exv4w3







EXHIBIT 4.3




MOBILE MINI, INC.




AND



LAW DEBENTURE TRUST COMPANY OF NEW YORK



AS TRUSTEE



GUARANTEED TO THE EXTENT SET FORTH THEREIN

BY THE GUARANTORS NAMED HEREIN.



INDENTURE



DATED AS OF




 









 





CROSS REFERENCE SHEET*




     Provisions of the Trust Indenture Act of 1939 and the Indenture (the “Indenture”), dated as
of      ,     , by and among Mobile Mini, Inc., a Delaware corporation, the guarantors
listed on Schedule 1 to the Indenture, and Law Debenture Trust Company of New York, as Trustee:



	 	 	 
	 	 	Indenture
	TIA Section	 	Section
	310(a)(1)
	 	7.10
	310(a)(2)
	 	7.10
	310(a)(3)
	 	Not applicable
	310(a)(4)
	 	Not applicable
	310(a)(5)
	 	Not applicable
	310(b)
	 	7.03; 7.08; 7.10
	310(b)(1)
	 	7.10
	310(c)
	 	Not applicable
	311(a)
	 	7.03; 7.11
	311(b)
	 	7.03; 7.11
	311(c)
	 	Not applicable
	312(a)
	 	2.05
	312(b)
	 	11.03
	312(c)
	 	11.03
	313(a)
	 	7.06
	313(b)(1)
	 	Not applicable
	313(b)(2)
	 	7.06
	313(c)
	 	7.06;11.02
	313(d)
	 	7.06
	314(a)
	 	4.03; 4.04; 11.02
	314(b)
	 	Not applicable
	314(c)(1)
	 	11.04(a)
	314(c)(2)
	 	11.04(b)
	314(c)(3)
	 	Not applicable
	314(d)
	 	Not applicable
	314(e)
	 	11.05
	314(f)
	 	Not applicable
	315(a)
	 	7.01(b)
	315(b)
	 	7.05; 11.02
	315(c)
	 	7.01(a)
	315(d)
	 	7.01(c)
	315(e)
	 	6.12
	316(a)(1)(A)
	 	6.05
	316(a)(1)(B)
	 	6.04
	316(a)(2)
	 	Not applicable
	316(a) (last sentence)
	 	2.08; 6.04
	316(b)
	 	6.08
	317(a)(1)
	 	6.09
	317(a)(2)
	 	6.10
	317(b)
	 	2.04; 7.12
	318(a)
	 	11.01








 




			
	*	 	This cross reference sheet shall not, for any purpose, be deemed to be a part of
the Indenture.







 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01 Certain Definitions
	 	 	1	 
	SECTION 1.02 Other Definitions
	 	 	4	 
	SECTION 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	4	 
	SECTION 1.04 Rules of Construction
	 	 	5	 
	 
