exv4w12



 





EXHIBIT 4.12




PEABODY ENERGY CORPORATION



Issuer




and




U.S. BANK NATIONAL ASSOCIATION



Trustee




__________________




INDENTURE




_____________




Dated as of March 19, 2003




 









 








PEABODY ENERGY CORPORATION

Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of March 19, 2003




	 	 	 	 	 
	TRUST INDENTURE ACT SECTION
	 	INDENTURE SECTION

	§310
	 	(a)(1)	 	6.09
	 
	 	(a)(2)	 	6.09
	 
	 	(a)(3)	 	Not Applicable
	 
	 	(a)(4)	 	Not Applicable
	 
	 	(b)	 	6.08
	 
	 	 	 	6.10
	§311
	 	(a)	 	6.13(a)
	 
	 	(b)	 	6.13(b)
	§312
	 	(a)	 	7.01
	 
	 	 	 	7.02(a)
	 
	 	(b)	 	7.02(b)
	 
	 	(c)	 	7.02(c)
	§313
	 	(a)	 	7.03(a)
	 
	 	(b)	 	7.03(b)
	 
	 	(c)	 	7.03(a)
	 
	 	 	 	7.03(b)
	 
	 	(d)	 	7.03(c)
	§314
	 	(a)	 	7.04
	 
	 	(c)(1)	 	1.02
	 
	 	(c)(2)	 	1.02
	 
	 	(c)(3)	 	Not Applicable
	 
	 	(d)	 	Not Applicable
	 
	 	(e)	 	1.02
	§315
	 	(a)	 	6.01(a)
	 
	 	(b)	 	6.02
	 
	 	(c)	 	6.01(b)
	 
	 	(d)	 	6.01(c)
	 
	 	(d)(1)	 	6.01(c)
	 
	 	(d)(2)	 	6.01(c)(2)
	 
	 	(d)(3)	 	6.01(c)(3)
	 
	 	(e)	 	5.09
	§316
	 	(a)	 	5.08
	 
	 	(a)(1)(A)	 	5.08
	 
	 	(a)(1)(B)	 	5.02
	 
	 	 	 	5.08
	 
	 	(a)(2)	 	Not Applicable
	 
	 	(b)	 	5.05
	§317
	 	(a)(1)	 	5.03
	 
	 	(a)(2)	 	5.03
	 
	 	(b)	 	10.03
	§318
	 	(a)	 	1.07













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




 









 










Table of Contents




	 	 	 	 	 
	 	 	Page

	ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	SECTION 1.01. Definitions
	 	 	1	 
	“Act”
	 	 	2	 
	“Affiliate”
	 	 	2	 
	“Authenticating Agent”
	 	 	2	 
	“Board of Directors”
	 	 	2	 
	“Board Resolution”
	 	 	2	 
	“Business Day”
	 	 	2	 
	“Commission”
	 	 	2	 
	“Company”
	 	 	2	 
	“Company Request” and “Company Order”
	 	 	2	 
	“Corporate Trust Office”
	 	 	2	 
	“Covenant Defeasance Option”
	 	 	3	 
	“Default”
	 	 	3	 
	“Defaulted Interest”
	 	 	3	 
	“Discharged”
	 	 	3	 
	“Eligible Guarantors”
	 	 	3	 
	“Event of Default”
	 	 	3	 
	“Exchange Act”
	 	 	3	 
	“Global Security”
	 	 	3	 
	“Guarantee”
	 	 	3	 
	“Guarantor”
	 	 	3	 
	“Holder”
	 	 	3	 
	“Indenture”
	 	 	3	 
	“interest”
	 	 	3	 
	“Interest Payment Date”
	 	 	3	 
	“Legal Defeasance Option”
	 	 	3	 
	“Maturity”
	 	 	4	 
	“Officer”
	 	 	4	 
	“Officers’ Certificate”
	 	 	4	 
	“Opinion of Counsel”
	 	 	4	 
	“Original Issue Discount Security”
	 	 	4	 
	“Outstanding”
	 	 	4	 
	“Paying Agent”
	 	 	5	 
	“Person”
	 	 	5	 
	“Redemption Date”
	 	 	5	 
	“Redemption Price”
	 	 	5	 
	“Responsible Officer”
	 	 	5	 
	“Securities”
	 	 	5	 
	“Security Register” and “Security Registrar”
	 	 	5	 







i









 






	 	 	 	 	 
	 	 	Page

	“Significant Subsidiary”
	 	 	6	 
	“Special Record Date”
	 	 	6	 
	“Stated Maturity”
	 	 	6	 
	“Subsidiary”
	 	 	6	 
	“Trustee”
	 	 	6	 
	“Trust Indenture Act”
	 	 	6	 
	“United States”
	 	 	6	 
	“U.S. Depositary”
	 	 	6	 
	“U.S. Government Obligations”
	 	 	6	 
	“Voting Stock”
	 	 	6	 
	“Yield to Maturity”
	 	 	7	 
	SECTION 1.02. Acts of Holders
	 	 	7	 
	ARTICLE TWO SECURITY FORMS
	 	 	7	 
	SECTION 2.01. Forms Generally
	 	 	7	 
	SECTION 2.02. Form of Trustee’s Certificate of Authentication
	 	 	8	 
	SECTION 2.03. Securities in Global Form
	 	 	8	 
	ARTICLE THREE THE SECURITIES
	 	 	8	 
	SECTION 3.01. Amount Unlimited; Issuable in Series
	 	 	8	 
	SECTION 3.02. Denominations
	 	 	10	 
	SECTION 3.03. Authentication and Dating
	 	 	10	 
	SECTION 3.04. Execution of Securities
	 	 	11	 
	SECTION 3.05. Exchange and Registration of Transfer of Securities
	 	 	12	 
	SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities
	 	 	13	 
	SECTION 3.07. Temporary Securities
	 	 	13	 
	SECTION 3.08. Payment of Interest; Interest Rights Preserved
	 	 	15	 
	SECTION 3.09. Persons Deemed Owners
	 	 	16	 
	SECTION 3.10. Cancellation
	 	 	16	 
	SECTION 3.11. Computation of Interest
	 	 	17	 
	SECTION 3.12. CUSIP Numbers
	 	 	17	 
	ARTICLE FOUR SATISFACTION AND DISCHARGE
	 	 	17	 
	SECTION 4.01. Satisfaction and Discharge of Indenture
	 	 	17	 
	SECTION 4.02. Application of Trust Money
	 	 	18	 
	ARTICLE FIVE REMEDIES
	 	 	18	 
	SECTION 5.01. Events of Default
	 	 	18	 
	SECTION 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	20	 
	SECTION 5.03. Payment of Securities on Default; Suit Therefor
	 	 	21	 
	SECTION 5.04. Application of Moneys Collected by Trustee
	 	 	22	 
	SECTION 5.05. Proceedings by Holders
	 	 	23	 







ii









 






	 	 	 	 	 
	 	 	Page

	SECTION 5.06. Proceedings by Trustee
	 	 	23	 
	SECTION 5.07. Remedies Cumulative and Continuing
	 	 	24	 
	SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders
	 	 	24	 
	SECTION 5.09. Undertaking to Pay Costs
	 	 	24	 
	ARTICLE SIX THE TRUSTEE
	 	 	25	 
	SECTION 6.01. Certain Duties and Responsibilities
	 	 	25	 
	SECTION 6.02. Notice of Defaults
	 	 	26	 
	SECTION 6.03. Certain Rights of Trustee
	 	 	26	 
	SECTION 6.04. Not Responsible for Recitals or Issuance of Securities
	 	 	27	 
	SECTION 6.05. May Hold Securities
	 	 	28	 
	SECTION 6.06. Money Held in Trust
	 	 	28	 
	SECTION 6.07. Compensation and Reimbursement
	 	 	28	 
	SECTION 6.08. Disqualification; Conflicting Interests
	 	 	29	 
	SECTION 6.09. Corporate Trustee Required; Eligibility
	 	 	29	 
	SECTION 6.10. Resignation and Removal; Appointment of Successor
	 	 	29	 
	SECTION 6.11. Acceptance of Appointment by Successor
	 	 	31	 
	SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	32	 
	SECTION 6.13. Preferential Collection of Claims Against Company
	 	 	32	 
	SECTION 6.14. Appointment of Authenticating Agent
	 	 	35	 
	ARTICLE SEVEN HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	37	 
	SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders
	 	 	37	 
	SECTION 7.02. Preservation of Information; Communications to Holders
	 	 	37	 
	SECTION 7.03. Reports by Trustee
	 	 	38	 
	SECTION 7.04. Reports by Company
	 	 	40	 
	ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
	 	 	40	 
	SECTION 8.01. Consolidations and Mergers of Company and Conveyances
Permitted Subject to Certain Conditions
	 	 	40	 
	SECTION 8.02. Rights and Duties of Successor Corporation
	 	 	41	 
	SECTION 8.03. Officers’ Certificate and Opinion of Counsel
	 	 	42	 
	ARTICLE NINE SUPPLEMENTAL INDENTURES
	 	 	42	 
	SECTION 9.01. Supplemental Indentures without Consent of Holders
	 	 	42	 
	SECTION 9.02. Supplemental Indentures with Consent of Holders
	 	 	44	 
	SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures
	 	 	44	 
	SECTION 9.04. Notation on Securities
	 	 	45	 







iii









 






