exv4w1






Exhibit 4.1




 





PATRIOT COAL CORPORATION




and




Wilmington Trust Company, Trustee




INDENTURE



Dated as of May 5, 2010



 




 









 





TABLE OF CONTENTS






	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE 1
	Definitions
	Section 1.01.
	 	Certain Terms Defined	 	1
	 
	 	 	 	 
	ARTICLE 2
	Securities
	 
	 	 	 	 
	Section 2.01.
	 	Forms Generally	 	5
	Section 2.02.
	 	Form of Certification of Authentication	 	5
	Section 2.03.
	 	Amount Unlimited; Issuable in Series	 	6
	Section 2.04.
	 	Authentication and Delivery of Securities	 	7
	Section 2.05.
	 	Execution of Securities	 	9
	Section 2.06.
	 	Certificate of Authentication	 	9
	Section 2.07.
	 	Denomination and Date of Securities; Payments of Interest	 	9
	Section 2.08.
	 	Registration, Transfer and Exchange	 	10
	Section 2.09.
	 	Mutilated, Defaced, Destroyed, Lost and Stolen Securities	 	12
	Section 2.10.
	 	Cancellation of Securities; Destruction Thereof	 	13
	Section 2.11.
	 	Temporary Securities	 	14
	Section 2.12.
	 	Global Securities	 	14
	 
	 	 	 	 
	ARTICLE 3
	Covenants of the Issuer and the Trustee
	 
	 	 	 	 
	Section 3.01.
	 	Payment of Principal and Interest	 	15
	Section 3.02.
	 	Offices for Payments, etc	 	15
	Section 3.03.
	 	Appointment to Fill a Vacancy in Office of Trustee	 	15
	Section 3.04.
	 	Paying Agents	 	16
	Section 3.05.
	 	Certificate of the Issuer	 	17
	Section 3.06.
	 	Securityholders Lists	 	17
	Section 3.07.
	 	Reports by the Issuer	 	17
	Section 3.08.
	 	Reports by the Trustee	 	17
	 
	 	 	 	 
	ARTICLE 4

	Remedies of the Trustee and Securityholders on Event of Default

	 
	 	 	 	 
	Section 4.01.
	 	Event of Default; Acceleration of Maturity; Waiver of Default	 	18
	Section 4.02.
	 	Collection of Indebtedness by Trustee; Trustee May Prove Debt	 	20
	Section 4.03.
	 	Application of Proceeds	 	22
	Section 4.04.
	 	Suits for Enforcement	 	23






 









 






	 	 	 	 	 

	Section 4.05.
	 	Restoration of Rights on Abandonment of Proceedings	 	24
	Section 4.06.
	 	Limitations on Suits by Securityholder	 	24
	Section 4.07.
	 	Unconditional Right of Securityholders to Institute Certain Suits	 	24
	Section 4.08.
	 	Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default	 	25
	Section 4.09.
	 	Control by Securityholders	 	25
	Section 4.10.
	 	Waiver of Past Defaults	 	26
	Section 4.11.
	 	Trustee to Give Notice of Default, But May Withhold in Certain Circumstances	 	26
	Section 4.12.
	 	Right of Court to Require Filing of Undertaking to Pay Costs	 	26
	 
	 	 	 	 
	ARTICLE 5

	Concerning the Trustee
	 
	 	 	 	 
	Section 5.01.
	 	Duties and Responsibilities of the Trustee; During Default; Prior to Default	 	27
	Section 5.02.
	 	Certain Rights of the Trustee	 	28
	Section 5.03.
	 	Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof	 	30
	Section 5.04.
	 	Trustee and Agents May Hold Securities; Collections, etc	 	30
	Section 5.05.
	 	Moneys Held by Trustee	 	30
	Section 5.06.
	 	Compensation and Indemnification of Trustee and its Prior Claim	 	31
	Section 5.07.
	 	Right of Trustee to Rely on Officers’ Certificate, etc	 	31
	Section 5.08.
	 	Persons Eligible for Appointment as Trustee	 	32
	Section 5.09.
	 	Resignation and Removal; Appointment of Successor Trustee	 	32
	Section 5.10.
	 	Acceptance of Appointment by Successor	 	33
	Section 5.11.
	 	Merger, Conversion, Consolidation or Succession to Business of Trustee	 	34
	Section 5.12.
	 	Indenture Not Creating Potential Conflicting Interests For The Trustee	 	35
	 
	 	 	 	 
	ARTICLE 6

	Concerning the Securityholders

	 
	 	 	 	 
	Section 6.01.
	 	Evidence of Action Taken by Securityholders	 	35
	Section 6.02.
	 	Proof of Execution of Instruments and of Holding of Securities; Record Date	 	35
	Section 6.03.
	 	Holders to Be Treated as Owners	 	36
	Section 6.04.
	 	Securities Owned by Issuer Deemed Not Outstanding	 	36
	Section 6.05.
	 	Right of Revocation of Action Taken	 	37






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	ARTICLE 7

	Supplemental Indentures

	 
	 	 	 	 
	Section 7.01.
	 	Supplemental Indentures Without Consent of Securityholders	 	37
	Section 7.02.
	 	Supplemental Indentures with Consent of Securityholders	 	39
	Section 7.03.
	 	Effect of Supplemental Indenture	 	40
	Section 7.04.
	 	Documents to Be Given to Trustee	 	40
	Section 7.05.
	 	Notation on Securities in Respect of Supplemental Indentures	 	40
	 
	 	 	 	 
	ARTICLE 8

	Consolidation, Merger, Sale or Conveyance

	 
	 	 	 	 
	Section 8.01.
	 	Issuer May Consolidate, etc., on Certain Terms	 	41
	Section 8.02.
	 	Successor Corporation Substituted	 	41
	Section 8.03.
	 	Opinion of Counsel to Trustee	 	42
	 
	 	 	 	 
	ARTICLE 9

	Satisfaction and Discharge of Indenture; Unclaimed Moneys

	 
	 	 	 	 
	Section 9.01.
	 	Satisfaction and Discharge of Indenture	 	42
	Section 9.02.
	 	Application by Trustee of Funds Deposited for Payment of Securities	 	43
	Section 9.03.
	 	Repayment of Moneys Held by Paying Agent	 	43
	Section 9.04.
	 	Return of Moneys Held by Trustee and Paying Agent Unclaimed for Three Years	 	43
	 
	 	 	 	 
	ARTICLE 10

	Miscellaneous Provisions
	 
	 	 	 	 
	Section 10.01.
	 	Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability	 	44
	Section 10.02.
	 	Provisions of Indenture for the Sole Benefit of Parties and Securityholders	 	44
	Section 10.03.
	 	Successors and Assigns of Issuer Bound by Indenture	 	44
	Section 10.04.
	 	Notices and Demands on Issuer, Trustee and Securityholders	 	44
	Section 10.05.
	 	Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein	 	45
	Section 10.06.
	 	Payments Due on Saturdays, Sundays and Holidays	 	46
	Section 10.07.
	 	Conflict of any Provision of Indenture with Trust Indenture Act of 1939	 	46
	Section 10.08.
	 	New York Law to Govern	 	46
	Section 10.09.
	 	Counterparts	 	47
	Section 10.10.
	 	Effect of Headings	 	47






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	ARTICLE 11

	Redemption of Securities and Sinking Funds

	 
	 	 	 	 
	Section 11.01.
	 	Applicability of Article	 	47
	Section 11.02.
	 	Notice of Redemption; Partial Redemptions	 	47
	Section 11.03.
	 	Payment of Securities Called for Redemption	 	48
	Section 11.04.
	 	Exclusion of Certain Securities from Eligibility for Selection for Redemption	 	49
	Section 11.05.
	 	Mandatory and Optional Sinking Funds	 	49
	 
	 	 	 	 
	ARTICLE 12

	Defeasance

	 
	 	 	 	 
	Section 12.01.
	 	Issuer's Option to Effect Defeasance	 	52
	Section 12.02.
	 	Defeasances and Discharge	 	52
	Section 12.03.
	 	Covenant Defeasance	 	52
	Section 12.04.
	 	Conditions to Defeasance	 	53
	Section 12.05.
	 	Deposited Money and U.S. Government Obligations to Be Held in Trust; Reinstatement; Miscellaneous	 	54





Exhibit A — Form of Note






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THIS INDENTURE, dated as of May 5, 2010 between PATRIOT COAL CORPORATION, a corporation
organized under the laws of the State of Delaware (the “Issuer”), and Wilmington Trust Company (the
“Trustee”),




W I T N E S S E T H:




     WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured
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 Issuer 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 Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective Holders from time to time of the Securities as follows:



ARTICLE 1

Definitions




     Section 1.01. Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust
Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities
Act as in force at the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term “generally accepted accounting principles” means such
accounting principles as are generally accepted at the time of any computation. The words “herein”,
“hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and
not to any particular Article,



 









 




Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as the singular.