	 	 	 	 
	ARTICLE 2 THE SECURITIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01 Unlimited in Amount, Issuable in Series, Form and Dating
	 	 	5	 
	SECTION 2.02 Execution and Authentication
	 	 	8	 
	SECTION 2.03 Registrar and Paying Agent
	 	 	8	 
	SECTION 2.04 Paying Agent to Hold Money in Trust
	 	 	9	 
	SECTION 2.05 Securityholder Lists
	 	 	9	 
	SECTION 2.06 Transfer and Exchange
	 	 	9	 
	SECTION 2.07 Replacement Securities
	 	 	10	 
	SECTION 2.08 Outstanding Securities
	 	 	10	 
	SECTION 2.09 Temporary Securities
	 	 	11	 
	SECTION 2.10 Cancellation
	 	 	11	 
	SECTION 2.11 Defaulted Interest
	 	 	11	 
	SECTION 2.12 Special Record Dates
	 	 	11	 
	SECTION 2.13 Global Securities
	 	 	12	 
	SECTION 2.14 CUSIP Numbers
	 	 	13	 
	SECTION 2.15 Computation of Interest
	 	 	13	 
	SECTION 2.16 Treasury Notes
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 3 REDEMPTION
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01 Notices to Trustee
	 	 	14	 
	SECTION 3.02 Selection of Securities to be Redeemed
	 	 	14	 
	SECTION 3.03 Notice of Redemption
	 	 	15	 
	SECTION 3.04 Effect of Notice of Redemption
	 	 	16	 
	SECTION 3.05 Deposit of Redemption Price
	 	 	16	 
	SECTION 3.06 Securities Redeemed or Purchased in Part
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 4 COVENANTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01 Payment of Securities
	 	 	16	 
	SECTION 4.02 Maintenance of Office or Agency
	 	 	17	 
	SECTION 4.03 Reports
	 	 	17	 
	SECTION 4.04 Compliance Certificate
	 	 	17	 
	SECTION 4.05 Taxes
	 	 	18	 
	SECTION 4.06 Stay, Extension and Usury Laws
	 	 	18	 
	SECTION 4.07 Maintenance of Properties; Insurance; Compliance with Law
	 	 	18	 
	SECTION 4.08 Payments for Consent
	 	 	19	 
	SECTION 4.09 Legal Existence
	 	 	19	 






i









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 5 SUCCESSORS
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01 When The Issuer May Merge, Etc
	 	 	19	 
	SECTION 5.02 Successor Person Substituted
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 6 DEFAULTS AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01 Events of Default
	 	 	20	 
	SECTION 6.02 Acceleration
	 	 	22	 
	SECTION 6.03 Other Remedies
	 	 	22	 
	SECTION 6.04 Waiver of Past Defaults
	 	 	22	 
	SECTION 6.05 Control by Majority
	 	 	23	 
	SECTION 6.06 Limitation on Suits
	 	 	23	 
	SECTION 6.07 No Personal Liability of Directors, Officers, Employees
and Stockholders
	 	 	23	 
	SECTION 6.08 Rights of Holders to Receive Payment
	 	 	24	 
	SECTION 6.09 Collection Suit by Trustee
	 	 	24	 
	SECTION 6.10 Trustee May File Proofs of Claim
	 	 	24	 
	SECTION 6.11 Priorities
	 	 	24	 
	SECTION 6.12 Undertaking for Costs
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 7 TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01 Duties of Trustee
	 	 	25	 
	SECTION 7.02 Rights of Trustee
	 	 	26	 
	SECTION 7.03 Individual Rights of Trustee
	 	 	27	 
	SECTION 7.04 Trustee’s Disclaimer
	 	 	27	 
	SECTION 7.05 Notice of Defaults
	 	 	27	 
	SECTION 7.06 Reports by Trustee to Holders
	 	 	28	 
	SECTION 7.07 Compensation and Indemnity
	 	 	28	 
	SECTION 7.08 Replacement of Trustee
	 	 	29	 
	SECTION 7.09 Successor Trustee by Merger, Etc
	 	 	30	 
	SECTION 7.10 Eligibility; Disqualification
	 	 	30	 
	SECTION 7.11 Preferential Collection of Claims Against the Issuer
	 	 	30	 
	SECTION 7.12 Paying Agents
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 8 SATISFACTION AND DISCHARGE; DEFEASANCE
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01 Satisfaction and Discharge
	 	 	31	 
	SECTION 8.02 Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	32	 
	SECTION 8.03 Legal Defeasance and Discharge
	 	 	32	 
	SECTION 8.04 Covenant Defeasance
	 	 	32	 
	SECTION 8.05 Conditions to Legal or Covenant Defeasance
	 	 	33	 
	SECTION 8.06 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions
	 	 	34	 
	SECTION 8.07 Repayment to the Issuer
	 	 	35	 
	SECTION 8.08 Reinstatement
	 	 	35	 







ii 









 




TABLE OF CONTENTS

(continued)



