registered on the Security Register (as defined in
Section 2.05).



     “Responsible Officer” when used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office, having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with the particular subject.



     “Securities” means any of the securities, as defined in the first paragraph of the recitals
hereof, that are authenticated and delivered under this Indenture and, unless the context indicates
otherwise, shall include any coupon appertaining thereto.



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



     “Subsidiary” means, with respect to any Person, any corporation, association or other business
entity of which a majority of the capital stock or



4









 







other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.



     “Trustee” means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of Article 7 and thereafter 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.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S. Code §§
77aaa-77bbbb), as it may be amended from time to time.



     “Unregistered Security” means any Security other than a Registered Security.



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



     “Yield to Maturity” means, as the context may require, the yield to maturity (i) on a series
of Securities or (ii) if the Securities of a series are issuable from time to time, on a Security
of such series, calculated at the time of issuance of such series in the case of clause (i) or at
the time of issuance of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such Security, and calculated
in accordance with the constant interest method or such other accepted financial practice as is
specified in the terms of such Security.



     Section 1.02. Other Definitions. Each of the following terms is defined in the section set
forth opposite such term:



5









 





	 	 	 	 	 
	Term
	 	Section
	Authenticating Agent

	 	 	2.02	 
	Cash Transaction

	 	 	7.03	 
	Dollars

	 	 	4.02	 
	Event of Default

	 	 	6.01	 
	Judgment Currency

	 	 	10.15	(a)
	mandatory sinking fund payment

	 	 	3.05	 
	optional sinking fund payment

	 	 	3.05	 
	Paying Agent

	 	 	2.05	 
	record date

	 	 	2.04	 
	Registrar

	 	 	2.05	 
	Required Currency

	 	 	10.15	(a)
	Security Register

	 	 	2.05	 
	self-liquidating paper

	 	 	7.03	 
	sinking fund payment date

	 	 	3.05	 
	tranche

	 	 	2.14	 






     Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and
made a part of this Indenture. The following terms used in this Indenture that are defined by the
Trust Indenture Act have the following meanings:



     “indenture securities” means the Securities;



     “indenture security holder” means a Holder or a Securityholder;



     “indenture to be qualified” means this Indenture;



     “indenture trustee” or “institutional trustee” means the Trustee; and



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



     All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
reference in the Trust Indenture Act to another statute or defined by a rule of the Commission and
not otherwise defined herein have the meanings assigned to them therein.



     Section 1.04. Rules of Construction. Unless the context otherwise requires:




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




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



6









 






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




     (d) all references to Sections or Articles refer to Sections or Articles of this
Indenture unless otherwise indicated; and




     (e) use of masculine, feminine or neuter pronouns should not be deemed a limitation,
and the use of any such pronouns should be construed to include, where appropriate, the
other pronouns.



ARTICLE 2

The Securities




     Section 2.01. Form and Dating. The Securities of each series shall be substantially in such
form or forms (not inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions 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 imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply
with any law, or with any rules of any securities exchange or usage, all as may be determined by
the officers executing such Securities as evidenced by their execution of the Securities. Unless
otherwise so established, Unregistered Securities shall have coupons attached.



     Section 2.02. Execution And Authentication. Two Officers shall execute the Securities and
one Officer shall execute the coupons appertaining thereto for the Company by facsimile or manual
signature in the name and on behalf of the Company. The seal of the Company, if any, shall be
reproduced on the Securities. If an Officer whose signature is on a Security or coupon
appertaining thereto no longer holds that office at the time the Security is authenticated, the
Security and such coupon shall nevertheless be valid.



     The Trustee, at the expense of the Company, may appoint an authenticating agent (the
“Authenticating Agent”) to authenticate Securities. The Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such Authenticating Agent.



     A Security and the coupons appertaining thereto shall not be valid until the Trustee or
Authenticating Agent signs, manually or by facsimile, the certificate of
authentication on the Security or on the Security to which such coupon appertains by an
authorized officer. The signature shall be conclusive evidence that the Security or the Security
to which the coupon appertains has been authenticated under this Indenture.



7









 





     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series having attached thereto appropriate coupons, if any,
executed by the Company to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any Securities of a
series, the Trustee shall be entitled to receive prior to the authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:




     (a) any Board Resolution and/or executed supplemental indenture referred to in
Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the Securities of
that series were established;




     (b) an Officers’ Certificate setting forth the form or forms and terms of the
Securities, stating that the form or forms and terms of the Securities of such series have
been, or, in the case of a Periodic Offering, will be when established in accordance with
such procedures as shall be referred to therein, established in compliance with this
Indenture; and




     (c) an Opinion of Counsel substantially to the effect that the form or forms and
terms of the Securities of such series have been, or, in the case of a Periodic Offering,
will be when established in accordance with such procedures as shall be referred to
therein, established in compliance with this Indenture and that the supplemental
indenture, to the extent applicable, and Securities have been duly authorized and, if
executed and authenticated in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting creditors’ rights generally, general
principles of equity, and covering such other matters as shall be specified therein and as
shall be reasonably requested by the Trustee.



     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 Sections 2.01 and 2.02, if, in connection with a Periodic
Offering, all Securities of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01 or the
written order, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to Section
2.02 at or prior to the authentication of each Security of such series if such documents are
delivered at



8









 







or prior to the authentication upon original issuance of the first Security of such
series to be issued.



     With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, the forms and terms thereof and
the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and
the other documents delivered pursuant to Sections 2.01 and 2.02, as applicable, in connection with
the first authentication of Securities of such series.



     If the Company shall establish pursuant to Section 2.03 that the Securities of a series or a
portion thereof are to be issued in the form of one or more Registered Global Securities, then the
Company shall execute and the Trustee shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate
Principal amount of all of the Securities of such series issued in such form and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or its custodian or pursuant to such Depositary’s instructions and (iv) shall bear a
legend substantially to the following effect: “Unless and until it is exchanged in whole or in
part for Securities in definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.”



     Section 2.03. 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 Board Resolution or one or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, subject to the last sentence of this Section 2.03,



     (a) the designation of the Securities of the series, which shall distinguish the Securities of
the series from the Securities of all other series;



     (b) any limit upon the aggregate Principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture and any limitation on the ability of the Company
to increase such aggregate Principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities of the series pursuant
hereto);



9









 





     (c) the date or dates on which the Principal of the Securities of the series is payable (which
date or dates may be fixed or extendible);



     (d) the rate or rates (which may be fixed or variable) per annum at which the Securities of
the series shall bear interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;



     (e) if other than as provided in Section 4.02, the place or places where the Principal of and
any interest on Securities of the series shall be payable, any Registered Securities of the series
may be surrendered for exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to Holders may be published;



     (f) the right, if any, of the Company to redeem Securities of the series, in whole or in part,
at its option and the period or periods within which, the price or prices at which and any terms
and conditions upon which Securities of the series may be so redeemed, pursuant to any sinking fund
or otherwise;



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



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



     (i) if other than the Principal amount thereof, the portion of the Principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof;



     (j) if other than the coin or currency in which the Securities of the series are denominated,
the coin or currency in which payment of the Principal of or interest on the Securities of the
series shall be payable or if the amount of payments of principal of and/or interest on the
Securities of the series may be
determined with reference to an index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such amounts shall be determined;



     (k) if other than the currency of the United States of America, the currency or currencies,
including composite currencies, in which payment of the Principal of and interest on the Securities
of the series shall be payable, and the



10









 







manner in which any such currencies shall be valued against
other currencies in which any other Securities shall be payable;



     (l) whether the Securities of the series or any portion thereof will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons) (and if so, whether such Securities will be
issued in temporary or permanent global form), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided herein, the terms upon which Unregistered
Securities of any series may be exchanged for Registered Securities of such series and vice versa;



     (m) whether the Securities of the series may be exchangeable for and/or convertible into the
common stock of the Company or any other security;



     (n) whether and under what circumstances the Company will pay additional amounts on the
Securities of the series held by a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional amounts;



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



     (p) any trustees, depositaries, authenticating or paying agents, transfer agents or the
registrar or any other agents with respect to the Securities of the series;



     (q) provisions, if any, for the defeasance of the Securities of the series (including
provisions permitting defeasance of less than all Securities of the series), which provisions may
be in addition to, in substitution for, or in modification of (or any combination of the foregoing)
the provisions of Article 8;



     (r) if the Securities of the series are issuable in whole or in part as one or more Registered
Global Securities or Unregistered Securities in global form,
the identity of the Depositary or common Depositary for such Registered Global Security or
Securities or Unregistered Securities in global form;



     (s) any other Events of Default or covenants with respect to the Securities of the series; and



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



11









 





     All Securities of any one series and coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to date and denomination,
except in the case of any Periodic Offering and except as may otherwise be provided by or pursuant
to the Board Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time and may be issued
from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution or in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and established from time to time prior
to the issuance thereof by procedures described in such Board Resolution or supplemental indenture.