	 	 	 	 	 
	 	 	Page

	SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee
	 	 	45	 
	ARTICLE TEN COVENANTS
	 	 	45	 
	SECTION 10.01. Payment of Principal and Interest
	 	 	45	 
	SECTION 10.02. Maintenance of Office or Agency
	 	 	45	 
	SECTION 10.03. Money for Security Payments to be Held in Trust
	 	 	46	 
	SECTION 10.04. Payment of Taxes and Other Claims
	 	 	47	 
	SECTION 10.05. Maintenance of Properties
	 	 	47	 
	SECTION 10.06. Statement as to Default
	 	 	47	 
	SECTION 10.07. Corporate Existence
	 	 	47	 
	SECTION 10.08. Waiver of Certain Covenants
	 	 	48	 
	SECTION 10.09. Calculation of Original Issue Discount
	 	 	48	 
	SECTION 10.10. Reports
	 	 	48	 
	ARTICLE ELEVEN REDEMPTION OF SECURITIES
	 	 	49	 
	SECTION 11.01. Applicability of Article
	 	 	49	 
	SECTION 11.02. Notice of Redemption; Selection of Securities
	 	 	49	 
	SECTION 11.03. Payment of Securities Called for Redemption
	 	 	49	 
	ARTICLE TWELVE SINKING FUNDS
	 	 	50	 
	SECTION 12.01. Applicability of Article
	 	 	50	 
	SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with Securities
	 	 	50	 
	SECTION 12.03. Redemption of Securities for Sinking Fund
	 	 	50	 
	ARTICLE THIRTEEN DEFEASANCE
	 	 	52	 
	SECTION 13.01. Applicability of Article
	 	 	52	 
	SECTION 13.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations
	 	 	52	 
	SECTION 13.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust
	 	 	53	 
	SECTION 13.04. Repayment to Company
	 	 	54	 
	ARTICLE FOURTEEN
	 	 	54	 
	SECTION 14.01. Applicability of Article
	 	 	54	 
	SECTION 14.02. Guarantee
	 	 	54	 
	SECTION 14.03. Obligations of the Guarantor Unconditional
	 	 	56	 
	SECTION 14.04. Article Fourteen Not To Prevent Events of Default
	 	 	56	 
	SECTION 14.05. Execution and Delivery of Guarantee
	 	 	56	 
	ARTICLE FIFTEEN
	 	 	56	 







iv









 






	 	 	 	 	 
	 	 	Page

	SECTION 15.01. Form of Documents Delivered to Trustee
	 	 	56	 
	SECTION 15.02. Notices
	 	 	57	 
	SECTION 15.03. Notice to Holders; Waiver
	 	 	58	 
	SECTION 15.04. Trust Indenture Act Controls
	 	 	59	 
	SECTION 15.05. Certificate and Opinion as to Conditions Precedent
	 	 	59	 
	SECTION 15.06. Statements Required in Certificate or Opinion
	 	 	59	 
	SECTION 15.07. Table of Contents, Headings, etc.
	 	 	60	 
	SECTION 15.08. Successors and Assigns
	 	 	60	 
	SECTION 15.09. Separability Clause
	 	 	60	 
	SECTION 15.10. Benefits of Indenture
	 	 	60	 
	SECTION 15.11. Rules by Trustee and Agents
	 	 	60	 
	SECTION 15.12. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	60	 
	SECTION 15.13. Governing Law
	 	 	60	 
	SECTION 15.14. Legal Holidays
	 	 	61	 
	SECTION 15.15. Indenture and Securities Solely Corporate Obligations
	 	 	61	 
	SECTION 15.16. No Security Interest Created
	 	 	61	 
	SECTION 15.17. Counterpart Originals
	 	 	61	 
	SECTION 15.18. No Adverse Interpretation of Other Agreements
	 	 	61	 







v









 






     INDENTURE, dated as of March 19, 2003 between Peabody Energy Corporation,
a Delaware corporation (hereinafter called the “Company”), and U.S. Bank
National Association, as Trustee (the “Trustee”).



RECITALS OF THE COMPANY




     WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or
more series (the “Securities”), as in this Indenture provided, up to such
principal amount or amounts as may from time to time be authorized in or
pursuant to one or more Board Resolutions; and



     WHEREAS, all things necessary to make this Indenture a valid and legally
binding agreement of the Company, in accordance with its terms, have been done.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE ONE




Definitions and Other Provisions

of General Application




     SECTION 1.01. Definitions.



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




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




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




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




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




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



 









 





     “Act” when used with respect to any Holder has the meaning specified in
Section 1.02.



     “Affiliate” of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
“control” (including, with correlative meanings, the terms “controlling,”
"controlled by” and “under common control with”) when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of
10% or more of the Voting Stock of a Person shall be deemed to be control.



     “Authenticating Agent” means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.



     “Board of Directors” means the board of directors of the Company or any
duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.



     “Board Resolution” means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, or (2) a certificate signed by the director or directors and/or
officer or officers to whom the Board of Directors or any duly authorized
committee of that board shall have duly delegated its authority, in each case
delivered to the Trustee for the Securities of any series.



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



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



     “Company” means Peabody Energy Corporation, and any and all successors
thereto.



     “Company Request” and “Company Order” mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the
Board, the President or a Vice President (any reference to a Vice President of
the Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or a word or words added before or after
the title “Vice President”), and by the Chief Financial Officer, Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.



     “Corporate Trust Office” of the Trustee means the corporate trust office
of the Trustee at which at any particular time its administration of this
Indenture shall be principally administered,



2









 




which office as of the date hereof
is located at Goodwin Square, 225 Asylum Street, Hartford, Connecticut 06103,
Attention: Corporate Trust Services.




     “Covenant Defeasance Option” has the meaning specified in Section 13.02.



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



     “Defaulted Interest” has the meaning specified in Section 3.08.



     “Discharged” has the meaning specified in Section 13.02.



     “Eligible Guarantors” means the Company’s domestic Subsidiaries.



     “Event of Default” has the meaning specified in Article Five.



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



     “Global Security” means a Security evidencing all or part of a series of
Securities, including, without limitation, any temporary or permanent Global
Securities.



     “Guarantee” has the meaning specified in Section 14.02.



     “Guarantor” has the meaning specified in Section 3.01.



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



     “Indenture” means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the form and terms of particular series of Securities established as
contemplated hereunder; provided, however, that if at any time more than one
Person is acting as Trustee under this instrument, “Indenture” shall mean with
respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such person is Trustee
established as contemplated by Section 3.01, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.



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



     “Interest Payment Date” means the Stated Maturity of an installment of
interest on the Security (in the case of an interest-bearing Security).



     “Legal Defeasance Option” has the meaning specified in Section 13.02.



3









 





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



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



     “Officers’ Certificate” means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Chief Financial Officer,
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.



     “Opinion of Counsel” means a written opinion of counsel who is reasonably
acceptable to the Trustee, who may (except as otherwise expressly provided in
this Indenture) be counsel for the Company. The counsel may be an employee of
or counsel to the Company, any Subsidiary of the Company or the Trustee.



     “Original Issue Discount Security” means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.02.



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




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




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




          (iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture;


provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee established to the satisfaction of the Trustee the pledgee’s right
so to




4









 







act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor.





     In determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for
such purpose 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 the
acceleration of the maturity thereof pursuant to Section 5.02.



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



     “Person” means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof, and shall include any syndicate or group that would be
deemed to be a person under Section 13(d)(3) of the Exchange Act.



     “Redemption Date” when used with respect to any Security to be redeemed
means the date fixed for such redemption by or pursuant to the Board Resolution
or supplemental indenture establishing the series of Securities of which the
Security to be redeemed is a member.



     “Redemption Price” when used with respect to any Security to be redeemed
means the price at which it is to be redeemed pursuant to the Board Resolution
or supplemental indenture establishing the series of Securities of which the
Security to be redeemed is a member.



     “Regular Record Date” for the interest payable on any Interest Payment Date (in the case of an
interest-bearing Security) means such date or dates as may be fixed for such
purpose in the Board Resolution or supplemental indenture establishing the
series of Securities of which the Security is a member.



     “Responsible Officer” when used with respect to the Trustee means any
officer in the Corporate Trust Office of the Trustee and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer’s knowledge of and familiarity with
the particular subject.



     “Securities” has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one
Person acting as Trustee under this instrument, “Securities” with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this instrument and shall more particularly mean
Securities authenticated and delivered under this instrument, exclusive,
however of Securities of any series as to which such Person is not Trustee.



     “Security Register” and “Security Registrar”, have the meanings specified
in Section 3.05.



5









 





     “Significant Subsidiary” means any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Indenture.



     “Special Record Date” for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.08.



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



     “Subsidiary” means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the outstanding
voting stock is owned, directly or indirectly, by the Company or by one or more
Subsidiaries, or by the Company and one or more Subsidiaries and (ii) any
partnership (a) the sole general partner or the managing general partner
of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person or of one or more Subsidiaries of
such Person (or any combination thereof). For the purposes of this definition
only, “voting stock” means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.



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



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force and effect at the date as
of which this instrument was executed, except as provided in Section 9.03.



     “United States” means the United States excluding its territories and
possessions.



     “U.S. Depositary” means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be designated by the Corporation pursuant to Section 3.01, until a
successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “U.S. Depositary” shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, “U.S. Depositary” as used with respect to
the Securities of any series shall mean the U.S. Depositary with respect to the
Securities of that series.



     “U.S. Government Obligations” has the meaning specified in Section 13.02.



     “Voting Stock” of a corporation means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).



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



     SECTION 1.02. Acts of Holders.



     (a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company and any agent of the Trustee or the Company, if made in the
manner provided in this Section.



     (b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or association
or a member of a partnership or an official of a public or governmental body,
on behalf of such corporation, association, partnership, or public or
governmental body or by a fiduciary, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution by any Person of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine.