     “Board of Directors” means either the Board of Directors of the Issuer or any committee of
such Board duly authorized to act hereunder.



     “Business Day” means, with respect to any Security, a day other than a Saturday or Sunday that
in the city (or in any of the cities, if more than one) in which amounts are payable, as specified
in the form of such Security, is not a day on which banking institutions are authorized by law or
regulation to close.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after the execution and
delivery of this Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act of 1939, then the body performing such duties on such date.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, at the
date as of which this Indenture is dated, located at 1100 North Market Street, Rodney Square North,
Wilmington, Delaware 19890, Attn: Corporate Trust Administration — Patriot Coal Corporation, or
any other address that the Trustee may designate from time to time by notice to the Issuer and the
Holders.



     “Depository” means, with respect to the Securities of any series issuable upon original
issuance in whole or in part in the form of one or more Global Securities, The Depository Trust
Company (or any nominee, successor to or assignee thereof) or any other clearing agency registered
under the Securities Exchange Act of 1934 specified for that purpose as contemplated by Section
2.03.



     “Event of Default” means any event or condition specified as such in Section 4.01.



     “Global Security” means a Security bearing the legend specified in Section 2.12 evidencing all
or part of a series of Securities, issued to the Depository with respect to such series or its
nominee and registered in the name of such Depository or nominee.



     “Holder”, “Holder of Securities”, “Securityholder” or other similar terms mean the registered
holder of any Security.



     “Indenture” means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented



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or both, and shall include the forms
and terms of particular series of Securities established as contemplated hereunder.




     “Interest” means, when used with respect to non-interest bearing Securities, interest payable
after maturity.



     “Issuer” means (except as otherwise provided in Article 5) Patriot Coal Corporation, a
corporation organized under the laws of the State of Delaware, and, subject to Article 8, its
successors and assigns.



     “Officers’ Certificate” means a certificate signed by the chairman of the Board of Directors
or the president or any vice president and by the treasurer or the secretary or any assistant
secretary of the Issuer and delivered to the Trustee. Each such certificate shall comply with
Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section
10.05.



     “Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 10.05, if and to the extent required hereby.



     “Original issue date” of any Security (or portion thereof) means the earlier of (a) the date
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 4.01.



     “Outstanding”, when used with reference to Securities, shall, subject to the provisions of
Section 6.04, mean, as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except:



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



     (b) Securities, or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer
for the Holders of such Securities (if the Issuer shall act as its own paying agent), provided that
if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice
of such



3









 




redemption shall have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and




     (c) Securities in substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of Section 2.09 (except with
respect to any such Security as to which proof satisfactory to the Trustee is presented that such
Security is held by a person in whose hands such Security is a legal, valid and binding obligation
of the Issuer).



     In determining whether the Holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 4.01.



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



     “Principal” whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any”.



     “Responsible Officer” when used with respect to the Trustee means the chairman of the board of
directors, any vice chairman of the board of directors, the chairman of the trust committee, the
chairman of the executive committee, any vice chairman of the executive committee, the president,
any vice president, the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of his knowledge
of and familiarity with the particular subject, in each case having direct responsibility for
administration of this Indenture.



     “Security” or “Securities” has the meaning stated in the first recital of this Indenture, or,
as the case may be, Securities that have been authenticated and delivered under this Indenture.



     “Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article 5, shall also include any successor trustee.



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     “Trust Indenture Act of 1939” (except as otherwise provided in Section 7.01 and 7.02) means
the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally
executed.



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



     “Yield to Maturity” means the yield to maturity on a series of securities, calculated at the
time of issuance of such series, or, if applicable, at the most
recent redetermination of interest on such series, and calculated in accordance with accepted
financial practice.



ARTICLE 2

Securities




     Section 2.01. Forms Generally. The Securities of each series shall be
substantially in such form attached hereto as Exhibit A (unless the Securities of such series are
not issued in global form) as shall be established by or pursuant to a resolution of the Board of
Directors 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, not
inconsistent with the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.



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



     Section 2.02. Form of Certification of Authentication. The certificate of
authentication on all Securities shall be in substantially the following form:



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



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	 	[                                        ], as

[Trustee/Authenticating Agent]

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 




     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 a resolution of the Board of Directors and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:



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



     (b) any limit upon the aggregate principal amount of the Securities of the series
that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);



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



     (d) the rate or rates at which the Securities of the series shall bear interest, if
any, or the method by which such rate shall be determined, the date or dates from which such
interest shall accrue, the interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;



     (e) the place or places where the principal of and any interest on Securities of the
series shall be payable (if other than as provided in Section 3.02);



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



     (g) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of
the series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period or



6









 




periods within which and 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 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 pursuant to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;



     (j) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture);



     (k) if and the terms and conditions upon which the Securities of the series may or
must be converted into securities of the Company or exchanged for securities of the Company or
another enterprise;



     (l) any trustees, authenticating or paying agents, transfer agents or registrars or
any other agents with respect to the Securities of such series;



     (m) if the Securities are not to be issued in global form, the form of such
Securities;



     (n) the Depository with respect to such Global Security (if not The Depository Trust
Company); and



     (o) the circumstances under which any Global Security may be exchanged for
Securities registered in the name of, and any transfer of such Global Security may be registered
to, a Person other than such Depository or its nominee, if other than as set forth in Section 2.08.



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors
or in any such indenture supplemental hereto.



     Section 2.04. Authentication and Delivery of Securities. At any time and from time
to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of
any series executed by the Issuer to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the written order of the Issuer,
signed by both (a) the Chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or any vice president and (b) by its treasurer or any assistant
treasurer, without any further action by the Issuer. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in



7









 




relation to such Securities the
Trustee shall be entitled to receive, and (subject to Section 5.01) shall be fully protected in
relying upon:




     (a) a certified copy of any resolution or resolutions of the Board of Directors
authorizing the action taken pursuant to the resolution or resolutions delivered under clause
2.04(b) below;



     (b) a copy of any resolution or resolutions of the Board of Directors relating to
such series, in each case certified by the Secretary or an Assistant Secretary of the Issuer;



     (c) an executed supplemental indenture, if any;



     (d) an Officers’ Certificate setting forth the form and terms of the Securities as
required pursuant to Section 2.01 and 2.03, respectively and prepared in accordance with Section
10.05;



     (e) an Opinion of Counsel, prepared in accordance with Section 10.05, to the effect




     (i) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors or by a supplemental
indenture as permitted by Section 2.01 and 2.03 in conformity with the provisions of this
Indenture;




     (ii) that such Securities, when authenticated and delivered by the Trustee
and issued by the Issuer in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the Issuer;




     (iii) that all laws and requirements in respect of the execution and
delivery by the Issuer of the Securities have been complied with; and




     (iv) covering such other matters as the Trustee may reasonably request; and



     (f) if the Securities being issued are Original Issue Discount Securities, an
Officers’ Certificate of the Issuer setting forth the Yield to Maturity for such Securities and any
other facts required to compute amounts due on acceleration, unless such Yield to Maturity and
other facts are specified in the form of Security.



     The Trustee shall have the right to decline to authenticate and deliver any Securities under
this section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust



8









 




committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal liability to
existing Holders.




     Section 2.05. Execution of Securities. The Securities shall be signed on behalf of
the Issuer by both (a) the chairman of its Board of Directors or any vice chairman of its Board of
Directors or its president or any vice president and (b) by its treasurer or any assistant
treasurer or its secretary or any assistant secretary, under its corporate seal which may, but need
not, be attested. Such signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security that has been duly authenticated and delivered by
the Trustee.



     In case any officer of the Issuer who shall have signed any of the Securities shall cease to
be such officer before the Security so signed shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be such officer of the
Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security, shall be the proper officers of
the Issuer, although at the date of the execution and delivery of this Indenture any such
person was not such an officer.



     Section 2.06. Certificate of Authentication. Only such Securities as shall bear
thereon a certificate of authentication substantially in the form hereinbefore recited, executed by
the Trustee by the manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Indenture.



     Section 2.07. Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable as registered securities without coupons and in denominations as shall
be specified as contemplated by Section 2.03. In the absence of any such specification with respect
to the Securities of any series, the Securities of such series shall be issuable in denominations
of $1,000 and any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.