     Unless otherwise expressly provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized with respect to such
series as increased.



     Section 2.04. Denomination and Date of Securities; Payments of Interest. The Securities of
each series shall be issuable as Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.03 or, if not so established with respect to Securities of
any series, in denominations of $1,000 and any integral multiple thereof. The Securities of each
series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with
such plan as the Officers of the Company executing the same may determine, as evidenced by their
execution thereof.



     Unless otherwise specified with respect to a series of Securities, each Security shall be
dated the date of its authentication. The Securities of each series shall bear interest, if any,
from the date, and such interest and shall be payable on the dates, established as contemplated by
Section 2.03.



     The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to the extent the Company shall
default in the payment of the interest due on such interest payment
date for such series, in which case the provisions of Section 2.13 shall apply. The term
“record date” as used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date specified as such in the
terms of the Registered Securities of such series established as contemplated by Section 2.03, or,
if no such date is so established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.



12









 





     Section 2.05. Registrar and Paying Agent; Agents Generally. The Company shall maintain an
office or agency where Securities may be presented for registration, registration of transfer or
for exchange (the “Registrar”) and an office or agency where Securities may be presented for
payment (the “Paying Agent”), which shall be in the Borough of Manhattan, The City of New York.
The Company shall cause the Registrar to keep a register of the Registered Securities and of their
registration, transfer and exchange (the “Security Register”). The Company may have one or more
additional Paying Agents or transfer agents with respect to any series.



     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture and the Trust
Indenture Act that relate to such Agent. The Company shall give prompt written notice to the
Trustee of the name and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The
Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no
such removal shall become effective until (i) the acceptance of an appointment by a successor Agent
to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i)
of this proviso. The Company or any affiliate of the Company may act as Paying Agent or Registrar;
provided that neither the Company nor an affiliate of the Company shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of this Indenture under Article
8.



     The Company initially appoints the Trustee as Registrar, Paying Agent and Authenticating
Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available to
the Trustee ten days prior to each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in the Security Register.



     Section 2.06. Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. New York City
time on each due date or, in the case of Unregistered Securities, 10:00 a.m. New York City time on
the Business Day prior to the due date, of any Principal or interest on any Securities, the Company
shall deposit
with the Paying Agent money in immediately available funds sufficient to pay such Principal or
interest. The Company shall require each Paying Agent other than the Trustee to agree in writing
that such Paying Agent shall hold in trust for the benefit of the Holders of such Securities or the
Trustee all money held by the Paying Agent for the payment of Principal of and interest on such
Securities and shall promptly notify the Trustee of any default by the Company in making any such
payment. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon



13









 







written request to a Paying Agent, require such Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the
Paying Agent shall have no further liability for the money so paid over to the Trustee. If the
Company or any affiliate of the Company acts as Paying Agent, it will, on or before each due date
of any Principal of or interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such Principal or interest so
becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as
provided in this Indenture, and will promptly notify the Trustee in writing of its action or
failure to act as required by this Section.



     Section 2.07. Transfer and Exchange. Unregistered Securities (except for any temporary
global Unregistered Securities) and coupons (except for coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.



     At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series and tenor having authorized denominations and an equal
aggregate Principal amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance with Section 2.05 and
upon payment, if the Company shall so require, of the charges hereinafter provided. If the
Securities of any series are issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.03, at the option of the Holder thereof, Unregistered Securities
of any series may be exchanged for Registered Securities of such series and tenor having authorized
denominations and an equal aggregate Principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and
original issue date are issued in more than one authorized denomination, except as otherwise
established pursuant to Section 2.03, such Unregistered Securities may be exchanged for
Unregistered Securities of such series and tenor
having authorized denominations and an equal aggregate Principal amount, upon surrender of
such Unregistered Securities to be exchanged at the agency of the Company that shall be maintained
for such purpose in accordance with Section 4.02, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so require, of the charges hereinafter
provided. Registered Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall



14









 







authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.



     Upon surrender for registration of transfer of any Registered Security of a series at the
agency of the Company that shall be maintained for that purpose in accordance with Section 2.05 and
upon payment, if the Company shall so require, of the charges hereinafter provided, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of like tenor and aggregate Principal amount.



     All Registered Securities presented for registration of transfer, exchange, redemption or
payment shall be duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or his
attorney duly authorized in writing.



     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 exchange or registration of transfer of
Securities. No service charge shall be made for any such transaction.



     Notwithstanding any other provision of this Section 2.07, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such successor Depositary.



     If at any time the Depositary for any Registered Global Securities of any series notifies the
Company that it is unwilling or unable to continue as Depositary for such Registered Global
Securities or if at any time the Depositary for such Registered Global Securities shall no longer
be eligible under applicable law, the Company shall appoint a successor Depositary eligible under
applicable law with respect to such Registered Global Securities. If a successor Depositary
eligible under applicable law for such Registered Global Securities is not
appointed by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company’s order for the authentication and delivery of definitive Registered Securities of such
series and tenor, will authenticate and deliver Registered Securities of such series and tenor, in
any authorized denominations, in an aggregate Principal amount equal to the Principal amount of
such Registered Global Securities, in exchange for such Registered Global Securities.



15









 





     The Company may at any time and in its sole discretion and subject to the procedures of the
Depositary determine that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event the Company will execute, and the Trustee, upon receipt
of the Company’s order for the authentication and delivery of definitive Registered Securities of
such series and tenor, will authenticate and deliver, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate Principal amount equal to the Principal
amount of such Registered Global Securities, in exchange for such Registered Global Securities.



     Any time the Registered Securities of any series are not in the form of Registered Global
Securities pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with
a reasonable supply of certificated Registered Securities without the legend required by Section
2.02 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated
and delivered pursuant to the terms of this Indenture.



     If established by the Company pursuant to Section 2.03 with respect to any Registered Global
Security, the Depositary for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,




     (a) to the Person specified by such Depositary new Registered Securities of the same
series and tenor, of any authorized denominations as requested by such Person, in an
aggregate Principal amount equal to and in exchange for such Person’s beneficial interest
in the Registered Global Security; and




     (b) to such Depositary a new Registered Global Security in a denomination equal to
the difference, if any, between the Principal amount of the surrendered Registered Global
Security and the aggregate Principal amount of Registered Securities authenticated and
delivered pursuant to clause (a) above.



     Registered Securities issued in exchange for a Registered Global Security pursuant to this
Section 2.07 shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons
in whose names such Securities are so registered.



     All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Company, evidencing the same debt, and entitled to the



16









 







same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.



     Notwithstanding anything herein or in the forms or terms of any Securities to the contrary,
none of the Company, the Trustee or any agent of the Company or the Trustee shall be required to
exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Company (such as, for example, the inability of the
Company to deduct from its income, as computed for Federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United States Federal income tax
laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an
Opinion of Counsel in determining such result.



     The Registrar shall not be required (i) to issue, authenticate, register the transfer of or
exchange Securities of any series for a period of 15 days before a selection of such Securities to
be redeemed or (ii) to register the transfer of or exchange any Security selected for redemption in
whole or in part.



     Section 2.08. Replacement Securities. If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver, in exchange for such mutilated Security or in exchange
for the Security to which a mutilated coupon appertains, a new Security of the same series and of
like tenor and Principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to the
Security to which such mutilated coupon appertains.



     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 or coupon and (ii) such security or indemnity as
may be required by them to save each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon 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 or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of
like tenor and Principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen coupon appertains.