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



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



ARTICLE TWO




Security Forms




     SECTION 2.01. Forms Generally. The Securities of each series shall be in
substantially such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed



7









 




thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may, consistently herewith, 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 Trustee’s Certificate of Authentication. The
Trustee’s certificate of authentication on all Securities shall be in
substantially the following form:



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



	 	 	 	 	 
	

	 	 	 	US Bank National Association,

as Trustee
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Authorized Signatory
	 
	 	 	 	 
	

	 	Dated:	 	 
	

	 	 	 	








     SECTION 2.03. Securities in Global Form. If any Security of a series is
issuable in global form, such Global Security may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee and in such manner as shall be specified
in such Global Security. Any instructions by the Company with respect to a
Global Security, after its initial issuance, shall be in writing but need not
comply with Sections 15.05 or 15.06.



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



ARTICLE THREE




The Securities




     SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.



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     The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,




          (1) the title of the Securities of the series, including CUSIP
Numbers (which shall distinguish the Securities of the series from all
other Securities);




          (2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.05, 3.06, 3.07, 9.04 or
11.03);




          (3) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;




          (4) the rate or rates at which the Securities of the series shall
bear interest, or the method by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
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;




          (5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee, where the principal of (and
premium, if any) and interest on Securities of the series shall be
payable; the extent to which, or the manner in which, any interest
payable on any Global Security on an Interest Payment Date will be paid,
if other than in the manner provided in Section 3.08; and the manner in
which any principal of, or premium, if any, on, any Global Security will
be paid, if other than as set forth elsewhere herein;




          (6) 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 Company, pursuant to
any sinking fund or otherwise;




          (7) the obligation, if any, of the Company 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 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;




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




          (9) 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
5.02 or provable in bankruptcy pursuant to Section 5.03;



9









 






          (10) any Events of Default with respect to the Securities of a
particular series, if not set forth herein or if other than as set forth
herein;




          (11) the extent to which the defeasance provisions of this Indenture
do not apply to the Securities of the series;




          (12) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such
case, the U.S. Depositary for such Global Security or Securities; the
manner in which and the circumstances under which Global Securities
representing Securities of the series may be exchanged for Securities in
definitive form, if other than, or in addition to, the manner and
circumstances specified in Section 3.07;




          (13) the ranking of the Securities of such series, if other than on
a parity with all other unsecured, unsubordinated indebtedness of the
Company;




          (14) provisions, if any, with regard to the conversion or exchange
of the Securities of such series, at the option of the Holders thereof or
the Company, as the case may be, for or into new Securities of a
different series or common stock or other securities of the Company;




          (15) which, if any, of the Eligible Guarantors shall guarantee the
Securities on the terms set forth in Article Fourteen (each of the
Eligible Guarantors that guarantee the Debt Securities set forth in
Article Fourteen, if any, a “Guarantor”);




          (16) the ranking of the obligations of each Guarantor under its
respective Guarantee, if other than on parity with all other unsecured,
unsubordinated indebtedness of such Guarantor;




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




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



     All Securities of any one series shall be substantially identical except
as to denomination and 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 3.02. Denominations. The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. 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 integral multiple thereof.



     SECTION 3.03. Authentication and Dating. At any time and from time to
time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company to the Trustee for
authentication. Except as otherwise provided in this Article Three, the
Trustee shall thereupon authenticate and deliver said Securities to or upon a



10









 




Company Order, signed by two Officers of the Company by manual or facsimile
signature. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall receive, and (subject to Section 6.01) shall be fully protected
in relying upon:





          (1) a copy of any Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant
secretary of the Company;




          (2) an executed supplemental indenture, if any;




          (3) an Officers’ Certificate; and




          (4) an Opinion of Counsel, which shall also state:




               (a) that the form of such Securities has been established by
or pursuant to a Board Resolution or by a supplemental indenture as
permitted by Section 2.01 in conformity with the provisions of this
Indenture;




               (b) that the terms of such Securities have been established by
or pursuant to a Board Resolution or by a supplemental indenture as
permitted by Section 3.01 in conformity with the provisions of this
Indenture;




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




               (d) that all laws and requirements in respect of the execution
and delivery by the Company of the Securities have been complied
with and that authentication and delivery of the Securities by the
Trustee will not violate the terms of the Indenture.



     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 or if the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability to existing Holders.



     Each Security shall be dated the date of its authentication.



     Reference is made to Section 14.05 concerning execution and delivery of
the Guarantees.



     SECTION 3.04. Execution of Securities. The Securities shall be signed in
the name and on behalf of the Company by the manual or facsimile signatures of
two Officers of the Company (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise). Only such Securities as shall
bear thereon a certificate of authentication substantially in the form



11









 




hereinbefore recited, executed by the Trustee, 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 Company 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.




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



     Reference is made to Section 14.05 concerning execution and delivery of
the Guarantees.



     SECTION 3.05. Exchange and Registration of Transfer of Securities.
Securities of any series may be exchanged for a like aggregate principal amount
of Securities of the same series of other authorized denominations. Securities
to be exchanged shall be surrendered at the office or agency to be maintained
by the Company, as provided in Section 10.02. The Trustee is hereby appointed
“Security Registrar” for the purpose of the registration of Securities and of
transfer of Securities in the Security Register as herein provided. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register for each series of Securities issued hereunder (hereinafter
collectively referred to as the “Security Register”) in which, subject to such
reasonable regulations at it may prescribe, the Company shall provide for the
registration of Securities and the transfer of Securities as in this Article
Three provided. The Security Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time.
Upon due presentment for registration of transfer of any Security of any series
at such office or agency, the Company shall execute and the Trustee shall
register, authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series for an equal aggregate
principal amount.



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



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



     The Company shall not be required to exchange or register the transfer of
(a) any Securities of any series for a period of 15 days preceding the first
mailing or publication 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 to be redeemed in part, the
portion thereof not so to be redeemed.



12









 





     SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities. In case
any temporary or definitive Security shall become mutilated or be destroyed,
lost or stolen, the Company in the case of a mutilated Security shall, and in
the case of a lost, stolen or destroyed Security may in its discretion,
execute, and upon its request the Trustee shall authenticate and deliver, a new
Security of the same series bearing a number, letter or other distinguishing
symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen, or if any such Security shall have matured or shall
be about to mature, instead of issuing a substituted Security, the Company may
pay or authorize the payment of the same without surrender thereof (except in
the case of a mutilated Security). In every case the applicant for a
substituted Security shall furnish to the Company and to the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.



     The Trustee may authenticate any such substituted Security and deliver the
same upon the written request or authorization of any Officer of the Company.
Upon the issuance of any substituted Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith
and in addition a further sum not exceeding two dollars for each Security so
issued in substitution.



     Every substituted Security issued pursuant to the provisions of this
Section 3.06 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.



     SECTION 3.07. Temporary Securities. Pending the preparation of definitive Securities of any series the
Company may execute and the Trustee shall authenticate and deliver temporary
Securities (printed or lithographed). Temporary Securities shall be issuable
in any authorized denomination and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Every such temporary Security shall be executed by the Company and shall be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive Securities. Without
unreasonable delay the Company will execute and deliver to the Trustee
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefore, at the
Corporate Trust Office of the Trustee, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities an equal aggregate principal
amount of definitive Securities. Such exchange shall be made by the Company at
its own expense and without any charge therefor except that in case of any such
exchange involving any registration of transfer the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary



13









 




Securities shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.




     If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with Section 3.03 and the Company Order with respect to
such series, authenticate and deliver one or more Global Securities in
temporary or permanent form that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the U.S. Depositary for such Global
Security or Securities or the nominee of such depositary, and (iii) shall bear
a legend substantially to the following effect: “This Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary, unless and until this Security is
exchanged in whole or in part for Securities in definitive form” and such other
legend as may be required by the U.S. Depositary.



     Notwithstanding any other provision of this Section or Section 3.05,
unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the U.S.
Depositary for such series to a nominee of such depositary or by a nominee of
such depositary to such depositary or another nominee of such depositary or by
such depositary or any such nominee to a successor U.S. Depositary for such
series or a nominee of such successor depositary.



     If at any time the U.S. Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as U.S. Depositary for
the Securities of such series or if at any time the U.S. Depositary for
Securities of a series shall no longer be a clearing agency registered and in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary with respect to the Securities of such series. If a successor U.S.
Depositary for the Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such condition, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.



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



14









 





     If the Securities of any series shall have been issued in the form of one
or more Global Securities and if an Event of Default with respect to the
Securities of such series shall have occurred and be continuing, the Company
will promptly execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.



     If specified by the Company pursuant to Section 3.01 with respect to
Securities of a series, the U.S. Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series in definitive form on such terms as
are acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and deliver, without charge:




          (1) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person’s beneficial interest in the Global Security;
and




          (2) to the U.S. Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.



     Upon the exchange of a Global Security in whole for Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Securities so issued in exchange for a Global Security shall be registered in
such names and in such authorized denominations as the U.S. Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are so
registered.



     SECTION 3.08. Payment of Interest; Interest Rights Preserved. Interest on
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security is registered at the close of business on the Regular Record Date for
such interest.



     Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date or within 30 days thereafter
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:




          (1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted



15









 






Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears
in the Security Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at least
once in a newspaper, customarily published in the English language on
each Business Day and of general circulation in the Borough of Manhattan,
The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Securities are registered
on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).




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



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



     SECTION 3.09. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee, the Authenticating Agent and any agent of the Company
or the Trustee may treat the Person in whose name the Security is registered as
the owner of such Security for the purpose of receiving payment of principal
of, and (subject to Section 3.08) interest on, such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee, the Authenticating Agent nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.



     SECTION 3.10. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and Securities surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in



16









 




lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of by the Trustee in its customary manner.