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     Each Security shall be dated the date of its authentication, shall bear interest, if any, from
the date and shall be payable on the dates, in each case, which shall be specified as contemplated
by Section 2.03.



     The person in whose name any 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 Security subsequent to the record date and
prior to such interest payment date, except if and to the extent the Issuer shall default in the
payment of the interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding Securities for such
series are registered at the close of business on a subsequent record date (which shall be not less
than five Business Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Issuer to the Holders of Securities not less than 15
days preceding such subsequent record date. The term “record date” as used with respect to any
interest payment date (except a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular series, or, if no such date is
so specified, if such interest payment date is the first day of a calendar month, the fifteenth day
of the next preceding calendar month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or not such record date is a Business
Day.



     Section 2.08. Registration, Transfer and Exchange. The Issuer will keep or cause
to be kept at each office or agency to be maintained for the purpose as provided in Section 3.02 a
register or registers in which, subject to such reasonable regulations as it may prescribe, it will
register, and will register the transfer of, Securities as in this Article provided. Such register
shall be in written form in the English language or in any other form capable of being converted
into such form within a reasonable time. At all reasonable times such register or registers shall
be open for inspection by the Trustee.



     Upon due presentation for registration of transfer of any Security of any series at any such
office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series in authorized denominations for a like aggregate
principal amount.



     Any Security or Securities of any series may be exchanged for a Security or Securities of the
same series in other authorized denominations, in an equal aggregate principal amount. Securities
of any series to be exchanged shall be surrendered at any office or agency to be maintained by the
Issuer for the purpose as provided in Section 3.02, and the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor the Security or Securities of the



10









 




same series
which the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously Outstanding.




     All Securities presented for registration of transfer, exchange, redemption or payment shall
(if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his attorney duly authorized in writing.



     The Issuer and the Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or registration of transfer
of Securities and any other expenses (including the fees and expenses of the Trustee). No service
charge shall be made for any such transaction.



     The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days next preceding the first mailing of notice of redemption of
Securities of such series to be redeemed, or (b) any Securities selected, called or being called
for redemption except, in the case of any Security where public notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed.



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



     Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 2.03,
any Global Security of any series shall be exchangeable for definitive Securities only if: (i) such
Depository is at any time unwilling or unable to continue as Depository or ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, and a successor Depository registered
as a clearing agency under the Securities Act of 1934 is not appointed by the Issuer within 90
days, or (ii) the Issuer executes and delivers to the Trustee an Officers’ Certificate providing
that such Global Security shall be so exchangeable and the transfer thereof so registrable.



     If the beneficial owners of interests in a Global Security are entitled to exchange such
interests for definitive Securities as the result of an event described in the preceding sentence,
then without unnecessary delay but in any event not later than the earliest date on which such
interests may be so exchanged, the Issuer shall deliver to the Trustee definitive Securities in
such form and denominations as are required by or pursuant to this Indenture, and of the same
series, containing identical terms and in aggregate principal amount equal to the principal amount
of such Global Security, executed by the Issuer. On or after the



11









 




earliest date on which such
interests may be so exchanged, such Global Security shall be surrendered from time to time by the
Depository and in accordance with instructions given to the Trustee and the Depository (which
instructions shall be in writing but need not be accompanied by an Opinion of Counsel), as shall be
specified in an Officers’ Certificate with respect thereto to the Trustee, as the Issuer’s agent
for such purpose, to be exchanged, in whole or in part, for definitive Securities as described
above without charge.




     The Trustee shall authenticate and make available for delivery, in exchange for each portion
of such surrendered Global Security, a like aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of such Global
Security to be exchanged, provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities of the same series
to be redeemed and ending at the close of business on the day of the mailing of a notice of
redemption of Securities.



     Promptly following any such exchange in part, such Global Security shall be returned by the
Trustee to such Depository in accordance with the instructions of the Issuer referred to above. If
a Security is issued in exchange for any portion of a Global Security after the close of business
at the office or agency for such Security where such exchange occurs on or after (i) any regular
record date for such Security and before the opening of business at such office or agency on the
next interest payment date, or (ii) any subsequent record date, established pursuant to Section
2.07, for such Security and before the opening of business at such office or agency on the related
proposed date for payment of interest or defaulted interest, as the case may be, interest shall not
be payable on such interest payment date or proposed date for payment, as the case may be, to such
beneficial holder, but shall be payable on such interest payment date or proposed
date for payment, as the case may be, only to the Person to whom interest in respect of such
portion of such Global Security shall be payable in accordance with the provisions of this
Indenture.



     Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case
any temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or
stolen, the Issuer in its discretion may execute, and upon the written request of any officer of
the Issuer, the Trustee shall authenticate and deliver, a new Security of the same series, bearing
a number not contemporaneously Outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of destruction, loss or
theft, evidence to



12









 




their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.




     Upon the issuance of any substitute Security, the Issuer and the Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer
may instead of issuing a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such
payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee
such security or indemnity as any of them may require to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss
or theft of such Security and of the ownership thereof.



     Every substitute Security of any series issued pursuant to the provisions of this section by
virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of such series duly authenticated and delivered
hereunder. All Securities shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.



     Section 2.10. Cancellation of Securities; Destruction Thereof. All Securities
surrendered for payment, redemption, registration of transfer or exchange, or for credit against
any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of
the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to
the Trustee, shall be canceled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee shall destroy canceled
Securities held by it and upon the written request of the Issuer deliver a certificate of
destruction to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition
shall not operate as a redemption or satisfaction of the



13









 




indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for cancellation.




     Section 2.11. Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver
temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced,
in each case in form satisfactory to the Trustee, which may be in the form of a global Security).
Temporary Securities of any series shall be issuable without coupons, of any authorized
denomination, and, subject to the preceding sentence, substantially in the form of the definitive
Securities of such series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish
definitive Securities of such series and thereupon temporary Securities of such series may be
surrendered in exchange therefor without charge at each office or agency to be maintained by the
Issuer for that purpose pursuant to Section 3.02, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal amount of
definitive Securities of the same series of 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 2.12. Global Securities. Unless otherwise provided pursuant to a
resolution of the Board of Directors or in an indenture supplemental hereto, the Securities shall
be issued in global form. Any Security in global form shall provide that it or any number of such
Securities shall represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities represented thereby may from time
to time be increased or reduced to reflect any purchase,
redemption, exchange or cancellation. Any endorsement of any Security in global form to
reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and by such Person as
shall be specified therein.



     The Trustee shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person specified therein. The Issuer, the Trustee and any agent
of the Issuer and the Trustee shall treat as the Holder, the Holder of such Global Security in
registered form.



14









 





     Any Global Security authenticated and delivered hereunder shall bear a legend in substantially
the following form:




     “This Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depository or a nominee of a Depository.
This Security is exchangeable for Securities registered in the name of a Person other than
the Depository or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Security (other than a transfer of this Security as a
whole by the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository) may be registered except in such
limited circumstances.”



ARTICLE 3

Covenants of the Issuer and the Trustee




     Section 3.01. Payment of Principal and Interest. The Issuer covenants and agrees
for the benefit of the Holders of each series of Securities that it will duly and punctually pay or
cause to be paid the principal of, and interest on, each of the Securities of such series at the
place or places, at the respective times and in the manner provided in such Securities. Each
installment of interest on the Securities of any series may be paid by wire transfer in immediately
available funds to a U.S. dollar account maintained by a Holder of Securities or its nominee, or
upon the written order of the Holders of Securities entitled thereto as they shall appear on the
registry books of the Issuer.



     Section 3.02. Offices for Payments, etc. So long as any of the Securities remain
Outstanding, the Issuer will maintain the following for each series: an office or agency (a) where
the Securities may be presented for payment, (b) where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided and (c) where notices and
demands to or upon the Issuer in respect of the Securities or of this Indenture may be served. The
Issuer will give to the Trustee written notice of the location of any such office or agency and of
any change of location thereof. Unless otherwise specified in accordance with Section 2.03, the
Issuer shall designate the office to be maintained by it for each such purpose. In case the Issuer
shall fail to so designate or maintain any such
office or agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be served at the Corporate
Trust Office.



     Section 3.03. Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to
each series of Securities hereunder.



15









 





     Section 3.04. Paying Agents. Whenever the Issuer shall appoint a paying agent
other than the Trustee with respect to the Securities of any series other than the initial paying
agent appointed under an indenture supplemental hereto, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section,



     (a) that it will hold all sums received by it as such agent for the payment of the
principal of or interest on the Securities of such series (whether such sums have been paid to it
by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of
the Holders of the Securities of such series or of the Trustee,



     (b) that it will give the Trustee notice of any failure by the Issuer (or by any
other obligor on the Securities of such series) to make any payment of the principal of or interest
on the Securities of such series when the same shall be due and payable, and



     (c) pay any such sums so held in trust by it to the Trustee upon the Trustee’s
written request at any time during the continuance of the failure referred to in clause 3.04(b)
above.