     In case any such mutilated, destroyed, lost or stolen Security or coupon 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 or coupon (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee
such



17









 







security or indemnity as may be required by them to save each of them and any agent of any of
them harmless, and in the case of destruction, loss or theft, evidence satisfactory to the Company
and the Trustee and any agent of them of the destruction, loss or theft of such Security and the
ownership thereof; provided, however, that the Principal of and any interest on Unregistered
Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or
agency located outside the United States of America.



     Upon the issuance of any new Security under this Section, the Company may require 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, with its coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their coupons, if any, duly
issued hereunder.



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



     Section 2.09. Outstanding Securities. Securities outstanding at any time are all Securities
that have been authenticated by the Trustee except for those cancelled by it, those delivered to it
for cancellation, those described in this Section as not outstanding and those that have been
defeased pursuant to Section 8.05.



     If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a holder in due course.



     If the Paying Agent (other than the Company or an affiliate of the Company) holds on the
maturity date or any redemption date or date for repurchase of the Securities money sufficient to
pay Securities payable or to be redeemed or repurchased on that date, then on and after that date
such Securities cease to be outstanding and interest on them shall cease to accrue.



     A Security does not cease to be outstanding because the Company or one of its affiliates holds
such Security, provided, however, that, in determining whether the Holders of the requisite
Principal amount of the outstanding



18









 







Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company or any affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities as to which a Responsible Officer of the
Trustee has received written notice to be so owned shall be so disregarded. Any Securities so
owned which are pledged by the Company, or by any affiliate of the Company, as security for loans
or other obligations, otherwise than to another such affiliate of the Company, shall be deemed to
be outstanding, if the pledgee is entitled pursuant to the terms of its pledge agreement and is
free to exercise in its or his discretion the right to vote such securities, uncontrolled by the
Company or by any such affiliate.



     Section 2.10. Temporary Securities. Until definitive Securities of any series are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary Securities of such
series. Temporary Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities, as evidenced by
their execution of such temporary Securities. If temporary Securities of any series are issued,
the Company will cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive



     Securities of any series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such temporary Securities at the
office or agency of the Company designated for such purpose pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of
any series the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like Principal amount of definitive Securities of such series and tenor and authorized
denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series.



     Section 2.11. Cancellation. The Company at any time may 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 for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar, any transfer agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee shall cancel and dispose of in
accordance with its customary procedures all Securities surrendered for transfer, exchange, payment
or cancellation and shall deliver a certificate of disposition to the Company. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to the Trustee for
cancellation.



19









 





     Section 2.12. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” and
“CINS” numbers (if then generally in use), and the Trustee shall use CUSIP numbers or CINS numbers,
as the case may be, in notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.



     Section 2.13. Defaulted Interest. If the Company defaults in a payment of interest on the
Registered Securities, it shall pay, or shall deposit with the Paying Agent money in immediately
available funds sufficient to pay, the defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest (as may be specified in the terms thereof, established pursuant
to Section 2.03) to the Persons who are Holders on a subsequent special record date, which shall
mean the 15th day next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before such special record
date, the Company shall mail to each Holder of such Registered Securities and to the Trustee a
notice that states the special record date, the payment date and the amount of defaulted interest
to be paid.



     Section 2.14. Series May Include Tranches. A series of Securities may include one or more
tranches (each a “tranche”) of Securities, including Securities issued in a Periodic Offering. The
Securities of different tranches may have one or more different terms, including authentication
dates and public offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price. Notwithstanding any
other provision of this Indenture, with respect to Sections 2.02 (other than the fourth, sixth and
seventh paragraphs thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through
6.14, 8.01 through 8.07, 9.02 and Section 10.07, if any series of Securities includes more than one
tranche, all provisions of such sections applicable to any series of Securities shall be deemed
equally applicable to each tranche of any series of Securities in the same manner as though
originally designated a series unless otherwise provided with respect to such series or tranche
pursuant to Section 2.03. In particular, and without limiting the scope of
the next preceding sentence, any of the provisions of such sections which provide for or
permit action to be taken with respect to a series of Securities shall also be deemed to provide
for and permit such action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied thereby), even if no
comparable action is taken with respect to Securities in the remaining tranches of that series.



ARTICLE 3

Redemption




     Section 3.01. Applicability of Article. The provisions of this Article shall be applicable
to the Securities of any series which are redeemable before their



20









 







maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as contemplated by
Section 2.03 for Securities of such series.



     Section 3.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders
of Registered Securities of any series to be redeemed as a whole or in part at the option of the
Company shall be given by mailing notice of such redemption by first class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of such series at their last addresses as they shall appear upon the
registry books. Notice of redemption to the Holders of Unregistered Securities of any series to be
redeemed as a whole or in part who have filed their names and addresses with the Trustee pursuant
to Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more than 60 days prior
to the date fixed for redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Notice of redemption to all other Holders
of Unregistered Securities of any series to be redeemed as a whole or in part shall be published in
an Authorized Newspaper in The City of New York or with respect to any Security the interest on
which is based on the offered quotations in the interbank Eurodollar market for dollar deposits in
an Authorized Newspaper in London, in each case, once in each of three successive calendar weeks,
the first publication to be not less than 30 days nor more than 60 days prior to the date fixed for
redemption. Any notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.



     The notice of redemption to each such Holder shall specify the Principal amount of each
Security of such series held by such Holder to be redeemed, the CUSIP numbers of the Securities to
be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the
manner of calculation thereof, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities with coupons attached
thereto, of all coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice
of redemption shall state the portion of the Principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption, upon



21









 







surrender of such Security, a new
Security or Securities of such series and tenor in Principal amount equal to the unredeemed portion
thereof will be issued.



     The notice of redemption of Securities of any series to be redeemed at the option 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.



     On or before 10:00 a.m. New York City time on the redemption date or, in the case of
Unregistered Securities, on or before 10:00 a.m. New York City time on the Business Day prior to
the redemption date specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is
acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.06)
an amount of money sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If all of the outstanding Securities of a series are to be redeemed,
the Company will deliver to the Trustee at least 10 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph of this Section 3.02 (or such
shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating that all
such Securities are to be redeemed. If less than all the outstanding Securities of a series are to
be redeemed, the Company will deliver to the Trustee at least 15 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the first paragraph of this Section
3.02 (or such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate
stating the aggregate Principal amount of such Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of
the Company which is subject to a condition specified in the terms of such Securities or elsewhere
in this Indenture, the Company shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing
compliance with such restriction or condition.



     If less than all the Securities of a series are to be redeemed, the Trustee shall select, pro
rata, by lot or in such manner as it shall deem appropriate and fair, Securities of such series to
be redeemed in whole or in part. Securities may be redeemed in part in Principal amounts equal to
authorized denominations for Securities of such series. The Trustee shall promptly notify the
Company in writing of the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the Principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the Principal amount of such Security
which has been or is to be redeemed.



22









 





     Section 3.03. Payment Of Securities Called For Redemption. If notice of redemption has been
given as above provided, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
such date (unless the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to such date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.12 and 8.02, such
Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
under this Indenture, and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of payment specified in
said notice, together with all coupons, if any, appertaining thereto maturing after the date fixed
for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided that payment of interest becoming due on or prior to the date fixed
for redemption shall be payable in the case of Securities with coupons attached thereto, to the
Holders of the coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on the relevant record
date subject to the terms and provisions of Sections 2.04 and 2.13 hereof.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.



     If any Security with coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant coupons maturing after the date fixed for redemption, the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.



     Upon presentation of any Security of any series redeemed in part only, 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 such series and tenor (with any
unmatured coupons attached), of authorized denominations, in Principal amount equal to the
unredeemed portion of the Security so presented.



     Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption.
Securities shall be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a



23









 







written statement signed by an authorized officer of
the Company and delivered to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Company or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company.



     Section 3.05. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms
of the Securities of any series is herein referred to as an “optional sinking fund payment”. The
date on which a sinking fund payment is to be made is herein referred to as the “sinking fund
payment date”.



     In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities
of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by the Company at the
option of the Company pursuant to the terms of such Securities or through any optional sinking fund
payment. Securities so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.