	 	 	 	 	 
	 	 	Page	 
	ARTICLE 9 SUPPLEMENTS, AMENDMENTS AND WAIVERS
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01 Without Consent of Holders
	 	 	35	 
	SECTION 9.02 With Consent of Holders
	 	 	36	 
	SECTION 9.03 Compliance with the Trust Indenture Act
	 	 	37	 
	SECTION 9.04 Revocation and Effect of Consents
	 	 	37	 
	SECTION 9.05 Notation on or Exchange of Securities
	 	 	37	 
	SECTION 9.06 Trustee to Sign Amendments, Etc
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 10 GUARANTEES
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.01 Guarantee
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 11 MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.01 Trust Indenture Act Controls
	 	 	38	 
	SECTION 11.02 Notices
	 	 	38	 
	SECTION 11.03 Communication by Holders With Other Holders
	 	 	39	 
	SECTION 11.04 Certificate and Opinion as to Conditions Precedent
	 	 	40	 
	SECTION 11.05 Statements Required in Certificate or Opinion
	 	 	40	 
	SECTION 11.06 Rules by Trustee and Agents
	 	 	40	 
	SECTION 11.07 Legal Holidays
	 	 	40	 
	SECTION 11.08 No Recourse Against Others
	 	 	41	 
	SECTION 11.09 Counterparts
	 	 	41	 
	SECTION 11.10 Governing Law
	 	 	41	 
	SECTION 11.11 Submission to Jurisdiction; Service of Process; Waiver of Jury Trial
	 	 	41	 
	SECTION 11.12 Severability
	 	 	42	 
	SECTION 11.13 Effect of Headings, Table of Contents, Etc
	 	 	42	 
	SECTION 11.14 Successors and Assigns
	 	 	42	 
	SECTION 11.15 No Interpretation of Other Agreements
	 	 	42	 





iii 








 





     INDENTURE dated as of      by and among Mobile Mini, Inc., a Delaware corporation,
(the “Issuer”), the guarantors listed on Schedule 1 hereto (herein called the “Guarantors”) and Law
Debenture Trust Company of New York, as Trustee (the “Trustee”).



     The Issuer has duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”), as herein provided, up to such principal amount
as may from time to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.



     Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of each series of the Securities:



ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


SECTION 1.01 Certain Definitions.


     “Affiliate” of any person means any other person which directly or indirectly controls
or is controlled by, or is under direct or indirect common control with, the referent person. For
purposes of the covenant described under “—Certain Covenants—Limitations on Transactions with
Affiliates,” Affiliates shall be deemed to include, with respect to any person, any other person
(1) which beneficially owns or holds, directly or indirectly, 10% or more of any class of the
voting stock of the referent person, (2) of which 10% or more of the voting stock is beneficially
owned or held, directly or indirectly, by the referenced person or (3) with respect to an
individual, any immediate family member of such person. For purposes of this definition, “control”
of a person shall mean the power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise.



     “Agent” means any Registrar, Paying Agent, authenticating agent or co-Registrar.


     “asset” means any asset or property.


     “Board of Directors” means, with respect to any Person, the board of directors of such
Person (or, if such Person is a limited liability company, the board of managers of such Person) or
similar governing body or any authorized committee thereof.




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



     “Business Day” means any day other than a Legal Holiday.



     “Closing Date” means the date on which the Securities of a particular series were
originally issued under this Indenture.



     “Commission” means the Securities and Exchange Commission.



     “Corporate Trust Office” shall mean the corporate trust office of the Trustee, which
shall initially be Law Debenture Trust Company of New York, [address], New York, New York 10016.



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



 








 





     “Depositary” means, with respect to the Securities of any series issuable or issued in
whole or in part in the form of one or more Global Securities, the person designated as Depositary
for such series by the Issuer, which Depositary shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such person, “Depositary” as used with
respect to the Securities of any series shall mean the Depositary with respect to the Securities of
such series.



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




     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the applicable measurement
date.




     “Global Security” shall mean a Security issued to evidence all or a part of any series
of Securities that is executed by the Issuer and authenticated and delivered by the Trustee to a
Depositary or pursuant to such Depositary’s instructions, all in accordance with this Indenture and
pursuant to Section 2.01, which shall be registered as to principal and interest in the name of
such Depositary or its nominee.