     The Issuer will, on or prior to 10:00 AM New York time, or at any such other time and date as
may be agreed by the Issuer and paying agent, on each due date of the principal of or interest on
the Securities of such series, deposit with the paying agent a sum sufficient to pay such principal
or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.



     If the Issuer shall act as its own paying agent with respect to the Securities of any Series,
it will, on or before each due date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of
such series a sum sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.



     Anything in this section to the contrary notwithstanding, the Issuer may at any time, for the
purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein
contained.



16









 





     Anything in this section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this section is subject to the provisions of Section 9.03 and 9.04.



     Section 3.05. Certificate of the Issuer. The Issuer will furnish to the Trustee,
within 120 days after the end of each fiscal year of the Issuer, a brief certificate (which need
not comply with Section 10.05) from the principal executive, financial or accounting officer of the
Issuer as to his or her knowledge of the Issuer’s compliance with all conditions and covenants
under the Indenture (such compliance to be determined without regard to any period of grace or
requirement of notice provided under the Indenture).



     Section 3.06. Securityholders Lists. If and so long as the Trustee shall not be
the Security registrar for the Securities of any series, the Issuer 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 of such series 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 interest on such Securities, as hereinabove specified, as of such record date and on
dates to be determined pursuant to Section 2.03 for non-interest bearing securities in each year,
and (b) at such other times as the Trustee may request in writing, within thirty days after receipt
by the Issuer of any such request as of a date not more than 15 days prior to the time such
information is furnished.



     Section 3.07. Reports by the Issuer. The Issuer covenants to file with the
Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents, and other reports which the Issuer may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934.



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



     Section 3.08. Reports by the Trustee. Any Trustee’s report required under Section
313(a) of the Trust Indenture Act of 1939 shall be transmitted on or before July 15 in each year
following the date hereof, so long as any Securities are Outstanding hereunder, and shall be dated
as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto.



17









 





ARTICLE 4

Remedies of the Trustee and Securityholders on Event of Default




     Section 4.01. Event of Default; Acceleration of Maturity; Waiver of Default.
"Event of Default” with respect to Securities of any series wherever used herein, means each one of
the following events which shall have occurred and be continuing (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):



     (a) default in the payment of any installment of interest upon any of the Securities
of such series as and when the same shall become due and payable, and continuance of such default
for a period of 30 days; or



     (b) default in the payment of all or any part of the principal on any of the
Securities of such series as and when the same shall become due and payable either at maturity,
upon redemption, by declaration or otherwise; or



     (c) default in the payment of any sinking fund installment as and when the same
shall become due and payable by the terms of the Securities of such series; or



     (d) default in the performance, or breach, of any covenant or warranty of the Issuer
in respect of the Securities of such series (other than a covenant or warranty in respect of the
Securities of such series a default in whose performance or whose breach is elsewhere in this
section specifically dealt with), and continuance of such default or breach for a period of 30 days
after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the
Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such
series, a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or



     (e) a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Issuer 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 or sequestrator (or similar official) of the Issuer 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; or



     (f) the Issuer shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator,



18









 




assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or for any substantial part of its property, or make any general assignment for the benefit of
creditors; or




     (g) any other Event of Default provided in the supplemental indenture or resolution
of the Board of Directors under which such series of Securities is issued or in the form of
Security for such series.



     If an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c) or 4.01(d) above occurs
and is continuing, then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of such series then
Outstanding hereunder (each such series voting as a separate class) by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of such series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) 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. If an Event of Default described in clause
4.01(e) or 4.01(f) occurs and is continuing, then and in each and every such case, the entire
principal (or, if any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then Outstanding and
interest accrued thereon, if any, shall be due and payable immediately.



     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) of the Securities of any series shall have been
so declared 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 Issuer shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of any and all Securities of such series 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 such series to the date of such payment
or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad faith, and if any and all
Events of Default under the Indenture, other than the non-payment of the principal and interest of
Securities which shall have become due by acceleration, shall have been cured, waived or otherwise



19









 




remedied as provided herein—then and in every such case the Holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a separate class, then
Outstanding, by written notice to the Issuer
and to the Trustee, may waive all defaults with respect to such series 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 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 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 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. The
Issuer covenants that (a) in case default shall be made in the payment of any installment of
interest on any of the Securities of any series when such interest shall have become due and
payable, and such default shall have continued for a period of 30 days or (b) in case default shall
be made in the payment of all or any part of the principal of any of the Securities of any series
when the same shall have become due and payable, whether upon maturity of the Securities of such
series or upon any redemption or by declaration or otherwise—then upon demand of the Trustee, the
Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the
whole amount that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such payment upon the
overdue 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 such
series); and in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a result of its
negligence or bad faith.



     Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on
the Securities of any series to the Holders, whether or not the principal of and interest on the
Securities of such series shall be overdue.



20









 





     In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such Securities and collect
in the manner provided by law out of the property of the Issuer or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to be payable.



     In case there shall be pending proceedings relative to the Issuer or any other obligor upon
the Securities under Title 11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer or such other obligor, the
Trustee, irrespective of whether the principal of any Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:



     (a) to file and prove a claim or claims for the whole amount of principal and
interest (or, if the Securities of any series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) owing and unpaid in
respect of the Securities of any series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad
faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Securities of any series, or to the creditors or property of the Issuer or
such other obligor,



     (b) unless prohibited by applicable law and regulations, to vote on behalf of the
Holders of the Securities of any series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and



     (c) to collect and receive any moneys or other property payable or deliverable on
any such claims, and to distribute all amounts received with respect



21









 




to the claims of the
Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 5.06.




     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.



     All rights of action and of asserting claims under this Indenture, or under any of the
Securities, may be enforced by the Trustee without the possession of any of the Securities or the
production thereof on any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities in respect of which such action
was taken.



     In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party) the
Trustee shall be held to represent all the Holders of the Securities in respect to which such
action was taken, and it shall not be necessary to make any Holders of such Securities parties to
any such proceedings.



     Section 4.03. Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect 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 in respect of which monies have
been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of
such series in reduced principal amounts in exchange for the presented Securities of like series if
only partially paid, or upon surrender thereof if fully paid:



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     FIRST: To the payment of costs and expenses applicable to such series in respect of
which monies have been collected, including reasonable compensation to the Trustee and
each predecessor Trustee and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith, and all other amounts due to the Trustee or
any predecessor Trustee pursuant to Section 5.06;




     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;




     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 Issuer or any other person
lawfully entitled thereto.



     Section 4.04. Suits for Enforcement. In case an Event of Default has occurred, has
not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement



23









 




contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.




     Section 4.05. Restoration of Rights on Abandonment of Proceedings. In case the
Trustee or any Holder shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or such Holder, then and in every such case the Issuer, the Trustee and
such Holder shall be restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceedings had been taken.



     Section 4.06. Limitations on Suits by Securityholder. No Holder of any Security of
any series shall have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under
or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such indemnity satisfactory to it as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such written request shall have been given
to the Trustee pursuant to Section 4.09; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security with every other taker and Holder and the
Trustee, that no one or more Holders of Securities of any series shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all Holders
of Securities of the applicable series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.



     Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any Security, the right
of any Holder of any Security to receive payment of the principal of and interest on such Security
on or after the respective due dates




24











 




expressed in such Security, or to institute 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 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 4.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.



     No delay or omission of the Trustee or of any Securityholder to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.06, every power and remedy given by this Indenture or by law to
the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.



     Section 4.09. Control by Securityholders. The Holders of a majority in aggregate
principal amount of the Securities of each series affected (with each series voting as a separate
class) at the time Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series by this Indenture; provided
that such direction shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall
have the right to decline to follow any such direction if the Trustee, being advised by counsel,
shall determine that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a trust committee of
directors or responsible officers of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series so affected not
joining in the giving of said direction, it being understood that (subject to Section 5.01) the
Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.



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     Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.



     Section 4.10. Waiver of Past Defaults. The Holders of a majority in aggregate
principal amount of the Securities of such series at the time Outstanding (each such series voting
as a separate class) may on behalf of the Holders of all the Securities of such series waive any
past default or Event of Default described in clause 4.01(d), 4.01(e), 4.01(f) or 4.01(g), except a
default in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of each Holder affected as provided in Section 7.02. In the case of any such waiver,
the Issuer, the Trustee and the Holders of the Securities of each series affected shall be restored
to their former positions and rights hereunder, respectively.