     SECTION 3.11. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.01 for Securities of any Series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.



     SECTION 3.12. CUSIP Numbers. The Company in issuing the Securities may
use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall
use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the “CUSIP”
numbers.



ARTICLE FOUR




Satisfaction and Discharge




     SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when:




          (1) either:




               (A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.06 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.03) have been delivered to
the Trustee for cancellation; or




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




                    (i) have become due and payable, or




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




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



17









 






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




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




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



Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and the
obligations of the Trustee to any Authenticating Agent under Section 6.14 shall
survive such satisfaction and discharge.



     SECTION 4.02. Application of Trust Money. All money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to
the extent required by law.



ARTICLE FIVE




Remedies




     SECTION 5.01. Events of Default.



     “Events
of Default”, wherever used herein with respect to Securities of
any series, means any one of the following events and such other events as may
be established with respect to the Securities of that series as contemplated by
Section 3.01 hereof (whatever the reasons for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):




          (a) default in the payment of any installment of interest upon any
Security of that 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 any of the principal of and premium,
if any, on any Security of that series as and when the same shall become
due and payable, either at Maturity, upon redemption, by declaration,
repayment or otherwise; or



18









 






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




          (d) failure on the part of the Company or a Guarantor duly to
observe or perform any other of the covenants or agreements on the part
of the Company or a Guarantor in this Indenture (other than those set
forth exclusively in the terms of any particular series of Securities
established as contemplated in this Indenture) continued for a period of
60 days after the date on which written notice of such failure, requiring
the Company or a Guarantor to remedy the same, shall have been given to
the Company or a Guarantor by the Trustee, or to the Company or a
Guarantor and the Trustee by the Holders of at least 25 percent in
aggregate principal amount of the Securities of such series at the time
Outstanding, and stating that such notice is a “Notice of Default”
hereunder; or




          (e) the commencement by the Company or any Significant Subsidiary of
the Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary of a voluntary case or proceeding
under any applicable U.S. federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary to the
entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary of the Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case or proceeding
under any applicable U.S. federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any
Significant Subsidiary of the Company or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary, or the
filing by the Company or any Significant Subsidiary of the Company or any
group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable U.S. federal or state law,
or the consent by the Company or any Significant Subsidiary of the
Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary to the filing of such petition or to
the appointment of or the taking possession by a custodian of the Company
or any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary or of
any substantial part of their properties, or the making by the Company or
any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary of an
assignment for the benefit of creditors, or the admission by the Company
or any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary in
writing of their inability to pay its debts generally as they become due,
or the taking of corporate action by the Company or any Significant
Subsidiary of the Company or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary expressly in furtherance
of any such action; or



19









 






          (f) a Guarantee of a Security of that series (other than in
accordance with the terms of the Guarantee) shall be held in any judicial
proceeding to be unenforceable or invalid.



     SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default described in Section 5.01 (other than in clause (e)
with respect to the Company) or established pursuant to Section 3.01 with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities of such series shall have already become due and payable, either
the Trustee or the Holders of not less than 25 percent in aggregate principal
amount of the Securities of such series then Outstanding hereunder, by notice
in writing to the Company (and to the Trustee if given by Holders), may declare
the principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all the Securities of such series plus accrued
and unpaid interest to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Securities of such series contained to the
contrary notwithstanding. If an Event of Default described in clause (e) in
respect of the Company occurs and is continuing, then and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, the principal amount of all the Securities of each series then
Outstanding hereunder (or, if any Securities are Original Issue Discount
Securities, such portion of the principal amount as may be
specified in the terms thereof) plus any accrued and unpaid interest shall
become immediately due and payable. The foregoing provisions are, however,
subject to the condition that if, at any time after the principal amount (or,
if the Securities of that series are Original Issue Discount Securities, such
portion of the principal amounts as may be specified in the terms of that
series) of the Securities of any series (or of all the Securities, as the case
may be) shall have been declared or become due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of such series (or of all the Securities, as the case may
be) and the principal of and premium, if any, on any and all Securities of such
series (or of all the Securities, as the case may be) that shall have become
due otherwise than by acceleration (with interest on overdue installments of
interest, to the extent that payment of such interest is enforceable under
applicable law, and on such principal and premium, if any, at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by the Securities of such series (or at the rates of interest
or Yields to Maturity of all the Securities, as the case may be), to the date
of such payment or deposit) and the reasonable expenses of the Trustee, and any
and all defaults under this Indenture, other than the nonpayment of principal
of or premium, if any, or accrued interest on Securities of such series (or of
all the Securities, as the case may be) which shall have become due by
acceleration, shall have been cured or waived pursuant to Section 5.08, then
and in every such case the Holders of a majority in aggregate principal amount
of the Securities of such series (or of all the Securities, as the case may be)
then Outstanding, by written notice to the Company and to the Trustee, may
waive all defaults with respect to that series (or with respect to all
Securities, as the case may be) and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right consequent
thereon.



20









 





     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 because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or to such Holder, then and
in every such case the Company and the Trustee and the Holders shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee and the Holders
shall continue as though no such proceeding had been taken.



     SECTION 5.03. Payment of Securities on Default; Suit Therefor.



     The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Securities of any series
as and when the same shall 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 the principal of and premium, if any, on any of the Securities of
any series as and when the same shall become due and payable, whether at
maturity of the Securities of that series or upon redemption or by declaration,
repayment or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the Holders of the Securities of that
series, the whole amount that then shall have become due and payable on all
such Securities of that series for principal and premium, if any, or interest,
or both, as the case may be, with interest upon the overdue principal and (to
the extent that payment of such interest is enforceable under applicable law) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) borne by the Securities of that 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, its agents, attorneys and counsel, and any expenses or liabilities
incurred by the Trustee hereunder other than through its negligence or bad
faith.



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



     In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities of any
series under any applicable bankruptcy, insolvency or similar law, or in case a
receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities of any series, or
to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Securities of any series 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 5.03 shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal (and premium, if any) and interest
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that



21









 




series) owing and unpaid in respect of the Securities of any series and, in
case of any judicial proceedings, to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee and of the Holders allowed in such judicial proceedings relative to
the Company or any other obligor on the Securities of any series, its or their
creditors, or its or their property, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by
each of the Holders to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for compensation and expenses,
including counsel fees and expenses incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses and counsel fees and expenses out of the estate in any such
proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, moneys, securities and other property which the Holders of the
Securities of any series may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.




     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 proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the Holders of all the Securities in respect of
which such action was taken.



     SECTION 5.04. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee under this Article Five shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:




          First: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad
faith;




          Second: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall not have become
due and be unpaid, to the payment of interest on the Securities of that
series, 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 rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by the Securities of that series, such payments to be
made ratably to the persons entitled thereto;




          Third: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become due,
by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon the Securities of that series for principal and
premium, if any, and interest, with interest on the overdue



22









 






principal and premium, if any, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the rate or
Yield to Maturity (in the case of Original Issue Discount Securities)
borne by the Securities of that series; and in case such moneys shall be
insufficient to pay in full the whole amounts so due and unpaid upon the
Securities of that series, then to the payment of such principal and
premium, if any, and interest without preference or priority of principal
and premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other
installment of interest, or of any Security of that series over any other
Security of that series, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest; and




          Fourth: Any surplus then remaining shall be paid to the Company,
its successors or assigns, or to whomsoever may be entitled to receive
the same.



     SECTION 5.05. Proceedings by Holders. No Holder of any Security of any
series shall have any right by virtue of or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, 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 percent
in aggregate principal amount of the Securities of that series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such indemnity reasonably satisfactory to the Trustee 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 neglected or refused to institute any such
action, suit or proceeding and during such 60-day period, no direction
inconsistent with such written request has been given to the Trustee by the
Holders of a majority in aggregate principal amount of the Securities of that
series then Outstanding (or such amount as shall have acted at a meeting
pursuant to the provisions of this Indenture), 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 shall have any right in any manner whatever by virtue of or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holder, 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 such Holders.



     Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security to receive payment of the principal of and
premium, if any, and interest on such Security, on or after the respective due
dates 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 written consent of such Holder.



     SECTION 5.06. Proceedings by Trustee. In case of an Event of Default
hereunder 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 necessary to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding 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 5.07. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Holders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof
or of any other powers and remedies available to the Trustee or the Holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any Holder to exercise any right or power
accruing upon any default occurring and continuing as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
5.05, every power and remedy given by this Article Five or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders.



     SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority
of Holders. The Holders of a majority in aggregate principal amount of the
Securities of any series 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; provided, however, that
(subject to the provisions of Section 6.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith shall determine that the action or proceedings
so directed would involve the Trustee in personal liability. Subject to
Section 5.02, the Holders of a majority in aggregate principal amount of the
Securities of that series at the time Outstanding may on behalf of the Holders
of all of the Securities of that series waive any past default or Event of
Default described in Section 5.01, or any other Event of Default for such
series specified in the terms thereof as contemplated by Section 3.01, and its
consequences except a default in the payment of interest, or premium, if any,
on, or the principal of any of the Securities or a default which, under Section
9.02, cannot be modified or amended without the consent of each Holder of each
Security affected by such waiver. Upon any such waiver the Company, the
Trustee and the Holders of the Securities of that series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.08, said
default or Event of Default shall for all purposes of the Securities of that
series and this Indenture be deemed to have been cured and to be not
continuing.



     SECTION 5.09. 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 assess
reasonable costs, including reasonable attorneys’ fees and expenses, 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 5.09 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder of the Securities of any series or group of such
Holders, holding in the aggregate more



24









 




than ten percent in principal amount of
the Outstanding Securities of that series or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or premium, if
any, or interest on any Security against the Company on or after the due date
expressed in such Security.