     “Holder” or “Securityholder” means a Person in whose name a Security is
registered in the register of Securities kept by the Registrar.



     “Indenture” means this Indenture, as amended or supplemented from time to time.



     “Issuer” means the party named as such above until a successor replaces it pursuant to
this Indenture and thereafter means the successor.



     “Issuer Order” means a written order signed in the name of the Issuer by two Officers,
one of whom must be the Issuer’s principal executive officer, principal financial officer,
treasurer, principal accounting officer or vice president and delivered to the Trustee.



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



2









 






     “Officer” means, with respect to any Person, a chairman of the board, a chief
executive officer, a president, the chief financial officer, any vice-president, the treasurer, the
controller, the secretary, any assistant treasurer or any assistant secretary of such Person.




     “Officers’ Certificate” means a certificate signed by two or more Officers, one of
whom must be the principal executive officer, principal financial officer or principal accounting
officer of the Issuer that meets the requirements of Section 11.05 hereof.




     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable
to the Trustee that meets the requirements of Section 11.05 hereof. The counsel may be an employee
of or counsel to the Issuer or the Trustee.




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




     “principal” of a Security means the principal amount due on the stated maturity of the
Security plus the premium, if any, on the Security.



     “Securities” means the Securities authenticated and delivered under this Indenture.


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


     “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:




     (1) any corporation, limited liability company, association or other
business entity of which more than 50% of the total voting power of the Equity Interests
entitled (without regard to the occurrence of any contingency) to vote in the election of
the Board of Directors thereof are at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a combination
thereof); and




     (2) 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).




     Unless otherwise specified, “Subsidiary” refers to a Subsidiary of the Issuer.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the date on which this Indenture is qualified under the TIA provided, however, that in
the event the TIA is amended after such date, “TIA” means, to the extent required by such
amendment, the Trust Indenture Act, as amended.



3








 






     “Trust Officer” when used with respect to the Trustee, means any officer assigned to
the Corporate Trust Office of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with the particular
subject.




     “Trustee” means the party named as such above until a successor becomes such pursuant
to this Indenture and thereafter means or includes each party who is then a trustee hereunder, and
if at any time there is more than one such party, “Trustee” as used with respect to the Securities
of any series means the Trustee with respect to Securities of that series. If Trustees with
respect to different series of Securities are trustees under this Indenture, nothing herein shall
constitute the Trustees co-trustees of the same trust, and each Trustee shall be the trustee of a
trust separate and apart from any trust administered by any other Trustee with respect to a
different series of Securities.




     “U.S. Government Obligations” means securities that are (i) direct obligations of the
United States of America for the payment of which its full faith and credit is pledged or
(ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that is 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 evidenced by such depository receipt.




SECTION 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined	 
	Term	 	in Section	 
	“Bankruptcy Law”
	 	 	6.01	 
	“Custodian”
	 	 	6.01	 
	“Event of Default”
	 	 	6.01	 
	“Legal Holiday”
	 	 	11.07	 
	“Paying Agent”
	 	 	2.03	 
	“Place of Payment”
	 	 	2.01	 
	“redemption price”
	 	 	3.03	 
	“Registrar”
	 	 	2.03	 






SECTION 1.03 Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:



4









 





     “indenture securities” means the Securities.


     “indenture securityholder” means a Securityholder.


     “indenture to be qualified” means this Indenture.


     “indenture trustee” or “institutional trustee” means the Trustee.


     “obligor” on the Securities means the Issuer and any Guarantor and any successor
obligor on the Securities.



     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by Commission rule under the TIA have the meanings so assigned to
them.




SECTION 1.04 Rules of Construction.




     Unless the context otherwise requires:




          (i) a term has the meaning assigned to it;




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




          (iii) “or” is not exclusive;




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




          (v) provisions apply to successive events and transactions; and




          (vi) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement of successor sections or rules adopted by the SEC
from time to time.