     Upon any such waiver, such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Event of Default arising therefrom shall be deemed to have been
cured, and not to have occurred 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 thereon.



     Section 4.11. Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall give to the Securityholders of any series, as the names and
addresses of such Holders appear on the registry books, notice by mail of all defaults known to the
Trustee which have occurred with respect to such series, such notice to be transmitted within 45
days after the occurrence thereof, unless such defaults shall have been cured or waived before the
giving of such notice (the term “default” or “defaults” for the purposes of this section being
hereby defined to mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); provided that, except in the case of default in the payment of
the principal of or interest on any of the Securities of such series, or in the payment of any
sinking or purchase fund installment with respect to the Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or trustees and/or responsible officers of
the Trustee in good faith determines that the withholding of such notice is in the interests of the
Securityholders of such series.



     Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs. All
parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion



26









 





     assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this section shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Securityholder or group of Securityholders of any series holding in
the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in
the case of any suit relating to or arising under clauses 4.01(d) if the suit relates to Securities
of more than one but less than all series, 10% in aggregate principal amount of Securities
Outstanding affected thereby, or in the case of any suit relating to or arising under clauses
4.01(d) (if the suit relates to all the Securities then Outstanding), 4.01(e) or 4.01(f), 10% in
aggregate principal amount of all Securities Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security.



ARTICLE 5

Concerning the Trustee




     Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to
Default. With respect to the Holders of any series of Securities issued hereunder, the Trustee,
prior to the occurrence of an Event of Default with respect to the Securities of a particular
series and after the curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture. In case an Event of Default with respect to the Securities of a series
has occurred (which has not been cured or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.



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



     (a) prior to the occurrence of an Event of Default with respect to the Securities of
any series and after the curing or waiving of all such Events of Default with respect to such
series which may have occurred:




     (i) the duties and obligations of the Trustee with respect to the
Securities of any Series shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and



27









 






     (ii) in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of any such
statements, certificates, opinions or other documents or instruments which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture; provided, however, that the Trustee shall not be
responsible for the accuracy or content of any statement, certificate, opinion or other
document or instrument furnished by the Issuer hereunder.



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



     (c) the Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with this Indenture or at the direction of
the Holders pursuant to Section 4.09 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising or omitting to exercise any trust
or power conferred upon the Trustee, under this Indenture.



     None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.



     The provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316
of the Trust Indenture Act of 1939.



     Section 5.02. Certain Rights of the Trustee. In furtherance of and subject to the
Trust Indenture Act of 1939, and subject to Section 5.01:



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



28









 





     (b) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;



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



     (d) the Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Indenture or to institute, conduct or defend any litigation hereunder or in
connection hereto at the request, order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and liabilities which might be
incurred therein or thereby;



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



     (f) 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, 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 indemnity satisfactory to it against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall
be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the
Issuer upon demand;



     (g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys not regularly in its employ
including, but not limited to an authentication agent, paying agent, transfer agent or registrar,
and the Trustee shall not be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder;



29









 





     (h) the Trustee shall not be deemed to have notice or be charged with knowledge of
any default or Event of Default with respect to the Securities, unless either (1) a Responsible
Officer shall have actual knowledge of such default or Event of Default or (2) written notice of
such default or Event of Default shall have been given to a Responsible Officer by the Issuer or by
any Holder of the Securities;



     (i) the permissive rights of the Trustee enumerated herein shall not be construed as
duties;



     (j) the Trustee shall not be required to give any bond or surety in respect of the
execution of its obligations under this Indenture;



     (k) the Trustee shall not be responsible for delays or failures in performance
resulting from acts beyond its control, such acts including, but not limited to, acts of God,
strikes, lockouts, riots and acts of war; and



     (l) anything in this Indenture to the contrary notwithstanding, in no event shall
the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost profits), even if
the Trustee has been advised of the likelihood of such loss or damage and regardless of the
form of action.



     Section 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the
Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof.



     Section 5.04. Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not the Trustee or such
agent.



     Section 5.05. Moneys Held by Trustee. Subject to the provisions of Section 9.04
hereof, all moneys received by the Trustee or any paying agent shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by mandatory provisions of law. Neither
the Trustee nor any



30









 




agent of the Issuer or the Trustee shall be under any liability for interest on
any moneys received by it hereunder.




     Section 5.06. Compensation and Indemnification of Trustee and Its Prior Claim.
The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly in its employ)
except to the extent any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and the performance of its
duties hereunder, including the costs and expenses of defending itself against or investigating any
claim of liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent such loss liability or expense is due to the negligence or bad
faith of the Trustee or such predecessor Trustee. The obligations of the Issuer 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 resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture. 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, and the Securities are hereby subordinated to such
senior claim.



     Section 5.07. Right of Trustee to Rely on Officers’ Certificate, etc. Subject to
Sections 5.01 and 5.02, whenever in the 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.



31









 





     Section 5.08. Persons Eligible for Appointment as Trustee. The Trustee for each
series of Securities hereunder shall at all times be a corporation or association having a combined
capital and surplus of at least $50,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the requirements of a
Federal, State or District of Columbia supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published.



     Section 5.09. Resignation and Removal; Appointment of Successor Trustee. (a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of resignation to the Issuer and by
mailing notice thereof by first class mail to Holders of the applicable series of Securities at
their last addresses as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six
months may, subject to the provisions of Section 4.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.



     (b) In case at any time any of the following shall occur:




     (i) the Trustee shall fail to comply with the provisions of Section 310(b)
of the Trust Indenture Act of 1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of
a Security or Securities of such series for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939 and shall fail to resign
after written request therefor by the Issuer or by any Securityholder; or



32









 






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


then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section
315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months may on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.




     (c) The Holders of a majority in aggregate principal amount of the Securities of
each series at the time Outstanding may at any time remove the Trustee with respect to Securities
of such series and appoint a successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.01 of the action in that regard taken by the Securityholders.



     (d) Any resignation or removal of the Trustee with respect to any series and any
appointment of a successor trustee with respect to such series pursuant to any of the provisions of
this Section 5.09 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 5.10.



     Section 5.10. Acceptance of Appointment by Successor. Any successor trustee
appointed as provided in Section 5.09 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all rights, powers, duties and obligations with respect to such series of
its predecessor hereunder, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.04,
pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument



33









 




transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such trustee to secure any amounts then due
it pursuant to the provisions of Section 5.06.




     If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor Trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of
any series as to which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and 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 under separate indentures.



     Upon acceptance of appointment by any successor trustee as provided in this Section 5.10, the
Issuer shall mail notice thereof by first-class mail to the Holders of Securities of any series for
which such successor trustee is acting as trustee at their last addresses as they shall appear in
the Security register. If the acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be combined with the notice
called for by Section 5.09. If the Issuer fails to mail such notice within ten
days after acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Issuer.



     Section 5.11. Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such Person shall be eligible under
the provisions of Section 5.08, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary notwithstanding.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the



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certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided that the certificate of the
Trustee shall have such full force; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any series in the name
of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.




     Section 5.12. Indenture Not Creating Potential Conflicting Interests For The
Trustee. The following indenture is hereby specifically described for the purposes of Section
310(b)(1) of the Trust Indenture Act of 1939: Indenture dated as of May 28, 2008 between Patriot
Coal Corporation, as Issuer, and U.S. Bank, National Association, as Trustee, for 3.25% Convertible
Senior Notes due 2013.



ARTICLE 6

Concerning the Securityholders




     Section 6.01. Evidence of Action Taken by Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
given or taken by a specified percentage in principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections
5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Article.



     Section 6.02. Proof of Execution of Instruments and of Holding of Securities;
Record Date. Subject to Sections 5.01 and 5.02, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The holding of Securities shall be proved by the Security register or by a certificate of
the registrar thereof. The Issuer may set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to vote or consent to any action referred to in
Section 6.01, which record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60
days nor less than five days



35









 




prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, only Holders of Securities of such series of record on
such record date shall be entitled to so vote or give such consent or revoke such vote or consent.




     Section 6.03. Holders to Be Treated as Owners. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall
be registered upon the Security register for such series as the absolute owner of such Security
(whether or not such 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 Security and for all other
purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.



     No holder of any beneficial interest in any Global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such Global Security, and such
Depository may be treated by the Issuer, the Trustee, and any agent of the Issuer or the Trustee as
the owner of such Global Security for all purposes whatsoever. None of the Issuer, the Trustee, any
Paying Agent or the registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.