     On or before the sixtieth day next preceding each sinking fund payment date for any series, or
such shorter period as shall be acceptable to the Trustee, the Company will deliver to the Trustee
an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of specified Securities of
such series and the basis for such credit, (b) stating that none of the specified Securities of
such series has theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company intends to exercise its
right to make an optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Company intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Company to be entitled to credit therefor
as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.11 to the Trustee with such Officers’ Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers’ Certificate shall be



24









 







irrevocable
and upon its receipt by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of Securities therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any such sixtieth day,
to deliver such Officer’s Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section.



     If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking fund redemption
price thereof together with accrued interest thereon to the date fixed for redemption. If such
amount shall be $50,000 (or such lesser sum) or less and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 (or such lesser sum) is available. The
Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund
payment date a sufficient Principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are identified by
registration
and certificate number in an Officers’ Certificate delivered to the Trustee at least 60 days
prior to the sinking fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically identified in such
Officers’ Certificate as directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the manner provided in
Section 3.02 (and with the effect provided in Section 3.03) for the redemption of Securities of
such series in part at the option of the Company. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular Securities of such
series shall be applied, together with other moneys,



25









 







if necessary, sufficient for the purpose, to the payment of the Principal of, and interest on,
the Securities of such series at maturity.



     On or before 10:00 a.m. New York City time on each sinking fund payment date or, in the case
of Unregistered Securities, 10:00 a.m. New York City time on the Business Day prior to the sinking
fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on
the next following sinking fund payment date.



     The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such Default or Event of Default, be deemed to have been collected under Article
6 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 6.04 or the Default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.



ARTICLE 4

Covenants




     Section 4.01. Payment of Securities. The Company shall pay the Principal of and interest on
the Securities on the dates and in the manner provided in the Securities and this Indenture. The
interest on Securities with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they severally mature.
The interest on any temporary Unregistered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be paid, as to the installments of interest
evidenced by coupons attached thereto, if any, only upon presentation and surrender thereof, and,
as to the other installments of interest, if any, only upon presentation of such Unregistered
Securities for notation thereon of the payment of such interest. The interest on Registered
Securities (together with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof (subject to Section 2.04) and at the option of the
Company may be paid by mailing checks




26











 




for such interest payable to or upon the written order of such Holders at their last addresses as
they appear on the Security Register of the Company.




     Notwithstanding any provisions of this Indenture and the Securities of any series to the
contrary, if the Company and a Holder of any Registered Security so agree, payments of interest on,
and any portion of the Principal of, such Holder’s Registered Security (other than interest payable
at maturity or on any redemption or repayment date or the final payment of Principal on such
Security) shall be made by the Paying Agent, upon receipt from the Company of immediately available
funds by 11:00 A.M., New York City time (or such other time as may be agreed to between the Company
and the Paying Agent), directly to the Holder of such Security (by Federal funds wire transfer or
otherwise) if the Holder has delivered written instructions to the Trustee 15 days prior to such
payment date requesting that such payment will be so made and designating the bank account to which
such payments shall be so made and in the case of payments of Principal, surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same Principal amount as the
unredeemed Principal amount of the Securities surrendered. The Trustee shall be entitled to rely
on the last instruction delivered by the Holder pursuant to this Section 4.01 unless a new
instruction is delivered 15 days prior to a payment date. The Company will indemnify and hold each
of the Trustee and any Paying Agent harmless against any loss, liability or expense (including
attorneys’ fees) resulting from any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any payment in accordance with any such
agreement.



     The Company shall pay interest on overdue Principal, and interest on overdue installments of
interest, to the extent lawful, at the rate per annum specified in the Securities.



     Section 4.02. Maintenance of Office or Agency. The Company will maintain in the United
States of America, an office or agency where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company hereby
initially designates the Company’s Office of Investor Relations, Western Refining, 123 West Mills
Avenue, Suite 200, El Paso, Texas 79901, as such office or agency of the Company. The Company will
give prompt written notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee set forth in
Section 10.02.



     The Company will maintain one or more agencies in a city or cities located outside the United
States of America (including any city in which such an agency is required to be maintained under
the rules of any stock exchange on which the Securities of any series are listed) where the
Unregistered Securities, if



27









 







any, of each series and coupons, if any, appertaining thereto may be presented for payment.
No payment on any Unregistered Security or coupon will be made upon presentation of such
Unregistered Security or coupon at an agency of the Company within the United States of America nor
will any payment be made by transfer to an account in, or by mail to an address in, the United
States of America unless, pursuant to applicable United States laws and regulations then in effect,
such payment can be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars (“Dollars”) at each agency maintained by the
Company outside the United States of America for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by exchange controls or other similar
restrictions, payments in Dollars of Unregistered Securities of any series and coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Company maintained in the
United States of America.



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



     Section 4.03. Securityholders’ Lists. The Company will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of
the holders of the Securities pursuant to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date for the payment of semi-annual interest
on the Securities, as hereinabove specified, as of such record date, and (b) at such other times as
the Trustee may request in writing, within thirty days after receipt by the Company of any such
request as of a date not more than 15 days prior to the time such information is furnished.



     Section 4.04. Certificate to Trustee. The Company will furnish to the Trustee annually, on
or before a date not more than four months after the end of its fiscal year (which, on the date
hereof, is a calendar year), a brief certificate (which need not contain the statements required by
Section 10.04) from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or requirement of notice
provided under this Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.



     Section 4.05. Reports by the Company. The Company covenants to file with the Trustee, within
15 days after the Company files the same with the Commission, copies of the annual reports and of
the information, documents, and



28









 







other reports which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act.



     Section 4.06. Additional Amounts. If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first interest payment date with respect to that
series of Securities and at least 10 days prior to each date of payment of Principal of or interest
on the Securities of that series if there has been a change with respect to the matters set forth
in the below-mentioned Officers’ Certificate, the Company shall furnish to the Trustee and the
principal paying agent, if other than the Trustee, an Officers’ Certificate instructing the Trustee
and such paying agent whether such payment of Principal of or interest on the Securities of that
series shall be made to Holders of the Securities of that series without withholding or deduction
for or on account of any tax, assessment or other governmental charge described in the Securities
of that series. If any such withholding or deduction shall be required, then such Officers’
Certificate shall specify by country the amount, if any, required to be withheld or deducted on
such payments to such Holders and shall certify the fact that additional amounts will be payable
and the amounts so payable to each Holder, and the Company shall pay to the Trustee or such paying
agent the additional amounts required to be paid by this Section. The Company covenants to
indemnify the Trustee and any paying agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in reliance on any Officers’
Certificate furnished pursuant to this Section.



     Whenever in this Indenture there is mentioned, in any context, the payment of the Principal of
or interest or any other amounts on, or in respect of, any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided by the terms of
such series established hereby or pursuant hereto to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof pursuant to such terms, and express
mention of the payment of additional amounts (if applicable) in any provision hereof shall not be
construed as excluding the payment of additional amounts in those provisions hereof where such
express mention is not made.



ARTICLE 5

Successor Corporation




     Section 5.01. When Company May Merge, Etc. The Company shall not consolidate or combine
with, merge with or into, directly or indirectly, or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets to any Person or Persons
in a single transaction or through a series of transactions unless:



29









 






	 	a)	 	the Company shall be the continuing Person or, if the Company is not the
continuing Person, the resulting, surviving or transferee Person (the “Surviving
Entity”) is a company organized and existing under the laws of the United States or
any State or territory;
	 
	 	b)	 	the Surviving Entity shall expressly assume all of the Company’s
obligations under the Securities and this Indenture, and shall, if required by law to
effectuate the assumption, execute supplemental indentures which shall be delivered
to the Trustee and shall be in form and substance reasonably satisfactory to the
Trustee;
	 
	 	c)	 	immediately after giving effect to such transaction or series of
transactions on a pro forma basis, no Default has occurred and is continuing; and
	 
	 	d)	 	the Company or the Surviving Entity shall have delivered to the Trustee an
Officers’ Certificate and Opinion of Counsel stating that (x) the transaction or
series of transactions and such supplemental indenture, if any, complies with this
Section 5.01, (y) such supplemental indenture (if any) constitutes the legal, valid
and binding obligation of the Company and such Surviving Entity enforceable against
such Surviving Entity in accordance with its terms, subject to customary exceptions
and (z) all conditions precedent in this Indenture relating to the transaction or
series of transactions have been satisfied.