ARTICLE SIX




The Trustee




     SECTION 6.01. Certain Duties and Responsibilities.



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




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




          (2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they substantially conform to the requirements
of this Indenture (but needs not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).



     (b) In case an Event of Default actually known to a Responsible Officer of
the Trustee with respect to the Securities of a series has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to such series, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.



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




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




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




          (3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.08 relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture; and



25









 






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



     (d) The Trustee shall not be obligated to pay interest on any money or
other assets received by it unless otherwise agreed with the Company. Assets
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.



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



     SECTION 6.02. Notice of Defaults.



     Within 90 days after the occurrence of any default with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of that Series, as their names and addresses appear in the Security
Register, notice of all defaults with respect to that Series actually known to
a Responsible Officer of the Trustee, unless such defaults shall have been
cured or waived before the giving of such notice; provided, however, that,
except in the case of a default in the payment of the principal of or premium,
if any, or interest on any of the Securities of such series or in the making of
any sinking fund payment with respect to such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders. For the purpose of this Section,
the term “default” means any event which is, or after notice or lapse of time
or both would become, an Event of Default.



     SECTION 6.03. Certain Rights of Trustee.



     Except as otherwise provided in Section 6.01:




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




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




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




          (d) the Trustee may consult with the counsel of its own selection
and the advice of such counsel or any Opinion of Counsel shall be full
and complete



26









 






authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;




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




          (f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney at the expense of the Company and shall incur no
liability of any kind by reason of such inquiry or investigation;




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




          (h) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee pursuant to Section 15.02, and
such notice references the Securities and this Indenture; and




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




          (j) the Trustee may request that the Company deliver an Officers’
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.



     SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities, except the Trustee’s
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee and any Authenticating Agent assume no responsibility for their
correctness. The Trustee and any Authenticating Agent make no representations
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 Company of
the Securities or the proceeds thereof.



27









 





     SECTION 6.05. May Hold Securities.



     The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or
any other agent of the Company or of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar, Authenticating Agent or such other agent.



     SECTION 6.06. Money Held in Trust.



     Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.



     SECTION 6.07. Compensation and Reimbursement.



     The Company agrees:




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




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




          (3) to fully indemnify the Trustee, any predecessor Trustee and
their agents for, and to hold them harmless against, any and all loss,
liability, claim, damage, taxes (other than taxes based upon the income
of the Trustee) or expense (including legal fees and expenses) incurred
without negligence or willful misconduct on their part, arising out of or
in connection with the acceptance or administration of this trust,
including the costs and expenses of defending themselves against any
claim (whether asserted by the Company, or any Holder or any other
Person) or liability in connection with the exercise or performance of
any of their powers or duties hereunder.



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



     When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(e), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute



28









 




expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.




     The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.



     SECTION 6.08. Disqualification; Conflicting Interests.



     The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded
Securities of any particular series of Securities other than that series.



     SECTION 6.09. Corporate Trustee Required; Eligibility.



     There shall at all times be a Trustee hereunder which shall be:




          (1) a corporation organized and doing business under the laws of the
United States of America, any state thereof, or the District of Columbia,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by Federal or State authority, or




          (2) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as a Trustee
pursuant to a rule, regulation, or other order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional
trustee,


having a combined capital and surplus of at least $50,000,000 and having a
corporate trust office in the Borough of Manhattan, the City of New York, or
such other city as contemplated by Section 3.01 with respect to any series of
Securities. If such corporation publishes reports of condition at least
annually, pursuant to law or to requirements of the aforesaid 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. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under the common control with the Company shall
serve as Trustee for the Securities. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereunder specified in this
Article.




     SECTION 6.10. Resignation and Removal; Appointment of Successor.



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



29









 





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



     (c) The Holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or all series
at the time Outstanding may at any time remove the Trustee with respect to the
applicable series or all series, as the case may be, and by written notice of
such action to the Company, the Trustee and the successor Trustee, nominate
with respect to the applicable series or all series, as the case may be, a
successor Trustee, which shall be deemed appointed as successor Trustee with
respect to the applicable series unless within ten days after such nomination
the Company objects thereto, in which case the Trustee so removed or any Holder
of Securities of the applicable series who has been a bona fide holder of a
Security or the applicable series for at least six months may, subject to the
provisions of Section 5.09 on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.



     (d) If at any time:




          (1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 6.08 hereof after written request
therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, unless the Trustee’s duty to
resign is stayed in accordance with the provisions of Section 310(b) of
the Trust Indenture Act, or




          (2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or




          (3) the Trustee shall become incapable of acting, or a decree or
order for relief by a court having jurisdiction in the premises shall
have been entered in respect of the Trustee in an involuntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State, bankruptcy, insolvency or similar law;
or a decree or order by a court having jurisdiction in the premises for
the appointment of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of the Trustee or of its property,
or for the winding up of its affairs shall have been entered, or




          (4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or shall consent
to the appointment of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become due, or corporate action shall be taken by the
Trustee in furtherance of any such action,



30









 




then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.09, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.




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



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



     SECTION 6.11. Acceptance of Appointment by Successor.



     Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its lien, if any, provided for in
Section 6.07. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.



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



31









 




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 trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such trustee.




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



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



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



     SECTION 6.13. Preferential Collection of Claims Against Company.



     (a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (c) of this Section:




          (1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a petition
in bankruptcy had been filed by or against the Company upon the date of
such default; and




          (2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such proceeds.



          Nothing herein contained, however, shall affect the right of the Trustee:



32









 






               (A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (iii)
distributions made in cash, securities or other property in respect
of claims filed against the Company in bankruptcy or receivership
or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other
Federal or State bankruptcy, insolvency or similar law;




               (B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held
prior to the beginning of such three-month period;




               (C) to realize, for its own account, but only to the extent of
the claim hereinafter or mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received
as security therefor simultaneously with the creation thereof, and
if the Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable cause
to believe that a default as defined in Subsection (c) of this
Section would occur within three months; or




               (D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security
for such claim as provided in paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.



     For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.



     If the Trustee shall be required to set aside and hold such a special
account, the funds and property held in such special account and the proceeds
thereof shall be apportioned between the Trustee, the Holders and the holders
of other indenture securities in such manner that the Trustee, the Holders and
the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law, but after crediting



33









 




thereon receipts on account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from funds and property so held in
such special account. As used in this paragraph, with respect to any claim,
the term “dividends” shall include any distribution with respect to such claim,
in bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion between
the Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee and the Holders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provision of this
paragraph as a mathematical formula.




     Any Trustee which has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:




                    (i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the
beginning of such three-months period; and




                    (ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.



     (b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:




          (1) the ownership or acquisition of securities issued under any
indenture, or any securities or securities having a maturity of one year
or more at the time of acquisition by the Trustee;




          (2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property that shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the time and in
the manner provided in this Indenture;



34









 






          (3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;




          (4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of
this Section;




          (5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company or an obligor under the Securities; or




          (6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations that fall within
the classification of self-liquidating paper as defined in Subsection (c)
of this Section.



     (c) For the purpose of this Section only:




          (1) The term “default” means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due
and payable.




          (2) The term “other indenture securities” means securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.




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




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




          (5) The term “Company” means any obligor upon the Securities.



     SECTION 6.14. Appointment of Authenticating Agent.



     At any time when any of the Securities remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to



35









 




authenticate Securities issued upon exchange, transfer
or partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a bank or trust company or corporation organized and doing business
and in good standing under the laws of the United States of America, or of any
State, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $1,500,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
In case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.




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



     An Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail notice of such
appointment to all Holders, as their names and addresses appear on the Security
Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.



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



     If an appointment is made pursuant to this Section, the Securities shall
have endorsed thereon, in addition to the Trustee’s Certificate, an alternate
Trustee’s Certificate in the following form:



     This is one of the Securities described in the within-mentioned Indenture.



36









 





	 	 	 	 	 
	

	 	 	 	US Bank National Association,

as Trustee
	 
	 	 	 	 
	

	 	By	 	 
	

	 	 	 	

	

	 	 	 	Authenticating Agent
	 
	 	 	 	 
	

	 	By	 	 
	

	 	 	 	

	

	 	 	 	Authorized Signatory
	 
	 	 	 	 
	

	 	Dated:	 	 
	

	 	 	 	








ARTICLE SEVEN




Holder’s Lists and Reports by Trustee and Company




     SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.



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




          (a) semi-annually (and not more than 15 days after each Regular
Record Date of each series of Securities having such a Regular Record
Date), a list, in such form as the Trustee may reasonable require, of the
names and addresses of the Holders as of such Regular Record Date, and




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


excluding from any such list names and addresses received by the Trustee in the
capacity of Security Registrar if the Trustee is then acting in such capacity.




     SECTION 7.02. Preservation of Information; Communications to Holders.



     (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in the capacity of Security
Registrar if the Trustee is then acting in such capacity. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished.



     (b) If three or more Holders (hereinafter referred to as “applicants”)
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to



37









 




their rights under this Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either:





                    (i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.02(a), or




                    (ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with Section 7.02(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.



     If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.02(a), a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interests of the
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.



     (c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
7.02(b).



     SECTION 7.03. Reports by Trustee.



     (a) Within 60 days after March 15 of each year commencing with the year
2005, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of March 15
with respect to any of the following events which may have occurred within the
prior 12 months (but if no such event has occurred within such period no report
need be transmitted):



38









 






          (1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;




          (2) the creation of any material change to a relationship specified
in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture
Act;




          (3) the character and amount of any advances (and if the Trustee
elects so to state the circumstances surrounding the making thereof) made
by the Trustee (as such) that remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Outstanding Securities on the date of such report;




          (4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);




          (5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;




          (6) any additional issue of Securities which the Trustee has not
previously reported; and




          (7) any action taken by the Trustee in the performance of its duties
hereunder that it has not previously reported and that in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in
accordance with Section 6.02.