     Section 6.04. Securities Owned by Issuer Deemed Not Outstanding. In determining
whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or
all series have concurred in any direction, consent, waiver or other instrument or action by
Securityholders under this Indenture, Securities which are owned by the Issuer or any other obligor
on the
Securities with respect to which such determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Issuer
or any other obligor on the Securities with respect to which such determination is being made shall
be disregarded and deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other instrument or action by Securityholders only Securities which a
Responsible Officer of the Trustee knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or any person



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directly
or indirectly controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of
counsel shall be full protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers’ Certificate listing and identifying all Securities, if any, known by the Issuer to be
owned or held by or for the account of any of the above-described persons; and, subject to Sections
5.01 and 5.02, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.




     Section 6.05. Right of Revocation of Action Taken. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by
the Holders of the percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Security and of any Securities issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.



ARTICLE 7

Supplemental Indentures




     Section 7.01. Supplemental Indentures Without Consent of Securityholders. The
Issuer, when authorized by a resolution of its Board of Directors, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto for one or more of
the following purposes:



     (a) to cure any ambiguity or to correct or supplement any provision contained herein
or in any supplemental indenture which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental indenture as the Board
of



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Directors may deem necessary or desirable and which shall not adversely affect the interests of
the Holders of the Securities in any material respect;




     (b) to evidence the succession of another corporation to the Issuer, or successive
successions, and the assumption by the successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article 8;



     (c) to add to the covenants of the Issuer such further covenants, restrictions,
conditions or provisions as its Board of Directors and the Trustee shall consider to be for the
protection of the Holders of Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions, conditions or provisions
an Event of Default permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may limit the right of
the Holders of a majority in aggregate principal amount of the Securities of such series to waive
such an Event of Default;



     (d) to add guarantors with respect to the Securities of one or more series;



     (e) to convey, transfer, assign, mortgage or pledge to the Trustee as security for
the Securities of one or more series any property or assets;



     (f) to establish the form or terms of Securities of any series as permitted by
Sections 2.01 and 2.03;



     (g) to maintain the qualification of the Indenture under the Trust Indenture Act of
1939;



     (h) to make any change that does not adversely affect the rights of any Holder; and



     (i) to evidence and provide for the acceptance of appointment hereunder by a
successor trustee with respect to the Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to the requirements of
Section 5.10.



     The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance,



38









 




transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.




     Any supplemental indenture authorized by the provisions of this section may be executed
without the consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 7.02.



     Section 7.02. Supplemental Indentures With Consent of Securityholders. With the
consent (evidenced as provided in Article 6) of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of a series affected by such
supplemental indenture, the Issuer, when authorized by a resolution of its Board of Directors, and
the Trustee may, from time to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such series; provided, that
no such supplemental indenture shall (a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or
alter or waive any amount payable on redemption thereof or alter or waive the amount of the
principal of an Original Issue Discount Security that would be due and payable upon an acceleration
of the maturity thereof pursuant to Section 4.01 or the amount thereof provable in bankruptcy
pursuant to Section 4.02, or change the currency in which principal or interest is paid, or impair
or affect the right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the Securityholder without the
consent of the Holder of each Security of such series so affected, or waive a payment default with
respect to the Securities or any guarantee, or adversely affect the ranking of the Securities of
any series, or release any guarantor from any of its obligations under its guarantee or the
Indenture, except in compliance with the terms of the Indenture, (b) reduce the aforesaid
percentage of Securities of such series, the consent of the Holders of which is required for
any amendment, supplemental indenture, or waiver or consent to take any action without the
consent of the Holders of each Security of such series so affected.



     Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01,
the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, duties or immunities




39












 




under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.




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



     Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Issuer shall mail a notice thereof by first class
mail to the Holders of Securities of each series affected thereby at their addresses as they shall
appear on the registry books of the Issuer, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental indenture.



     Section 7.03. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.



     Section 7.04. Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 5.01 and 5.02, may receive an Officers’ Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 7
are authorized or permitted by this Indenture and complies with the applicable provisions of this
Indenture.



     Section 7.05. Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article may bear a notation in form approved by the
Trustee for such series as to any matter provided
for by such supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of such series then
Outstanding.



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ARTICLE 8

Consolidation, Merger, Sale or Conveyance




     Section 8.01. Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not consolidate or combine with or merge with or into or, directly or
indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all
of its properties and assets to any Person or Persons in a single transaction or through a series
of transactions, unless (i) either the Issuer shall be the continuing Person, or the successor
Person shall be a corporation organized and existing under the laws of the United States of America
or any State or territory thereof and shall expressly assume all the Issuer’s obligations under the
Indenture, including but not limited to, the due and punctual payment of the principal of and
interest on all the Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be performed or observed by
the Issuer, by, if required by law to effectuate such assumption, a supplemental indenture, in form
and substance satisfactory to the Trustee, executed and delivered to the Trustee by such Successor
Person, and (ii) immediately after giving effect to such transaction or series of transactions on a
pro forma basis, no default has occurred and is continuing.



     Section 8.02. Successor Corporation Substituted. In case of any such
consolidation, combination, merger, sale, assignment, conveyance, lease, transfer or other
disposition of all or substantially all of the Issuer’s assets and following such an assumption by
the successor Person, such successor Person shall succeed to and be substituted for the Issuer,
with the same effect as if it had been named herein. Such successor Person may cause to be signed,
and may issue either in its own name or in the name of the Issuer prior to such succession any or
all of the Securities issuable hereunder which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such successor Person instead of the Issuer
and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and any Securities which
such successor Person thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof.



     In case of any such consolidation, combination, merger, sale, assignment, conveyance, lease,
transfer or other disposition of all or substantially all of the Issuer’s assets, such changes in
phraseology and form (but not in substance) may be made in the Securities thereafter to be issued
as may be appropriate.



41









 





     Upon any such consolidation, combination, merger, sale, assignment, conveyance, lease,
transfer or other disposition of all or substantially all of the Issuer’s assets other than a
conveyance by way of lease or any sale, assignment, conveyance, lease, transfer or other
disposition to subsidiaries of the Issuer, the Issuer or any successor Person which shall
theretofore have become such in the manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities.



     Section 8.03. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 5.01 and 5.02, shall have received an Officers’ Certificate and Opinion of
Counsel, prepared in accordance with Section 10.05, as conclusive evidence that any such
consolidation, combination, merger, assignment, conveyance, lease, transfer or other disposition of
all or substantially all of the Issuer’s assets, and any such assumption, and any such supplemental
indenture, if any, comply with the applicable provisions of this Indenture and that all conditions
precedent in the Indenture relating to the transaction or series of transactions have been
satisfied.



ARTICLE 9

Satisfaction and Discharge of Indenture; Unclaimed Moneys




     Section 9.01. Satisfaction and Discharge of Indenture. If at any time (a) the
Issuer shall have delivered to the Trustee for cancellation all securities of any series
theretofore authenticated (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 2.09)
or (b) (i) all the securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year and the Issuer has made irrevocable arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the Issuer’s name, at the Issuer’s expense,
and (ii) the Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as
trust funds sufficient funds to pay and discharge the entire Indebtedness on such series of
Securities to pay principal and interest (other than moneys repaid by the Trustee or any paying
agent to the Issuer in accordance with Section 9.04) 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 2.09) 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 as the case may be, and if,
in any such case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer with respect to Securities of such series, then this Indenture shall cease to be of
further effect with respect to Securities of such series, and the Trustee, on demand of the Issuer
accompanied by an Officers’



42









 




Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments stating that all conditions precedent under the
Indenture relating to the satisfaction and discharge of the Indenture have been complied with;
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 Issuer 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.




     Section 9.02. Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 9.04, all moneys deposited with the Trustee pursuant to Section 9.01 shall be
held in trust and applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own 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 9.03. 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 Issuer, 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 9.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Three 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 three years after the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer 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 Issuer 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.



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ARTICLE 10

Miscellaneous Provisions




     Section 10.01. Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly or through the
Issuer 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 by the Holders
thereof and as part of the consideration for the issue of the Securities.



     Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give
or be construed to give to any person, firm or corporation, other than the parties hereto and their
successors and the Holders of the Securities, any legal or equitable right, remedy or claim under
this Indenture or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their successors and of the Holders
of the Securities.



     Section 10.03. Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the
Issuer shall bind its successors and assigns, whether so expressed or not.



     Section 10.04. Notices and Demands on Issuer, Trustee and Securityholders. Any
notice or demand which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by
being deposited postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to
Patriot Coal Corporation 12312 Olive Boulevard, St. Louis, Missouri 63141. Any notice, direction,
request or demand by the Issuer or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if in writing and given or made at the
Corporate Trust Office.