ARTICLE 2

THE SECURITIES




SECTION 2.01 Unlimited in Amount, Issuable in Series, Form and Dating.




     The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series.


     There shall be established in or pursuant to a Board Resolution or an Officers’ Certificate
pursuant to authority granted under a Board Resolution or established in one or more indentures
supplemental hereto authorized by a Board Resolution, prior to the issuance of Securities of any
series:


5








 








          (a) the title of the Securities of the series, whether the Securities rank as senior
Securities, senior subordinated Securities or subordinated Securities, or any combination thereof;




          (b) the price or prices (expressed as a percentage of the principal amount thereof)
at which the Securities of the series will be issued;




          (c) the aggregate principal amount of the Securities and any limit upon the
aggregate principal amount of the Securities that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to this Article 2);




          (d) the date or dates on which the principal on the Securities will be payable and
the amount of principal that will be payable;




          (e) the rate or rates (which may be fixed or variable) at which the Securities of
the series will bear interest, if any, as well as the dates from which interest will accrue, the
dates on which the interest will be payable and the record date for the interest payable on any
payment date;




          (f) the form and terms of any guarantee of the Securities, including the terms of
subordination, if any, of the series;




          (g) any depositories, interest rate calculation agents or other agents with respect
to Securities of such series if other than those appointed herein;




          (h) the right, if any, of Holders of the Securities to convert them into common
stock or other securities of the Issuer, including any provisions to prevent dilution of such
conversion rights;




          (i) the place or places where the principal, premium, if any, and interest, if any,
on the Securities of the series will be payable and where the Securities which are in registered
form can be presented for registration of transfer or exchange and the identification of any
depositary or depositaries for any Global Securities;




          (j) the provisions, if any, regarding the Issuer’s right to redeem, repay or
purchase Securities of the series, in whole or in part, or the right of the Holders to require the
Issuer to redeem, repay or purchase Securities of the series, in whole or in part;




          (k) the provisions, if any, requiring or permitting the Issuer to make payments in a
sinking fund or analogous provision to be used to redeem the Securities of the series or a purchase
fund or analogous provision to purchase the Securities of the series;




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




          (m) the percentage of the principal amount at which the Securities of the series will
be issued and, if other than the full principal amount thereof, the percentage of the principal




6









 





amount of the Securities of the series which is payable if maturity of such Securities is
accelerated because of a Default;




          (n) the currency or currencies in which principal, premium, if any, and interest, if
any, of the Securities of the series will be payable;




          (o) if payments of principal of, premium or interest on the Securities of the series
will be made in one or more currencies other than that or those in which the Securities of the
series are denominated, the manner in which the exchange rate with respect to such payments will be
determined;




          (p) the manner in which the amounts of payment of principal of, or premium or
interest on the Securities of the series will be determined, if these amounts may be determined by
reference to an index based on a currency or currency other than that in which the Securities of
the series are denominated or designated to be payable;




          (q) the provisions, if any, relating to any security provided for the Securities of
the series;




          (r) any addition to or change in the Events of Default with respect to the
Securities of a particular series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and payable pursuant to
Section 6.02 hereof;




          (s) any addition to, change in or deletion from, the covenants set forth in Articles
4 or 5 that applies to Securities of the series;




          (t) the Trustee for the series of Securities;




          (u) any other terms of the series (which terms may modify, supplement or delete any
provision of this Indenture with respect to such series; provided, however, that no such term may
modify or delete any provision hereof if imposed by the TIA; and provided, further, that any
modification or deletion of the rights, duties or immunities of the Trustee hereunder shall have
been consented to in writing by the Trustee).







     All Securities of any series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution or Officers’
Certificate or in any such indenture supplemental hereto.




     The principal of and any interest on the Securities shall be payable at the office or agency
of the Issuer designated in the form of Security for the series (each such place herein called the
“Place of Payment”); provided, however, that payment of interest may be made at the option
of the Issuer by check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities referred to in Section 2.03 hereof.