     Section 5.02. Successor Substituted. Upon any consolidation, combination or merger, or any
sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of
the property and assets of the Company in accordance with Section 5.01 of this Indenture, the
Surviving Entity 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 Surviving Entity had been
named as the Company herein and thereafter the predecessor Person, except in the case of (x) a
lease or (y) any sale, assignment, conveyance, transfer, lease or other disposition to one or more
Subsidiaries of the Company, shall be discharged from all obligations and covenants under this
Indenture and the Securities.



ARTICLE 6

Default and Remedies




     Section 6.01. Events of Default. An “Event of Default” shall occur with respect to the
Securities of any series if:



     (a) the Company defaults in the payment of the Principal of any Security of such series when
the same becomes due and payable at maturity, upon



30









 







acceleration, redemption or mandatory repurchase, including as a sinking fund installment, or
otherwise;



     (b) the Company defaults in the payment of interest on any Security of such series when the
same becomes due and payable, and such default continues for a period of 30 days;



     (c) the Company defaults in the performance of or breaches any other covenant or agreement of
the Company in this Indenture with respect to any Security of such series or in the Securities of
such series (other than a covenant or agreement in respect of which non compliance by the Company
would otherwise be an Event of Default) and such default or breach continues for a period of 30
consecutive days or more after written notice to the Company by the Trustee or to the Company and
the Trustee by the Holders of 25% or more in aggregate Principal amount of the Securities of all
series affected thereby specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder;



     (d) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days;



     (e) the Company (i) commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company
or for all or substantially all of the property and assets of the Company or (iii) effects any
general assignment for the benefit of creditors; or



     (f) any other Event of Default established pursuant to Section 2.03 with respect to the
Securities of such series occurs.



     Section 6.02. Acceleration. (a) If an Event of Default other than as described in clauses
(d) or (e) of Section 6.01 with respect to the Securities of any series then outstanding occurs and
is continuing, then, and in each and every such case, except for any series of Securities the
Principal of which shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate Principal amount of the Securities of such series then outstanding
hereunder by notice in writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire Principal (or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the Principal amount as may be specified in the terms of such series
established pursuant to Section



31









 




2.03) of all Securities of such series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become immediately due and
payable.




     (b) If an Event of Default described in clause (d) or (e) of Section 6.01 occurs and is
continuing, then the Principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the Principal as may be specified in the terms thereof established
pursuant to Section 2.03) of all the Securities then outstanding and interest accrued thereon, if
any, shall be and become immediately due and payable, without any declaration, notice or other
action by any Holder or the Trustee, to the full extent permitted by applicable law.



     The foregoing provisions, however, are subject to the condition that if, at any time after the
Principal (or, if the Securities are Original Issue Discount Securities, such portion of the
Principal as may be specified in the terms thereof established pursuant to Section 2.03) of the
Securities of any series (or of all the Securities, as the case may be) shall have been so declared
or become due and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest upon all the
Securities of each such series (or of all the Securities, as the case may be) and the Principal of
any and all Securities of each such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such Principal and, to the
extent that payment of such interest is enforceable under applicable law, on overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of each such series to the date of such
payment or deposit) and such amount as shall be sufficient to cover all amounts owing the Trustee
under Section 7.07, and if any and all Events of Default under the Indenture, other than the
non-payment of the Principal of and interest on Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in
every such case the Holders of a majority in aggregate Principal amount of all the then outstanding
Securities of all such series that have been accelerated (voting as a single class), by written
notice to the Company and to the Trustee, may waive all defaults with respect to all such series
(or with respect to all the Securities, as the case may be) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall extend to or shall
affect any subsequent default or shall impair any right consequent thereon.



     For all purposes under this Indenture, if a portion of the Principal of any Original Issue
Discount Securities shall have been accelerated and declared or become due and payable pursuant to
the provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the Principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the Principal thereof as shall be due



32









 







and payable as a result of such acceleration, and payment of such portion of the Principal
thereof as shall be due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.



     Section 6.03. Other Remedies. If a payment default or an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee may pursue, in its own name or
as trustee of an express trust, any available remedy by proceeding at law or in equity to collect
the payment of Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding.



     Section 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and 9.02, the Holders
of at least a majority in Principal amount (or, if the Securities are Original Issue Discount
Securities, such portion of the Principal as is then accelerable under Section 6.02) of the
outstanding Securities of all series affected (voting as a single class), by notice to the Trustee,
may waive an existing Default or Event of Default with respect to the Securities of such series and
its consequences, except a Default in the payment of Principal of or interest on any Security as
specified in clauses (a) or (b) of Section 6.01 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the Holder of each outstanding
Security affected. Upon any such waiver, such Default shall cease to exist, and any Event of
Default with respect to the Securities of such series 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 Event of Default or impair any right consequent thereto.



     Section 6.05. Control by Majority. Subject to Sections 7.01 and 7.02(e), the Holders of at
least a majority in aggregate Principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the Principal as is then accelerable under Section 6.02) of the
outstanding Securities of all series affected (voting as a single class) may direct the time,
method and place of conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of such series by this
Indenture; provided, that the Trustee may refuse to follow any direction that conflicts with law or
this Indenture, that may involve the Trustee in personal liability or that the Trustee determines
in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such
direction; and provided further, that the Trustee may take any other action it deems proper that is
not inconsistent with any directions received from Holders of Securities pursuant to this Section
6.05.



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     Section 6.06. Limitation on Suits. No Holder of any Security of any series may institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Securities of such series,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:




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




     (b) the Holders of at least 25% in aggregate Principal amount of outstanding
Securities of all such series affected shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as Trustee
hereunder;




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




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




     (e) during such 60-day period, the Holders of a majority in aggregate Principal
amount of the outstanding Securities of all such affected series have not given the
Trustee a direction that is inconsistent with such written request.



     A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.



     Section 6.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder of a Security to receive payment of Principal of or
interest, if any, on such Holder’s Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.



     Section 6.08. Collection Suit by Trustee. If an Event of Default with respect to the
Securities of any series in payment of Principal or interest specified in clause (a) or (b) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount (or such portion thereof as
specified in the terms established pursuant to Section 2.03 of Original Issue Discount Securities)
of Principal of, and accrued interest remaining unpaid on, together with interest on overdue
Principal of, and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at the rate or Yield to
Maturity (in the case of Original Issue Discount



34









 







Securities) specified in such Securities, and such further amount as shall be sufficient to
cover all amounts owing the Trustee under Section 7.07.



     Section 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts due the Trustee under Section 7.07) and the Holders
allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered to collect and
receive any moneys, securities or other property payable or deliverable upon conversion or exchange
of the Securities or upon 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 to it under Section 7.07. Nothing herein contained shall be deemed
to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or 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 6.10. Application of Proceeds. Any moneys collected by the Trustee pursuant to this
Article in respect of the Securities of any series shall be applied in the following order at the
date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of
Principal or interest, upon presentation of the several Securities and coupons appertaining to such
Securities in respect of which moneys have been collected and noting thereon the payment, or
issuing Securities of such series and tenor in reduced Principal amounts in exchange for the
presented Securities of such series and tenor if only partially paid, or upon surrender thereof if
fully paid:




     FIRST: To the payment of all amounts due the Trustee under Section 7.07 applicable
to the Securities of such series in respect of which moneys have been collected;




     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 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 the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;



35









 






     THIRD: In case the Principal 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 and interest, with interest upon the overdue Principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified 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 and interest or
Yield to Maturity, without preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity 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 or Yield to Maturity; and




     FOURTH: To the payment of the remainder, if any, to the Company or any other person
lawfully entitled thereto.



     Section 6.11. Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former positions hereunder and
thereafter all rights and remedies of the Company, Trustee and the Holders shall continue as though
no such proceeding had been instituted.



     Section 6.12. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, in either case in respect to the Securities of any series, a court may require any party
litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit,
and the court may assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant (other than the Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not apply to a suit by a
Holder pursuant to Section 6.07, a suit instituted by the Trustee or a suit by Holders of more than
10% in Principal amount of the outstanding Securities of such series.