     Where this Indenture provides for notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid,
to each Holder entitled thereto, at his last address as it appears in the Security register. In any
case where notice to Holders



44









 




is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.




     In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer and Securityholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.



     Section 10.05. Officers’ Certificates and Opinions of Counsel; Statements to Be
Contained Therein. Upon any application or demand by the Issuer to the Trustee to take any action
under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel such action is authorized or permitted by the Indenture and all such conditions
precedent have been complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be
furnished.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (a)
a statement that the person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c) a statement that, in
the opinion of 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 such person, such
condition or covenant has been complied with.



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



45









 




statement or
opinion of counsel may be based, insofar as it relates to factual matters, information with respect
to which is in the possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion
or representations with respect to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.




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



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



     Section 10.06. Payments Due on Saturdays, Sundays and Holidays. If the date of
maturity of interest on or principal of the Securities of any series or the date fixed for
redemption or repayment of any such Security shall not be a Business Day, then payment of interest
or principal need not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.



     Section 10.07. Conflict of any Provision of Indenture with Trust Indenture Act of
1939. Pursuant to Section 3.18(c) of the Trust Indenture Act of 1939, the provisions of Section
310 to 317, inclusive, of the Trust Indenture Act of 1939 that impose duties on any person
(including provisions automatically deemed included in this Indenture unless this Indenture
provides that such provisions are excluded) are a part of and govern this Indenture, whether or not
physically contained herein. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by operation of Sections
310 to 317, inclusive, of the Trust Indenture Act of 1939 (an “incorporated provision”), such
incorporated provision shall control. Therefore, the cross reference sheet required pursuant to
Item 601(b)(4)(iv)(B) of Regulation S-K is hereby omitted.



     Section 10.08. New York Law to Govern. This Indenture and each Security shall be
deemed to be a contract under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such State, except as may otherwise be required by
mandatory provisions of law.



46









 





     Section 10.09. Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.



     Section 10.10. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the construction hereof.



ARTICLE 11

Redemption of Securities and Sinking Funds




     Section 11.01. Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any series which are redeemable before their 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 11.02. Notice of Redemption; Partial Redemptions. Notice of redemption to
the Holders of Securities of any series to be redeemed as a whole or in part at the option of the
Issuer 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
Securities of such series at their last addresses as they shall appear upon the registry books. Any
notice which is mailed 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 date fixed for redemption, the
redemption price, the place or places of payment, that payment will be made upon presentation and
surrender of such Securities, 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
surrender of such Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.



47









 





     The notice of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at
the expense of the Issuer.



     At least one Business Day prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with
the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.04) 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 less than all the Outstanding Securities of a series are to be redeemed, the
Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an
Officers’ Certificate stating the aggregate principal amount of Securities to be redeemed.



     If less than all the Securities of a series are to be redeemed, the Trustee shall redeem such
Securities pro rata, or shall select, 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
multiples equal to the minimum authorized denomination for Securities of such series or any
multiple thereof. The Trustee shall promptly notify the Issuer 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 of any series 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.



     Section 11.03. 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 said date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue and, except as provided in
Sections 5.05 and 9.04, such Securities shall cease from and after the date fixed for redemption to
be entitled to any benefit or security 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, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that any semiannual payment of interest
becoming due on the date fixed



48









 




for redemption shall be payable to the Holders of such Securities
registered as such on the relevant record date subject to the terms and provisions of Section 2.04
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 the Security.



     Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.



     Section 11.04. 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 written statement signed by an authorized
officer of the Issuer 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 Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.



     Section 11.05. 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 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 Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer and delivered to the Trustee for cancellation pursuant to Section 2.07, (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
Issuer through any optional redemption provision contained in the terms of such series. Securities
so delivered or credited



49









 




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,
the Issuer will deliver to the Trustee a written statement (which need not contain the statements
required by Section 10.05) signed by an authorized officer of the Issuer (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 Securities of such series, (b) stating that none of the 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 Issuer 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 Issuer 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 Issuer 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 2.10 to the Trustee with such written statement (or reasonably
promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and
upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such sixtieth day, to deliver such
written statement 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 Issuer (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 Issuer 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 Issuer shall so request) with
respect to the Securities of any particular 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 together with accrued interest to the date fixed for redemption. If such
amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in
Section 11.02, 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 Issuer) inform the Issuer of the serial numbers



50









 




of the Securities of such series (or
portions thereof) so selected. Securities of any series which are (a) owned by the Issuer or an
entity known by the Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Security register, and not known
to the Trustee to have been pledged or hypothecated by the Issuer or any such entity or (b)
identified in an Officers’ Certificate at least 60 days prior to the sinking fund payment date as
being beneficially owned by, and not pledged or hypothecated by, the Issuer or an entity directly
or indirectly controlling or controlled by or under direct or indirect common control with the
Issuer shall be excluded from Securities of such series eligible for selection for redemption. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, 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 11.02 (and with the effect provided in
Section 11.03) for the redemption of Securities of such series in part at the option of the Issuer.
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, if necessary,
sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.




     At least one Business Day before each sinking fund payment date, the Issuer 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 for 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 Issuer 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
4 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 4.09 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys



51









 




shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this section to the redemption of such
Securities.




ARTICLE 12

Defeasance




     Section 12.01. Issuer’s Option to Effect Defeasance. The Issuer may at its
option, by resolution of the Board of Directors, at any time, elect to defease the Issuer’s
obligations under the Outstanding Securities of any series and this Indenture in accordance with
either Section 12.02 or Section 12.03 upon compliance with the conditions set forth below in this
Article Twelve.



     Section 12.02. Defeasances and Discharge. Upon the Issuer’s exercise of the
option set forth in Section 12.01 applicable to this Section, and after the expiration of the 91
day (or other) period referred to in clause (4) of Section 12.04, the Issuer shall be deemed to
have been discharged from its obligations with respect to the Outstanding Securities of such series
on the date the conditions set forth below are satisfied (hereinafter, “defeasance”). For this
purpose, such defeasance means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture insofar as the
Securities of such series are concerned (and the Trustee, upon an Issuer Order and at the expense
of the Issuer, shall execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders
of Outstanding Securities of such series to receive, solely from the trust fund described in
Section 12.04 and as more fully set forth in such Section, payments in respect of the principal of
and interest on the Securities of such series when such payments are due, (B) the Issuer’s
obligations with respect to such Securities of such series under Section 2.08, Section 2.09 and
Section 3.02, (C) the rights, powers, trusts, duties, and immunities of the Trustee hereunder,
including but not limited to Article Five, (D) the Issuer’s right of optional redemption, if any,
(E) the rights of Holders to receive mandatory sinking fund payments, if any, and (F) this Article
Twelve. Subject to compliance with this Article Twelve, the Issuer may exercise its option under
this Section 12.02 notwithstanding the prior exercise of its option under Section 12.03 with
respect to the Securities of such series.



     Section 12.03. Covenant Defeasance. Upon the Issuer’s exercise of the option set
forth in Section 12.01 applicable to this Section, and after the expiration of the 91 day (or
other) period referred to in clause (4) of Section 12.04, the Issuer shall be released from its
obligations under Sections 3.05, 4.01(e), 4.01(f), 4.01(g) (if Section 4.01(g) is specified as
applicable to the Securities of such series) and 8.01, with respect to the Outstanding Securities
of any series on



52









 




and after the date the conditions set forth below are satisfied with respect to
such series (hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities of such series, the Issuer may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in any such
Section, whether directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision herein or in any
other document, and such omission to comply shall not constitute a default or Event of Default
under Section 4.01(d), but, except as specified above, the remainder of this Indenture and the
Securities of such series shall be unaffected thereby.




     Section 12.04. Conditions to Defeasance. The following shall be the conditions to
application of either Section 12.02 or Section 12.03 to the Outstanding Securities of any series.



     (1) The Issuer shall irrevocably have deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of Securities of such series (A)
money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of
principal and interest, if any, in respect thereof in accordance with their terms will provide
money in an amount, or (C) a combination, in each case sufficient without reinvestment, in the
opinion of an internationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, all of the principal
and interest at due date or maturity or if the Issuer has made irrevocable arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Issuer’s
name and at the Issuer’s expense, the redemption date.



     (2) In the case of an election under Section 12.02, the Issuer shall have delivered to the
Trustee an Opinion of Counsel stating that, under then applicable federal income tax law, the
Holders of the Outstanding Securities of such series will not recognize gain or loss for federal
income tax purposes as a result of the deposit, defeasance and discharge to be effected and will be
subject to the same federal income tax as would be the case if the deposit, defeasance and
discharge did not occur.