     (b) The Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of the last report transmitted
pursuant to Subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities, on property or funds held or collected by it as Trustee, and
which it has not previously reported pursuant to this Subsection, except that
the Trustee shall not be required (but may elect) to report such advances if
such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Outstanding Securities at such time, such report to be
transmitted within 90 days after such time.



     (c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which the
Securities are listed and also with the Commission. The Company will notify
the Trustee when the Securities are listed on any securities exchange.



39









 





     SECTION 7.04. Reports by Company.



     The Company will:




          (1) file with the Trustee, within 15 days after the Company files
them with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; provided, however, that the Company shall not be
required to deliver to the Trustee any materials for which the Company
has sought and obtained confidential treatment from the Commission; or,
if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in respect
of a security listed and registered on a National Securities Exchange as
may be prescribed from time to time in such rules and regulations;




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




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



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



ARTICLE EIGHT




Consolidation, Merger, Sale, Conveyance or Lease




     SECTION 8.01. Consolidations and Mergers of Company and Conveyances
Permitted Subject to Certain Conditions.



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



40









 




convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:





          (1) in the event that the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall be a
corporation organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and, if
the entity surviving such transaction or transferee entity is not the
Company, then such surviving or transferee entity shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and premium, if any, and interest, if any, on
all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;




          (2) at the time of consummation of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and




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



     SECTION 8.02. Rights and Duties of Successor Corporation.



     Upon any consolidation or merger by the Company with or into any other
corporation or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety to any Person, in accordance with
Section 8.01, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease to another Person, the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the
Securities.



     Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate
and shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this



41









 




Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.




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



     SECTION 8.03. Officers’ Certificate and Opinion of Counsel.



     The Trustee, subject to the provisions of Section 6.01, shall be provided
with an Officers’ Certificate and an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article Eight.



ARTICLE NINE




Supplemental Indentures




     SECTION 9.01. Supplemental Indentures without Consent of Holders. The
Company, when authorized by a Board Resolution, Guarantors, if any, when
authorized by a Board Resolution, Guarantors, if any, when authorized by a
Board Resolution, 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 evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company hereunder and
the Securities or the Guarantees, if any; or




          (b) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities any property or assets which the Company
may desire; or




          (c) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit
of less than all series of Securities stating that such covenants are
expressly being included solely for the benefit of such series) as the
Board of Directors of the Company and the Trustee shall consider to be
for the protection of the Holders of such Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions or conditions a default or an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition 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 default or may limit the remedies available to the
Trustee upon such default; or




          (d) to provide for the issuance under this Indenture of Securities
in coupon form (including Securities registrable as to principal only)
and to provide for



42









 






exchangeability of such Securities with the Securities
issued hereunder in fully registered form and to make all appropriate
changes for such purpose; or




          (e) to establish the form or terms of Securities or the Guarantees,
if any, of any series as permitted by Sections 2.01 and 3.01; or




          (f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that 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 that shall not
adversely affect the interests of any Holder in any material respect; or




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




          (h) to surrender any right or power herein conferred upon the
Company;




          (i) to comply with the requirements of the Commission in order to
maintain the qualification of this Indenture under the Trust Indenture
Act; or




          (j) to add or modify any other provisions with respect to matters or
questions arising under this Indenture which the Company and the Trustee
may deem necessary or desirable; provided, however, that such action
pursuant to this clause (j) does not, in the good faith opinion of the Board of Directors of the Company (as
evidenced by a Board Resolution) and the Trustee, adversely affect the
interests of any Holder of Securities in any material respect; or




          (k) to modify the covenants or Events of Default solely in respect
of, or add new covenants or Events of Default that apply solely to,
Securities not Outstanding on the date of such supplemental indenture; or




          (l) to provide for Guarantees of the Securities of any series and/or
to specify the ranking of the obligations of each Guarantor under its
respective Guarantee.



     The Trustee is hereby authorized to join with the Company and the
Guarantors, if any, 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, transfer, assignment, mortgage or
pledge of any property thereunder, but the Trustee shall not be obligated to,
but may in its discretion, 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
9.01 may be executed by the Company, the Guarantors, if any, and the Trustee
without the consent of the Holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.




43









 





     SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent (evidenced as provided in Section 1.02) of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture (each series voting separately
as a class), the Company, when authorized by a Board Resolution, the
Guarantors, if any, when authorized by a Board Resolution, 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 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 each such series;
provided, however, that no such supplemental indenture shall (i) change the
Stated Maturity of any Security, or reduce the rate or change the time of
payment of interest thereon, or reduce the principal amount thereof or any
premium thereon, or make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the Securities or
reduce 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 5.02 or the amount thereof provable in bankruptcy pursuant to
Section 5.03 or impair the right to institute suit for enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or adversely affect the right of repayment,
if any, at the option of the Holder without the consent of the Holder of each
Security so affected, (ii) reduce the aforesaid percentage of Securities, the
Holders of which are required to consent to any such supplemental indenture, or
the Holders of which are required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, (iii) modify the obligation of
the Company to
maintain an office or agency pursuant to Section 10.02, or (iv) release
any Guarantor from its obligations under its Guarantee (other than in
accordance with the terms thereof) without the consent of the Holder of each
Security so affected. A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.



     Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid, the
Trustee shall join with the Company and the Guarantors, if any, in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities 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 Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.



     SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Nine shall comply with the Trust Indenture Act of 1939, as then in
effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Nine, this Indenture shall be



44









 





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 Company, and the Holders 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 9.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Nine may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company 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 Company,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.



     SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.



     The Trustee, subject to the provisions of Section 6.01, shall be provided
with an Officers’ Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article Nine.



ARTICLE TEN




Covenants




     SECTION 10.01. Payment of Principal and Interest.



     The Company will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on the Securities in accordance with
the terms of the Securities and this Indenture.



     SECTION 10.02. Maintenance of Office or Agency.



     The Company shall maintain an office or agency where Securities may be
presented or surrendered for payment and an office or agency where Securities
may be surrendered for transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Corporate Trust Office of the Trustee shall be such office of the Company,
and the Trustee shall be the agent of the Company for all of the foregoing
purposes, unless the Company shall designate and maintain some other office or
agency for such purposes and give the Trustee written notice of the location
thereof. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency, the
Corporate Trust Office of the Trustee shall be conclusively deemed to be the
agency of the Company for all such purposes.



45









 





     SECTION 10.03. Money for Security Payments to be Held in Trust.



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



     Whenever the Company shall have one or more Paying Agents it will, prior
to 10:00 am on each due date of the principal of or interest on, any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
or premium, if any, or interest, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal or premium, if any,
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.



     The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:




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




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




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



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



     Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal or premium, if any or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the



46









 





expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company.



     SECTION 10.04. Payment of Taxes and Other Claims.



     The Company will, and will cause any Significant Subsidiary to, promptly
pay and discharge or cause to be paid and discharged all material taxes,
assessments and governmental charges or levies lawfully imposed upon it or upon
its income or profits or upon any of its property, real or personal, or upon
any part thereof, as well as all material claims for labor, materials and
supplies which, if unpaid, might by law become a lien or charge upon its
property;
provided, however, that neither the Company nor any Significant Subsidiary
shall be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge, levy, or claim if the amount, applicability or
validity thereof shall currently be contested in good faith by appropriate
proceedings and if the Company or such Significant Subsidiary, as the case may
be, shall have set aside on its books reserves deemed by it adequate with
respect thereto.



     SECTION 10.05. Maintenance of Properties.



     The Company will maintain and keep its properties and every part thereof
in such repair, working order and condition, and make or cause to be made all
such needful and proper repairs, renewals and replacements thereto, as in the
judgment of the Company are necessary in the interests of the Company;
provided, however, that nothing contained in this Section shall prevent the
Company from selling, abandoning or otherwise disposing of any of its
properties or discontinuing a part of its business from time to time if, in the
judgment of the Company, such sale, abandonment, disposition or discontinuance
is advisable and does not materially adversely affect the interests or business
of the Company.



     SECTION 10.06. Statement as to Default.



     The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company (which as of the date hereof is December 31),
an Officers’ Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company, they would normally have
knowledge of any failure by the Company to comply with all conditions, or any
Default by the Company with respect to any covenants, under this Indenture, and
further stating whether or not they have knowledge of any such failure or
Default and, if so, specifying each such failure or Default and the nature
thereof. In the event an Officer of the Company comes to have actual knowledge
of a Default, regardless of the date, the Company shall deliver an Officers’
Certificate to the Trustee specifying such Default and the nature and status
thereof.



     SECTION 10.07. Corporate Existence.



     Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such



47









 





right or franchise
if the Company determines that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.



     SECTION 10.08. Waiver of Certain Covenants.



     The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 10.04, 10.05 and 10.07 or any
covenant added for the benefit of any series of Securities as contemplated by
Section 3.01, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Securities of such series at the
time Outstanding shall, by Act of such Holders, waive such compliance in such
instance, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.



     SECTION 10.09. Calculation of Original Issue Discount.



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



     SECTION 10.10. Reports.



     (a) The Company shall deliver to the Trustee within 15 days after it files
them with the Commission copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act; provided, however, the Company shall not be required to
deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. The Company also shall
comply with the other provisions of Section 314(a) of the Trust Indenture Act.