     Section 6.13. Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities in Section
2.08, 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



36









 







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 6.14. Delay or Omission not Waiver. No delay or omission of the Trustee or of any
Holder 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 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.



ARTICLE 7

Trustee




     Section 7.01. General. The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act and as set forth herein. 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, unless it receives indemnity satisfactory to it against any loss, liability
or expense. 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 Article 7.



     Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a)
through (d):




     (a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, Officers’ Certificate, Opinion of Counsel (or both),
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 person or persons. The
Trustee need not investigate any fact or matter stated in the document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit;




     (b) before the Trustee acts or refrains from acting, it may require an Officers’
Certificate and/or an Opinion of Counsel, which shall conform to Section 10.04 and shall
cover such other matters as the Trustee may reasonably request. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on such
certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the



37









 







administration of the trusts of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering or omitting
any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate
delivered to the Trustee, and such certificate, in the absence of negligence or bad faith
on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith thereof;




     (c) the Trustee may act through its attorneys and agents not regularly in its employ
and shall not be responsible for the misconduct or negligence of any agent or attorney
appointed with due care;




     (d) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;




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




     (f) the Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within its rights or powers or for any action
it takes or omits to take in accordance with the direction of the Holders in accordance
with Section 6.05 relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture;




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




     (h) prior to the occurrence of an Event of Default hereunder and after the curing or
waiving of all Events of Default, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, Officers’ Certificate,
Opinion of Counsel,



38









 







Board Resolution, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders of not less than a majority
in aggregate Principal amount of the Securities of all series affected then outstanding;
provided that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to proceeding.



     Section 7.03. Individual Rights of Trustee. The Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and
311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following terms shall
mean:



     (a) “cash transaction” means any transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand; and



     (b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.



     Section 7.04. Trustee’s Disclaimer. The recitals contained herein and in the Securities
(except the Trustee’s certificate of authentication) shall be taken as statements of the Company
and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same.
Neither the Trustee nor any of its agents (a) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (b) shall be accountable for the Company’s use or
application of the proceeds from the Securities.



     Section 7.05. Notice of Default. If any Default with respect to the Securities of any series
occurs and is continuing and if such Default is known to the actual knowledge of a Responsible
Officer with the Corporate Trust



39









 







Department of the Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default within 90 days after it occurs (a) if any Unregistered Securities of such
series are then outstanding, to the Holders thereof, by publication at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London and (b) to all Holders of Securities of such series in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, unless such Default shall have been
cured or waived before the mailing or publication of such notice; provided, however, that, except
in the case of a Default in the payment of the Principal of or interest on any Security, the
Trustee shall be protected in withholding such notice if the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders.



     Section 7.06. Reports by Trustee to Holders. The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15
following the date of 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 when any Securities are listed on any
stock exchange.



     Section 7.07. Compensation and Indemnity. The Company shall pay to the Trustee such
compensation as shall be agreed upon in writing from time to time for its services. The
compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an
express trust. The Company shall reimburse the Trustee and any predecessor Trustee upon request
for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee or such predecessor Trustee. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s or such predecessor Trustee’s agents, counsel and other persons not
regularly in their employ.



     The Company shall indemnify the Trustee and any predecessor Trustee for, and hold them
harmless against, any loss or liability or expense incurred by them without negligence or bad faith
on their part arising out of or in connection with the acceptance or administration of this
Indenture and the Securities or the issuance of the Securities or of series thereof or the trusts
hereunder and the performance of duties under this Indenture and the Securities, including the
costs and expenses of defending themselves against or investigating any claim or liability and of
complying with any process served upon them or any of their officers in connection with the
exercise or performance of any of their powers or duties under this Indenture and the Securities.



40









 





     To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, in its
capacity as Trustee, except money or property held in trust to pay Principal of, and interest on
particular Securities.



     The obligations of the Company under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or termination of this
Indenture under bankruptcy law. Such additional indebtedness shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or coupons, and the
Securities are hereby subordinated to such senior claim. Without prejudice to any other rights
available to the Trustee under applicable law, if the Trustee renders services and incurs expenses
following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties hereto
and the holders by their acceptance of the Securities hereby agree that such expenses are intended
to constitute expenses of administration under any bankruptcy law.



     Section 7.08. Replacement of Trustee. A resignation or removal of the Trustee as Trustee
with respect to the Securities of any series and appointment of a successor Trustee as Trustee with
respect to the Securities of any series shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.



     The Trustee may resign as Trustee with respect to the Securities of any series at any time by
so notifying the Company in writing. The Holders of a majority in Principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with respect to the
Securities of such series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may remove the Trustee
as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible
under Section 7.11 of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.



     If the Trustee resigns or is removed as Trustee with respect to the Securities of any series,
or if a vacancy exists in the office of Trustee with respect to the Securities of any series for
any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within
one year after the successor Trustee takes office, the Holders of a majority in Principal amount of
the outstanding Securities of such series may appoint a successor Trustee in respect of such
Securities to replace the successor Trustee appointed by the Company. If the successor Trustee
with respect to the Securities of any series does not deliver its written acceptance required by
Section 7.09 within 30 days after the retiring



41









 







Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority
in Principal amount of the outstanding Securities of such series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect thereto.



     The Company shall give notice of any resignation and any removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee in respect of the
Securities of such series to all Holders of Securities of such series. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.



     Notwithstanding replacement of the Trustee with respect to the Securities of any series
pursuant to this Section 7.08 and Section 7.09, the Company’s obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.



     Section 7.09. 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 and subject to the lien provided for in Section 7.07, 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



42









 







hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.



     Upon request of any such successor Trustee, the Company 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 eligible under this Article and qualified under Section 310(b) of the
Trust Indenture Act.



     Section 7.10. Successor Trustee By Merger, Etc. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor Trustee with the same
effect as if the successor Trustee had been named as the Trustee herein.



     Section 7.11. Eligibility. This Indenture shall always have a Trustee who satisfies the
requirements of Trust Indenture Act Section 310(a). The Trustee shall have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published annual report of
condition.



     Section 7.12. Money Held in Trust. The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent required by law and except
for money held in trust under Article 8 of this Indenture.



ARTICLE 8

Satisfaction and Discharge of Indenture; Unclaimed Moneys




     Section 8.01. Satisfaction and Discharge of Indenture. If at any time (a)(i) all Securities
of any series issued that have been authenticated and delivered have been delivered by the Company
to the Trustee for cancellation (other than Securities of such series which have been destroyed,
lost or stolen and which have



43









 







been replaced or paid as provided in Section 2.08); or (ii) all the Securities of any series
issued that have not been delivered by the Company to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within one year or are to
be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by such Trustee in the Company’s name and at the Company’s expense,
the Company shall have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 8.04) or U.S. Government Obligations, maturing as to principal
and interest in such amounts and at such times as will insure (without consideration of the
reinvestment of such interest) the availability of cash, or a combination thereof, sufficient to
pay at maturity or upon redemption all Securities of such series (other than any Securities of such
series which shall have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08) not theretofore delivered to the Trustee for cancellation, including
Principal and interest due or to become due on or prior to such date of maturity or redemption as
the case may be; (b) the Company has paid or caused to be paid all other sums then due and payable
under this Indenture; and (c) the Company has delivered to the Trustee an Officers’ Certificate and
an Opinion of Counsel, each stating that all conditions precedent under this Indenture relating to
the satisfaction and discharge of this Indenture pursuant to this Section 8.01 have been complied
with, then this Indenture shall cease to be of further effect with respect to Securities of such
series (except as to (i) rights of registration of transfer and exchange of securities of such
series, and the Company’s right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of holders to receive payments of
Principal thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder and (v) the rights of the
Securityholders of such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them), and the Trustee, on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series; provided that the rights of Holders of the Securities
to receive amounts in respect of Principal of and interest on the Securities held by them shall not
be delayed longer than required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Company agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.