     (3) In the case of an election under Section 12.03, the Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such
series will not recognize gain or loss for U.S. federal income tax purposes as a result of the
deposit and such covenant defeasance to be effected and will be subject to the same federal income
tax as would be the case if the deposit and covenant defeasance did not occur.



53









 





     (4) No Default with respect to the Outstanding Securities of such series has occurred and is
continuing at the time of such deposit after giving effect to the deposit, or in the case of
defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any
time on or before the 91st day after the date such deposit, it being understood that this condition
is not deemed satisfied until after the 91st day.



     (5) Such defeasance or covenant defeasance shall not cause the Trustee for the Securities of
such series to have a conflicting interest as defined in Section 310(b)(1) of the Trust Indenture
Act of 1939, assuming all Securities of a series were in default within the meaning of such Act.



     (6) Such defeasance or covenant defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Issuer is a party.



     (7) The defeasance or covenant defeasance will not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act of
1940, as amended, unless the trust is registered under such act or exempt from registration.



     (8) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to either the defeasance
under Section 12.02 or the covenant defeasance under Section 12.03 (as the case may be) have been
complied with.



     Section 12.05. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Reinstatement; Miscellaneous. Subject to the provisions of Section 9.04, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to
Section 12.04 in respect of the Outstanding Securities of any series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any paying agent (including the Issuer acting
as its own paying agent), as the Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of principal and interest, if any, but
such money need not be segregated from other funds except to the extent required by law.



     The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the U.S. Government Obligations deposited pursuant to Section 9.01 or 12.04 or
the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the Outstanding Securities of such series.



54









 





     If the Trustee is unable to apply any money or U.S. Government Obligations in accordance with
Section 9.01 or 12.04 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 Issuer’s obligations under this Indenture and the Securities of such series shall
be revived and reinstated as though no deposit had occurred pursuant to Section 9.01 or 12.04;
provided that if the Issuer has made any payment of principal of or interest on any Securities of
such series because of the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Securities of such series to receive such payment from the money or
U.S. Government Obligations held by the Trustee.




55











 





     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed,
and their respective corporate seals to be hereunto affixed and attested, all as of
May 5, 2010.



	 	 	 	 	 
	 	PATRIOT COAL CORPORATION

 	 
	 	By:  	/s/ Richard M. Whiting	 
	 	 	Name: 	Richard M. Whiting	 
	 	 	Title: 	Chief Executive Officer	 
	 



	 	 	 	 	 
	[CORPORATE SEAL]





Attest:

 	 	 
	 	 	 
	By:  	/s/ Rashda M. Buttar	 	 
	 	Name: 	Rashda M. Buttar	 	 
	 	Title: 	Vice President and Associate General Counsel	 	 
	 



	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY

 	 
	 	By:  	/s/ Michael G. Oller Jr.	 
	 	 	Name: 	Michael G. Oller Jr.	 
	 	 	Title: 	Assistant Vice President	 
	 



	 	 	 	 	 
	[CORPORATE SEAL]





Attest:

 	 	 
	 	 	 
	By:  	/s/ Joshua C. Jones	 	 
	 	Name: 	Joshua C. Jones	 	 
	 	Title: 	Financial Services Officer	 	 



56









 






	 	 	 	 	 



	 	 	 	 	 

	STATE OF MISSOURI

	 	)	 	 
	 

	 	) ss.:

	COUNTY OF JEFFERSON

	 	)	 	 






     On this 5th
day of May 2010
before me personally came
Richard M. Whiting to me
personally known, who, being by me duly sworn, did depose and say that he resides at St. Louis,
that he is a officer
 of PATRIOT COAL CORPORATION, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by like authority.


[NOTARIAL SEAL]




	 	 	 	 	 
	 	 	 
	 	  	/s/ Diana L. Lenzner	 
	 	 	Notary Public 	 
	 	 	 	 



57









 






	 	 	 	 	 



	 	 	 	 	 

	STATE OF DELAWARE

	 	)	 	 
	 

	 	)  ss.:

	COUNTY OF NEW CASTLE

	 	)	 	 






     On this 4th day of
May before me personally came Michael G. Oller Jr.
to me personally known, who, being by me duly sworn, did depose and say
that he resides at Wilmington, Delaware, that he is an Assistant Vice President of WILMINGTON TRUST COMPANY,
one of the corporations described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.


[NOTARIAL SEAL]




	 	 	 	 	 
	 	 	 
	 	  	/s/ Patricia W. Zink	 
	 	 	Notary Public 	 
	 	 	 	 
	 



58









 






Exhibit A

to Indenture



REGISTERED




No.

PRINCIPAL AMOUNT: $



[CUSIP NO.       ]




PATRIOT COAL CORPORATION

[INTEREST PROVISION] Note due           ,





     [LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]



     PATRIOT COAL CORPORATION, a Delaware corporation, (the “Company” which term includes any
successor Person under the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay




     [DEPOSITORY]



     [DEPOSITORY PAYMENT INFORMATION]



     [DESCRIPTION OF PRINCIPAL TERMS OF NOTE AS SET FORTH PURSUANT TO A RESOLUTION OF THE BOARD OF
DIRECTORS OR IN ONE OR MORE INDENTURES SUPPLEMENTAL]



     [IF THE FIRST SUPPLEMENTAL INDENTURE IS INVOKED, AND A DESCRIPTION OF PRINCIPAL TERMS OF THE
GUARANTIES, IF APPLICABLE]



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



     Unless the Certificate of Authentication hereon has been executed by the Authentication Agent
by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.



 









 





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



	 	 	 	 	 
	 	PATRIOT COAL CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Attest:

 	 	 
	 	 	 
	
 	 	 
	Name:  	 	 	 
	Title:  	 	 	 



 









 






	 	 	 	 	 



CERTIFICATE OF AUTHENTICATION





     This is one of the Notes of the series referred to in the within-mentioned Indenture.


CITIBANK, N.A.




     As Authentication Agent on behalf of


WILMINGTON TRUST COMPANY




     As Trustee



	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Authorized Signatory 	 	 



	 	 	 	 	 
	Dated:  	 	 	 
	 	 	 	 
	 	 	 	 



 









 






	 	 	 	 	 



[FORM OF REVERSE OF NOTE]



PATRIOT COAL CORPORATION




% Note due           ,


[INTEREST PROVISION] Note due           ,





     This Note is one of a duly authorized issue of securities of the Company (herein called the
“Notes”), issued and to be issued as one series of debt securities of the Company under an
Indenture, dated as of           ,           , as amended and supplemented from
time to time (the “Indenture”), between Patriot Coal Corporation
(the “Company”) and Wilmington Trust Company, as Trustee (the “Trustee,” which term includes
any successor trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of
the terms upon which the Notes are, and are to be, authenticated and delivered. In addition to the
Notes, the Company is authorized to issue an unlimited amount of debt securities in one or more
series under the Indenture.



     [DESCRIPTION OF PRINCIPAL TERMS OF NOTE AND GUARANTIES, IF ANY, INCLUDING AND/OR IN ADDITION
TO THOSE SET FORTH ABOVE OR ON FACE OF NOTE]



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



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



 









 





FORM OF SCHEDULE TO GLOBAL NOTE


Initial Principal Amount

$[Insert Initial principal amount]




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Aggregate Principal
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Amount Remaining
	 	 	 	 	 	 	 	 	 	 	 	 	Amount of Principal	 	Amount of Principal	 	Following such
	 	 	 	 	Amount of Principal	 	Registration Number	 	Increased Upon	 	Increased	 	Purchase,
	 	 	 	 	Purchased,	 	of Certificated	 	Transfer and	 	(Decreased) Upon	 	Redemption,
	 	 	 	 	Redeemed, Exchanged	 	Note Transferred	 	Cancellation of	 	Transfer Between	 	Exchange or
	Date	 	or Cancelled	 	and Cancelled	 	Certificated Note	 	Global Notes	 	Cancellation





 









 






ASSIGNMENT




FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and

transfer(s)




	 	 	 	 	 

	unto
	 	 





PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE



 





(Please Print or Type Name and Address

Including Postal Zip Code of Assignee)


 





the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints



 









 




to transfer said Note on the books of the Company, with full power of substitution in the
premises.



Dated:                 
                    
          
                    



Signature Guaranteed



Signature Guaranteed




	 	 	 
	 

NOTICE: Signature must be guaranteed

	 	 NOTICE:
The signature to this assignment
must correspond with the name as written
upon the face of the within Note in every
particular, without alteration or
enlargement or any change whatever.