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



     (c) If at any time the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a Holder of a Security, the Company will
promptly furnish or cause to be furnished to such Holder or to a prospective
purchaser of such Security designated by such Holder, as the case may be, the
information, if any, required to be delivered by it pursuant to Rule 144A(d)(4)
under the Securities Act of 1933, as amended, to permit compliance with Rule
144A in connection with the resale of such Security.



48









 





ARTICLE ELEVEN




Redemption of Securities




     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 except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.



     SECTION 11.02. Notice of Redemption; Selection of Securities. In case the
Company shall desire to exercise the right to redeem all, or, as the case may
be, any part of the Securities of any series in accordance with their terms, it
shall fix a date for redemption and shall mail or cause to be mailed a notice
of such redemption at least 30 and not more than 60 days prior to the date
fixed for redemption to the Holders of Securities of such series so to be
redeemed as a whole or in part at their last addresses as the same appear on
the Security Register. Such mailing shall be by first class mail. The notice
if mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. In any case,
failure to give such 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.



     Each such notice of redemption shall include CUSIP numbers and specify the
date fixed for redemption, the redemption price at which Securities of such
series are to be redeemed, the place or places of payment, that payment will be
made upon presentation and surrender of such Securities, that any interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date any interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Securities
of a series are to be redeemed the notice of redemption shall specify the
numbers of the Securities of that series to be redeemed. 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 that series in principal amount equal
to the unredeemed portion thereof will be issued.



     Prior to 10:00 am on the redemption date specified in the notice of
redemption given as provided in this Section 11.02, the Company will deposit
with the Trustee or with one or more paying agents an amount of money
sufficient to redeem on the redemption date all the Securities or portions
thereof so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption.



     If all or less than all the Securities of a series are to be redeemed, the
Company will give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount of Securities to be
redeemed and the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate, the Securities of that series or portions thereof
(in multiples of $1,000, except as otherwise set forth in the applicable form
of Security) to be redeemed.



     SECTION 11.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 11.02 or Section 12.03, the
Securities or portions of Securities of the series with respect to which such
notice has been given shall become due and payable on the date and at the place
or places stated in such notice at the applicable redemption



49









 





 price, together
with any interest accrued to the date fixed for
redemption,
and on and after said date (unless the Company shall default
in the payment of such Securities at the applicable redemption price, together
with any interest accrued to said date) any interest on the Securities or
portions of Securities of any series so called for redemption shall cease to
accrue. On presentation and surrender of such Securities at a place of payment
in said notice specified, the said Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable redemption price,
together with any interest accrued thereon to the date fixed for redemption.



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



ARTICLE TWELVE




Sinking Funds




     SECTION 12.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.



     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”.



     SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that series which have been previously
delivered by the Trustee to the Company which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.



     SECTION 12.03. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee a certificate signed by the Treasurer
or any Assistant Treasurer of the Company specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by
delivering or crediting Securities of that series pursuant to Section
12.02 (which Securities will, if not previously delivered, accompany such
certificate) and whether the Company intends to exercise its right to make a
permitted



50









 





optional sinking fund payment with respect to such series. Such
certificate shall also state that no Event of Default has occurred and is
continuing with respect to such series. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment
or payments therein referred to, if any, on or before the next succeeding
sinking fund payment date. In the case of the failure of the Company to
deliver such certificate (or to deliver the Securities specified in this
paragraph), the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 12.02 and without the right to make any
optional sinking fund payment, if any, with respect to such series.



     Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment
is made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the Redemption Price specified in such Securities for
operation of the sinking fund together with accrued interest to the date fixed
for redemption. Any sinking fund moneys not so applied or allocated by the
Trustee to the redemption of Securities shall be added to the next cash sinking
fund payment received by the Trustee for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section
12.03. Any and all sinking fund moneys with respect to the Securities of any
particular series held by the Trustee on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or
redemption of particular Securities shall be applied by the Trustee, together
with other moneys, if necessary, to be deposited sufficient for the purpose, to
the payment of the principal of the Securities of that series at maturity.



     The Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in the last paragraph of Section
11.02 and the Company shall cause notice of the redemption thereof to be given
in the manner provided in Section 11.02 except that the notice of redemption
shall also state that the Securities are being redeemed by operation of the
sinking fund. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section
11.03.



     Prior to 10:00 am on each sinking fund payment date, the Company shall pay
to the Trustee in cash a sum equal to any interest accrued to the date fixed
for redemption of Securities or portions thereof to be redeemed on such sinking
fund payment date pursuant to this Section.



     The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of such Securities by operation of the
sinking fund for such series during the continuance of a default in payment of
interest on such Securities or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to such
Securities, except that if the notice of redemption of any such Securities
shall theretofore have been mailed in accordance with the provisions hereof,
the Trustee shall redeem
such Securities if cash sufficient for that purpose shall be deposited
with the Trustee for that purpose in accordance with the terms of this
Article. 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



51









 





and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of such
Securities; provided, however, that in case such Event of Default or default
shall have cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date for such Securities on which such
moneys may be applied pursuant to the provisions of this Section.



ARTICLE THIRTEEN




Defeasance




     SECTION 13.01. Applicability of Article. The provisions of this Article
shall be applicable to Securities of a series except as otherwise specified
pursuant to Section 3.01 for Securities of such series.



     SECTION 13.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations. At the Company’s option, either (a) the Company shall be deemed
to have been Discharged (as defined below) from its obligations with respect to
Securities of any series (“Legal Defeasance Option”) or (b) the Company shall
cease to be under any obligation to comply with any term, provision or
condition set forth in Sections 8.01, 10.04 and 10.05 with respect to
Securities of any series (and, if so specified pursuant to Section 3.01, any
other obligation of the Company or restrictive covenant added for the benefit
of such series pursuant to Section 3.01) (“Covenant Defeasance Option”) at any
time after the applicable conditions set forth below have been satisfied:




     (1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
U.S. Government Obligations (as defined below) which through the payment
of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient, in the opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge each
installment of principal (including any mandatory sinking fund payments)
of and premium, if any, and interest on, the Outstanding Securities of
such series on the dates such installments of interest or principal and
premium are due;




     (2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 6.08 and for purposes of the Trust Indenture Act with respect to
the Securities of any series;




     (3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;




     (4) no Event of Default or event (including such deposit) which,
with notice or lapse of time or both, would become an Event of Default
with respect to the Securities



52









 






of such series shall have occurred and be
continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under Section 5.01(e) or
event which with the giving of notice or lapse of time, or both, would
become an Event of Default under Section 5.01(e) or Section 5.01(f) shall
have occurred and be continuing on the 91st day after such date; and




     (5) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling from the Internal Revenue Service to the effect that
the Holders of the Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit,
defeasance or Discharge.



     Notwithstanding the foregoing, if the Company exercises its covenant
defeasance option and an Event of Default under Section 5.01(e) or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.01(e) shall have occurred and be continuing on the 91st
day after the date of such deposit, the obligations of the Company referred to
under the definition of covenant defeasance option with respect to such
Securities shall be reinstated.



     “Discharged” means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company’s obligations with respect to the Securities
of such series under Sections 3.05, 3.06, 3.07, 10.02 and 13.03 and to the
Trustee under Section 6.07 and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.



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



     SECTION 13.03. Deposited Moneys and U.S. Government Obligations to Be Held
in Trust. All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 13.02 in respect of Securities of a series shall be
held in trust and applied by it, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as



53









 





the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon for principal (and premium, if any) and interest, if any,
but such money need not be segregated from other funds except to the extent
required by law.



     SECTION 13.04. Repayment to Company.



     Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium or interest
on any Security and remaining unclaimed for two years after such principal and
premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.



ARTICLE FOURTEEN




Guarantees




     SECTION 14.01. Applicability of Article. The provisions of this Article
shall be applicable to each of the Guarantors for the Guarantee of Securities
of a series.



     SECTION 14.02. Guarantee. Each Guarantor of a particular series of
Securities hereby unconditionally guarantees (each such guarantee to be
referred to herein as a “Guarantee”), jointly and severally with each other
Guarantor of the Securities of that series, if any, to each Holder of such
Securities authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and enforceability of
this Indenture, such Securities or the obligations of the Company hereunder or
thereunder, (i) the due and punctual payment of the principal of and any
premium or interest on such Securities, whether at maturity or on an interest
payment date, by acceleration, pursuant to an offer to purchase such Securities
or otherwise, and interest on the overdue principal of and interest, if any, on
such Securities, if lawful, and all other
obligations of the Company to the Holders of such Securities or the
Trustee hereunder or thereunder shall be promptly paid in full, all in
accordance with the terms hereof and thereof including all amounts payable to
the Trustee under Section 6.07 hereof, and (ii) in case of any extension of
time of payment or renewal of any such Securities or any of such other
obligations, the same shall be promptly paid in full when due or to be
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.



     If the Company fails to make any payment when due of any amount so
guaranteed for whatever reason, the Guarantor of the Securities of that series
shall be obligated, jointly and severally with each other Guarantor, if any, to
pay the same immediately. Each Guarantor hereby agrees that its obligations
hereunder shall be continuing, absolute and unconditional,



54









 





irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of the
Securities, this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities or the Trustee with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of such
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, demand of performance, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, the benefit of discussion, protest, notice and all
demand whatsoever and covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in the Securities
guaranteed by such Guarantee, in this Indenture and in this Article Fourteen.
If any Holder of Securities of a series guaranteed hereby or the Trustee is
required by any court or otherwise to return to the Company or any Guarantor of
such Securities, or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any amount paid by
the Company or any Guarantor of such Securities to the Trustee or such Holder,
this Article Fourteen, to the extent theretofore discharged with respect to any
Guarantee of such Securities, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation
in relation to the Holders of Securities of a series guaranteed hereby by such
Guarantor in respect of any obligations guaranteed hereby by such Guarantee
until payment in full of all such obligations. Each Guarantor further agrees
that, as between such Guarantor, on the one hand, and the Holders of Securities
of a series guaranteed hereby by such Guarantor and the Trustee on the other
hand, (i) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Five hereof for the purposes of such Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby and (ii) in the
event of any acceleration of such obligations as provided in Article Five
hereof such obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor, jointly and severally with any other
Guarantor of such Securities, for the purpose of this Article Fourteen. In
addition, without limiting the foregoing, upon the effectiveness of an
acceleration under Article Five, the Trustee may make a demand for payment on
the Securities under any Guarantee provided hereunder and not discharged.