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     Section 8.02. Application by Trustee of Funds Deposited for Payment of Securities. Subject
to Section 8.04, all moneys (including U.S. Government Obligations and the proceeds thereof)
deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06 shall be held in
trust and applied by it to the payment, either directly or through any paying agent to the Holders
of the particular Securities of such series for the payment or redemption of which such moneys have
been deposited with the Trustee, of all sums due and to become due thereon for Principal and
interest; but such money need not be segregated from other funds except to the extent required by
law.



     Section 8.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction
and discharge of this Indenture with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.



     Section 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any
moneys deposited with or paid to the Trustee or any paying agent for the payment of the Principal
of or interest on any Security of any series and not applied but remaining unclaimed for two years
after the date upon which such Principal or interest shall have become due and payable, shall, upon
the written request of the Company and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the Company by the Trustee
for such series or such paying agent, and the Holder of the Security of such series shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Company for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.



     Section 8.05. Defeasance and Discharge of Indenture. The Company shall be deemed to have
paid and shall be discharged from any and all obligations in respect of the Securities of any
series, on the 123rd day after the deposit referred to in clause (i) hereof has been
made, and the provisions of this Indenture shall no longer be in effect with respect to the
Securities of such series (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except as to: (a) rights of Holders of the Securities of such
series to receive payments of Principal thereof, premium thereto, and interest thereon, upon the
original stated due dates therefor, (b) the Company’s obligations with respect to the issuance of
temporary Securities and the registration of transfer with respect to the Securities of such
series, the Company’s right of optional redemption, substitution of mutilated, defaced, destroyed,
lost or stolen Securities of such series and the maintenance an office or agency for payment for
security payments held in trust pursuant to clause (i) hereof, (c) the rights, obligations and
immunities of the Trustee hereunder, and (d) the defeasance provisions contained



45









 







in Article 8 of this Indenture; provided that the following conditions shall have been
satisfied:




     (i) with reference to this Section 8.05 the Company irrevocably has deposited or
caused to be deposited with the Trustee (or another qualifying trustee satisfying the
requirements of Section 7.11) as trust funds in trust, for the purposes of making the
following payments, specifically pledged as security for, and dedicated solely to, the
benefits of the Holders of the Securities of such series, (A) money in an amount, (B) U.S.
Government Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than one day before the due
date of any payment referred to in subclause (x) or (y) of this clause (i), or (C) a
combination thereof, in each case sufficient, in the written opinion of an internationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without consideration of
reinvestment and after payment of all federal, state and local taxes or other charges and
assessments in respect thereof, and which shall be applied by the Trustee to pay and
discharge (x) all of the Principal of, premium, if any, and each installment of interest
on the outstanding Securities of such series on the maturity or due dates thereof or if
the Company has made irrevocable arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee, the redemption date, as the case may be, and (y)
any mandatory sinking fund payments or analogous payments applicable to the Securities of
such series on the day on which such payments are due and payable in accordance with the
terms of Securities of such series and the Indenture with respect to the Securities of
such series;




     (ii) the Company has delivered to the Trustee (A) an Opinion of Counsel to the effect
that, under then applicable U.S. federal income tax law, Holders of Securities of such
series will not recognize gain or loss for U.S. federal income tax purposes as a result of
the Company’s exercise of its option under this Section 8.05 and will be subject to U.S.
federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not occurred, and
(B) an Opinion of Counsel to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and after the passage of 123 days following the
deposit, the trust fund will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally;




     (iii) no Default under either clause Section 6.01(d) or clause Section 6.01(e) of
Section 6.01 shall have occurred and be continuing at any time on or before the
123rd day after the date of such deposit, it being



46









 







understood that the condition in this clause (iii) shall not be deemed to be
satisfied until after such 123rd day;




     (iv) if at such time the Securities of such series are listed on a national
securities exchange, the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Securities of such series will not be delisted as a result of such
deposit, defeasance and discharge;




     (v) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance and
discharge under this Section 8.05 have been complied with; and




     (vi) if the Securities of such series are to be redeemed prior to the final maturity
thereof (other than from mandatory sinking fund payments or analogous payments), notice of
such redemption shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made.



     Section 8.06. Defeasance of Certain Obligations. The Company may omit to comply with any
term, provision or condition set forth in, and this Indenture will no longer be in effect with
respect to, any covenant established pursuant to Section 2.03(s) and clause (c) and clause (f)
(with respect to any covenants established pursuant to Section 2.03(s)) of Section 6.01 shall be
deemed not to constitute a Default or an Event of Default with respect to Securities of any series,
if:



     (a) with reference to this Section 8.06, the Company has irrevocably deposited or caused to be
deposited with the Trustee (or another qualifying trustee satisfying the requirements of Section
7.11) as trust funds in trust, for the purposes of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefits of the Holders of the Securities of
such series, (i) money in an amount, (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in subclause (x) or (y) of this clause
(a), or (iii) a combination thereof, in each case sufficient, in the written opinion of an
internationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, without consideration of
reinvestment and after payment of all federal, state and local taxes or other charges and
assessments in respect thereof, and which shall be applied by the Trustee to pay and discharge (x)
all of the Principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the maturity or due dates thereof or if the Company has made
irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee, the redemption date, as the case may be, and (y) any mandatory sinking fund payments or
analogous payments applicable to the Securities of such series on the



47









 







day on which such payments are due and payable in accordance with the terms of the Securities
of such series and the Indenture with respect to the Securities of such series;



     (b) the Company has delivered to the Trustee (i) an Opinion of Counsel to the effect that
Holders of Securities of such series will not recognize gain or loss for U.S. federal income tax
purposes as a result of the Company’s exercise of its option under this Section 8.06 and will be
subject to U.S. federal income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit and defeasance had not occurred and (ii) an Opinion of
Counsel to the effect that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the deposit, the trust fund will
not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors’ rights generally;



     (c) no Default with respect to the outstanding Securities of such series shall have occurred
and be continuing at the time of such deposit immediately after giving effect to such deposit;



     (d) if at such time the Securities of such series are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect that the
Securities of such series will not be delisted as a result of such deposit, defeasance and
discharge;



     (e) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance under this Section have been
complied with; and



     (f) if the Securities of such series are to be redeemed prior to the final maturity thereof
(other than from mandatory sinking fund payments or analogous payments), notice of such redemption
shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee shall have been made.



     Section 8.07. Reinstatement. If the Trustee or paying agent is unable to apply any monies or
U.S. Government Obligations in accordance with Article 8 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company’s obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred pursuant to this
Article until such time as the Trustee or paying agent is permitted to apply all such monies or
U.S. Government Obligations in accordance with Article 8; provided, however, that if the Company
has made any payment of Principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the monies or U.S. Government Obligations held by the Trustee or paying
agent.



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     Section 8.08. Indemnity. The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.08 and Section 8.02, the “Trustee”) against
any tax, fee or other charge, imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.01, 8.05 or 8.06 or the principal or interest received in respect
thereof other than any such tax, fee or other charge which by law is for the account of the Holders
of the Securities and any coupons appertaining thereto.



     Section 8.09. Excess Funds. Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of
the Company, any money or U.S. Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a
nationally recognized firm of Independent Public Accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect a discharge or defeasance, as applicable, in accordance with this Article
8.



     Section 8.10. Qualifying Trustee. Any trustee appointed pursuant to Section 8.05 or 8.06 for
the purpose of holding money or U.S. Government Obligations deposited pursuant to such Sections
shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the
Trustee a certificate, upon which certificate the Trustee shall be entitled to conclusively rely,
that all conditions precedent provided for herein to the related defeasance have been complied
with. In no event shall the Trustee be liable for any acts or omissions of said trustee



ARTICLE 9

Amendments, Supplements and Waivers




     Section 9.01. Without Consent of Holders. The Company and the Trustee may amend or
supplement this Indenture or the Securities of any series without notice to or the consent of any
Holder:




     (a) to cure any ambiguity, defect or inconsistency in this Indenture; provided that
such amendments or supplements shall not adversely affect the interests of the Holders in
any material respect;




     (b) to comply with Article 5;




     (c) to maintain the qualification of this Indenture under the Trust Indenture Act;




     (d) to evidence and provide for the acceptance of appointment hereunder with respect
to the Securities of any or all series by a successor Trustee and to add to or change any
of the provisions of this Indenture as



49









 







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 7.09;




     (e) to establish the form or forms or terms of Securities of any series or of the
coupons appertaining to such Securities as permitted by Section 2.03;




     (f) to provide for uncertificated or Unregistered Securities and to make all
appropriate changes for such purpose; and




     (g) to make any change that does not materially and adversely affect the rights of
any Holder.



     Section 9.02. With Consent of Holders. Subject to Sections 6.04 and 6.07, without prior
notice to any Holders, the Company and the Trustee may amend this Indenture and the Securities of
any series with the written consent of the Holders of a majority in Principal amount of the
outstanding Securities of each series affected by such amendment, and the Holders of a majority in
Principal amount of the outstanding Securities of each series affected thereby by written notice to
the Trustee may waive future compliance by the Company with any provision of this Indenture or the
Securities of such series.



     Notwithstanding the provisions of this Section 9.02, without the consent of each Holder
affected thereby, an amendment or waiver, including a waiver pursuant to Section 6.04, may not:



     (a) change the stated maturity of the Principal of, or any sinking fund obligation or any
installment of interest on, such Holder’s Security,



     (b) reduce the Principal amount thereof or the rate of interest thereon (including any amount
in respect of original issue discount);



     (c) reduce the above stated percentage of outstanding Securities the consent of whose holders
is necessary to modify or amend the Indenture with respect to the Securities of the relevant
series; and



     (d) reduce the percentage in Principal amount of outstanding Securities of the relevant series
the consent of whose Holders is required for any supplemental indenture or for any waiver of
compliance with certain provisions of this Indenture or certain Defaults and their consequences
provided for in this Indenture.



     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 Holders of Securities of such series with respect to
such covenant or provision,



50









 







shall be deemed not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the coupons appertaining to such Securities.



     It shall not be necessary for the consent of any Holder under this Section 9.02 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall give to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.



     Section 9.03. Revocation and Effect of Consent. Until an amendment or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to its Security or portion of its Security.
Such revocation shall be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on receipt by the Trustee of
written consents from the requisite Holders of outstanding Securities affected thereby.



     The Company may, but shall not be obligated to, fix a record date (which may be not less than
five nor more than 60 days prior to the solicitation of consents) for the purpose of determining
the Holders of the Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the immediately preceding
paragraph, those Persons who were such Holders at such record date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective for more than 90 days
after such record date.



     After an amendment, supplement or waiver becomes effective with respect to the Securities of
any series affected thereby, it shall bind every Holder of such Securities unless it is of the type
described in any of clauses (a) through (d) of Section 9.02. In case of an amendment or waiver of
the type described in clauses (a) through (d) of Section 9.02, the amendment or waiver shall bind
each such Holder who has consented to it and every subsequent Holder of a Security that evidences
the same indebtedness as the Security of the consenting Holder.



     Section 9.04. Notation on or Exchange of Securities. If an amendment, supplement or waiver
changes the terms of any Security, the Trustee may require



51









 







the Holder thereof to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the Holder and the Trustee may
place an appropriate notation on any Security of such series thereafter authenticated.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security of the same series and tenor
that reflects the changed terms.



     Section 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, stating that all requisite consents have been obtained or that no consents are
required and stating that such supplemental indenture constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, subject to
customary exceptions. The Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



     Section 9.06. Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article 9 shall conform to the requirements of the Trust Indenture Act as then in
effect.



ARTICLE 10

Miscellaneous




     Section 10.01. Trust Indenture Act of 1939. This Indenture shall incorporate and be governed
by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.



     Section 10.02. Notices. Any notice or communication shall be sufficiently given if written
and (a) if delivered in person when received or (b) if mailed by first class mail 5 days after
mailing, or (c) as between the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:



     if to the Company:


Western Refining, Inc.

123 W. Mills Ave., Suite 200

El Paso, Texas 79901

Telecopy: (915) 534-1400

Attention: General Counsel




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     if to the Trustee:


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

601 Travis Street, 16th Floor

Houston, Texas 77002

Telecopy: 713-483-6954

Attention: Corporate Trust Services (re: Western Refining, Inc.)




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



     Any notice or communication shall be sufficiently given to Holders of any Unregistered
Securities, by publication at least once in an Authorized Newspaper in The City of New York, or
with respect to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits at least once in an Authorized Newspaper in London,
and by mailing to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to
the Trustee and to Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be sufficiently given if so
mailed within the time prescribed. Copies of any such communication or notice to a Holder shall
also be mailed to the Trustee and each Agent at the same time.



     Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this Section 10.02, it is duly given,
whether or not the addressee receives it.



     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 it shall be impracticable to give notice as herein contemplated, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.



     Section 10.03. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:



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     (a) an Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and




     (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.



     Section 10.04. Statements Required in Certificate or Opinion. Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than
the certificate required by Section 4.04) shall include:




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




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




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




     (d) a statement as to whether or not, in the opinion of each such person, such
condition or covenant has been complied with; provided, however, that, with respect to
matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials.



     Section 10.05. Evidence of Ownership. The Company, the Trustee and any agent of the Company
or the Trustee may deem and treat the Holder of any Unregistered Security and the Holder of any
coupon as the absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving payment thereof or
on account thereof and for all other purposes, and neither the Company, the Trustee, nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary. The fact of the
holding by any Holder of an Unregistered Security, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on the date thereof a
Security bearing a specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named in such certificate. Any
such certificate may be issued in respect of one or more Unregistered Securities specified therein.
The holding by



54









 







the person named in any such certificate of any Unregistered Securities specified therein
shall be presumed to continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (1) another certificate bearing a later date issued
in respect of the same Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security specified in such
certificate shall have ceased to be outstanding. Subject to Article 7, the fact and date of the
execution of any such instrument and the amount and numbers of Securities held by the Person so
executing such instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.



     The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name any Registered Security shall be registered upon the Security Register for
such series as the absolute owner of such Registered Security (whether or not such Registered
Security shall be overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the Principal of and, subject to the
provisions of this Indenture, interest on such Registered Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.



     Section 10.06. Rules by Trustee, Paying Agent or Registrar. The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable
rules for its functions.



     Section 10.07. Payment Date Other Than a Business Day. Except as otherwise provided with
respect to a series of Securities, if any date for payment of Principal or interest on any Security
shall not be a Business Day at any place of payment, then payment of Principal of or interest on
such Security, as the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect as if made on such
date and no interest shall accrue in respect of such payment for the period from and after such
date.



     Section 10.08. Governing Law. The laws of the State of New York shall govern this Indenture
and the Securities.



     Section 10.09. No Adverse Interpretation of Other Agreements. This Indenture may not be used
to interpret another indenture or loan or debt agreement of the Company or any Subsidiary of the
Company. Any such indenture or agreement may not be used to interpret this Indenture.



     Section 10.10. Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.



55









 





     Section 10.11. Duplicate Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     Section 10.12. Separability. 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 10.13. Table of Contents, Headings, Etc. The Table of Contents and headings of the
Articles and Sections of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.



     Section 10.14. Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in
this Indenture or any indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against any incorporator,
as such or against any past, present or future stockholder, officer, director or employee, as such,
of the Company or of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of any assessment or by
any legal or equitable proceeding or otherwise, all such liability being expressly waived and
released by the acceptance of the Securities and the coupons appertaining thereto by the holders
thereof and as part of the consideration for the issue of the Securities and the coupons
appertaining thereto.



     Section 10.15. Judgment Currency. The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the Principal of or interest on the
Securities of any series (the “Required Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a Business Day, then, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with normal banking procedures
the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency
on the Business Day preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)), in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency



56









 







expressed to be payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.



     Section 10.16. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE 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 TRANSACTIONS
CONTEMPLATED HEREBY.



     Section 10.17. 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.




57









 








SIGNATURES




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



	 	 	 	 	 
	 	WESTERN REFINING, INC.

     as the Company

 	 
	 	By:  	/s/ Jeff A. Stevens
 	 
	 	 	Name:  	Jeff A. Stevens 	 
	 	 	Title:  	President and Chief Operating
Officer 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST

     COMPANY, N.A.

     as the Trustee

 	 
	 	By:  	/s/ Rafael Martinez
 	 
	 	 	Name:  	Rafael Martinez 	 
	 	 	Title:  	Assistant Treasurer