     With respect to each Guarantee by a Guarantor, such Guarantor shall be
subrogated to all rights of the Holder of any Securities guaranteed hereby by
such Guarantee against the Company in respect of any amounts paid to such
Holder by such Guarantor pursuant to the provisions of such Guarantee; provided
that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
principal of and interest on all such Securities shall have been paid in full.



     The Guarantee set forth in this Section 14.02 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee or any
duly appointed agent.



     The Guarantees provided in this Section 14.02 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee or any
duly appointed agent.



55









 





     SECTION 14.03. Obligations of the Guarantor Unconditional. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in any
Security is intended to or shall impair, as between a Guarantor and the Holders
of the Securities guaranteed by such Guarantor’s Guarantee, the obligations of
such Guarantor, which are absolute and unconditional, to pay to such Holders
the principal of and interest on the as and when the same shall become due and
payable in accordance with the provisions of this Guarantee or is intended to
or shall affect the relative rights of such Holders and creditors of such
Guarantor, nor shall anything herein or therein prevent the Trustee or such
Holder from exercising all remedies otherwise permitted by applicable law upon
Default under this Indenture in respect of cash, property or securities of such
Guarantor received upon the exercise of any such remedy;



     Upon any distribution of assets of a Guarantor referred to in this Article
Fourteen, the Trustee, subject to the provisions of Sections 6.01 and 6.02, and
the Holders of the Securities guaranteed hereby by such Guarantor shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
such Holders, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of other indebtedness of such
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Fourteen.



     SECTION 14.04. Article Fourteen Not To Prevent Events of Default. The
failure to make a payment on account of principal or interest on the Securities
of any series by reason of any provision in this Article Fourteen shall not be
construed as preventing the occurrence of an Event of Default under Section
5.01.



     SECTION 14.05. Execution and Delivery of Guarantee. To evidence a
Guarantee set forth in this Article Fourteen, the Guarantor hereby agrees that
the Guarantee Notation, substantially in the form of Exhibit A hereto, shall be
endorsed on each Security authenticated and delivered by the Trustee that is
guaranteed by such Guarantee and that this Indenture shall be executed on
behalf of such Guarantor by its Chairman of the Board, its President or one of
its Vice Presidents under a facsimile of its seal reproduced thereon.



     Each Guarantor hereby agrees that its Guarantee shall remain in full force
and effect notwithstanding any failure to endorse the Guarantee Notation on
each such Security.
If an officer whose signature is on this Indenture or on the Securities
guaranteed hereby no longer holds that office at the time the Trustee
authenticates the Security on which a notation of the Guarantee is endorsed,
such Guarantee shall be valid nevertheless.



     The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of each Guarantee thereof.



ARTICLE FIFTEEN




Miscellaneous




     SECTION 15.01. Form of Documents Delivered to Trustee.



56









 





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



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



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



     SECTION 15.02. Notices.



     Any notice or communication by the Company, any Guarantor or the Trustee
to the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others’ address.




     If to the Company and/or any Subsidiary Guarantor:




	 	 	Peabody Energy Corporation

701 Market Street

St. Louis, Missouri 63101-1826

Telecopier No.: (314) 342-3419

Attention: Chief Legal Officer






     With a copy to:




	 	 	Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017-3954 75

Telecopier No. (212) 455-2502

Attention: Risë B. Norman, Esq.






     If to the Trustee:




	 	 	US Bank National Association





57









 






	 	 	Goodwin Square

225 Asylum Street, 23rd Floor

EX-CT-SS

Hartford, Connecticut 06103

Telecopier No.: (860) 241-6881





     The Company, any Subsidiary Guarantor or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices
or communications.



     All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery; provided,
however, that any notice of communication to the Trustee shall not be deemed to
be received by it until actually received by it at the Corporate Trust Office
of the Trustee.



     Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Security Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA § 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.



     If a notice or communication addressed to a party other than the Trustee
is mailed in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it.



     If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.



     SECTION 15.03. Notice to Holders; Waiver.



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



     In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be



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made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.



     SECTION 15.04. Trust Indenture Act Controls.



     If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Section 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.



     SECTION 15.05. Certificate and Opinion as to Conditions Precedent.



     Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall, upon the
request of the Trustee, furnish to the Trustee:




     (1) an Officers’ Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 15.06 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 15.06 hereof) stating that, in the opinion of such counsel,
all such conditions precedent and covenants, if any, have been satisfied,
except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.



     SECTION 15.06. Statements Required in Certificate or Opinion.



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




     (1) a statement that the Person making such certificate or opinion
has read such covenant or condition;




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




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




     (4) a statement as to whether, in the opinion of such Person, such
condition or covenant has been satisfied.



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     SECTION 15.07. Table of Contents, Headings, etc..



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



     SECTION 15.08. Successors and Assigns.



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



     SECTION 15.09. Separability Clause.



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



     SECTION 15.10. Benefits of Indenture.



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



     SECTION 15.11. Rules by Trustee and Agents..



     The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Security Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.



     SECTION 15.12. No Personal Liability of Directors, Officers, Employees and
Stockholders..



     No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor or Person controlling such Persons,
as such, shall have any liability for any obligations of the Company or of the
Guarantors or any Person controlling such Person under the Securities, this
Indenture, the Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of the Securities
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.



     SECTION 15.13. Governing Law.



     THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE SECURITIES AND THE GUARANTEES.



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     SECTION 15.14. Legal Holidays.



     In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Security) 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 Interest Payment
Date or Redemption Date, or at the Stated Maturity, and no interest shall
accrue for the
period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.



     SECTION 15.15. Indenture and Securities Solely Corporate Obligations.



     No recourse for the payment of principal of or interest on any Security or
for any claim based on any Security or this Indenture shall be had against any
director or officer or stockholder, past, present or future, of the Company or
any other obligor with respect to the Securities. Any such claim against any
such Person is expressly waived as a condition of, and as consideration for,
the execution and delivery of this Indenture and the issue of the Securities.



     SECTION 15.16. No Security Interest Created.



     Nothing in this Indenture or in the Securities, expressed or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction where property of the Company or its Subsidiaries
is located.



     SECTION 15.17. Counterpart Originals.



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



     SECTION 15.18. No Adverse Interpretation of Other Agreements.



     This Indenture may not be used to interpret any other Indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such Indenture, loan or debt agreement may not be used to interpret this
Indenture.



* * * * * *




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



     In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.



	 	 	 	 	 
	 	 	PEABODY ENERGY CORPORATION
	 
	 	 	 	 
	

	 	By:
	 	/s/ RICHARD A. NAVARRE
	

	 	 	 	
 
	

	 	 	 	Name Richard A. Navarre


Title Executive Vice President and

 Chief

Financial Officer
	 
	 	 	 	 
	

	 	By:
	 	/s/ WALTER L. HAWKINS, JR.
	

	 	 	 	
 
	

	 	 	 	Name Walter L. Hawkins, Jr.



Title Vice President and Treasurer
	 
	 	 	 	 
	 	 	U.S.BANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	

	 	By:
	 	/s/ PHILIP G. KANE, JR.
	

	 	 	 	
 
	

	 	 	 	Name Philip G. Kane, Jr.



Title Vice President







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EXHIBIT A




[FORM OF NOTATION OF SECURITY




RELATING TO GUARANTEE]




GUARANTEE




     [Name of Guarantor] (hereinafter referred to as the “Guarantor”, which
term includes any successor person under the Indenture (the “Indenture”)
referred to in the Security upon which this notation is endorsed) (the
“Endorsed Security”), has unconditionally guaranteed (i) the due and punctual
payment of the principal of, premium, if any, and interest on the Endorsed
Security and all other Securities of the same series as the Endorsed Security
(the “Guaranteed Securities”), whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
of, premium, if any, and interest, if any, on the Guaranteed Securities, to the
extent lawful, and the due and punctual performance of all other obligations of
the Company to the Holders of Guaranteed Securities or the Trustee all in
accordance with the terms set forth in Article Fourteen of the Indenture and
(ii) in case of any extension of time of payment or renewal of any Guaranteed
Securities or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Indenture.



     The obligations of the Guarantor to the Holders of Guaranteed Securities
and to the Trustee pursuant to the Guarantee evidenced hereby and the Indenture
are expressly set forth in Article Fourteen of the Indenture and reference is
hereby made to such Indenture for the terms of such Guarantee.



     No stockholder, officer, director or incorporator, as such, past, present
or future, of the Guarantor shall have any personal liability under the
Guarantee evidenced hereby by reason of his or its status as such stockholder,
officer, director or incorporator.



     The Guarantee evidenced hereby shall not be valid or obligatory for any
purpose until the certificate of authentication of the Guaranteed Securities
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.



	 	 	 	 	 
	 	 	Guarantor
	 
	 	 	 	 
	 	 	[SEAL]
	 
	 	 	 	 
	 	 	[NAME OF GUARANTOR]
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 








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