     Each Security shall be in one of the forms approved from time to time by or pursuant to a
Board Resolution or Officers’ Certificate, or established in one or more indentures supplemental
hereto. Prior to the delivery of a Security to the Trustee for authentication in any form approved



7









 




by or pursuant to a Board Resolution or Officers’ Certificate, the Issuer shall deliver to the
Trustee the Board Resolution or Officers’ Certificate by or pursuant to which such form of Security
has been approved, which Board Resolution or Officers’ Certificate shall have attached thereto a
true and correct copy of the form of Security that has been approved by or pursuant thereto.







     The Securities may have notations, legends or endorsements required by law, stock exchange
rule or usage. Each Security shall be dated the date of its authentication.



SECTION 2.02 Execution and Authentication.




     One or more Officers shall sign the Securities for the Issuer by manual or facsimile
signature.



     If an Officer whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.




     A Security shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Security has been authenticated under this
Indenture.



     The Trustee shall authenticate Securities for original issue upon receipt of an Issuer Order.



     The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate
Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the Issuer or an
Affiliate of the Issuer.



SECTION 2.03 Registrar and Paying Agent.




     The Issuer shall maintain an office or agency (which, unless otherwise set forth in a Board
Resolution or Supplemental Indenture, shall be located in the Borough of Manhattan in the City of
New York, State of New York) where Securities of a particular series may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or agency where
Securities of that series may be presented for payment (a “Paying Agent”). The Registrar
for a particular series of Securities shall keep a register of the Securities of that series and of
their registration of transfer and exchange. The Issuer may appoint one or more co-Registrars and
one or more additional paying agents for each series of Securities. The term “Paying Agent”
includes any additional paying agent. The Issuer may change any Paying Agent, Registrar or
co-Registrar without prior notice to any Securityholder. The Issuer shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture.



     If the Issuer fails to maintain a Registrar or Paying Agent for any series of Securities, the
Trustee shall act as such. The Issuer or any of its Affiliates may act as Paying Agent, Registrar
or co-Registrar.



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     The Issuer hereby appoints the Trustee the initial Registrar and Paying Agent for each series
of Securities unless another Registrar or Paying Agent, as the case may be, is appointed prior to
the time Securities of that series are first issued.




SECTION 2.04 Paying Agent to Hold Money in Trust.




     Whenever the Issuer has one or more Paying Agents it will, prior to 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 interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, and (unless such Paying Agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.




     The Issuer shall require each Paying Agent other than the Trustee to agree in writing that
such Paying Agent will hold in trust for the benefit of the Securityholders of the particular
series for which it is acting, or the Trustee, all money held by the Paying Agent for the payment
of principal or interest on the Securities of such series, and that such Paying Agent will notify
the Trustee of any Default by the Issuer or any other obligor of the series of Securities in making
any such payment and 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. If the Issuer or an Affiliate acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Securityholders of the particular series for which it is
acting all money held by it as Paying Agent. The Issuer at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon so doing, the Paying Agent (if other than the Issuer
or an Affiliate of the Issuer) shall have no further liability for such money. Upon any bankruptcy
or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for
the Securities.




SECTION 2.05 Securityholder Lists.




     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders, separately by series, and shall
otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Issuer shall
furnish to the Trustee as of the relevant record date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Securityholders, separately by series, relating to such interest
payment date or request, as the case may be.




SECTION 2.06 Transfer and Exchange.




     Where Securities of a series are presented to the Registrar or a co-Registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
series of other authorized denominations, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met. To permit registrations of transfers
and exchanges, the Issuer shall issue and the Trustee shall authenticate Securities at the
Registrar’s request.




     No service charge shall be made for any registration of transfer or exchange, but the Issuer
may require payment of a sum sufficient to cover any transfer tax or similar governmental



9









 





charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.09, 2.13, 3.06 or 9.05).




     The Issuer need not issue, and the Registrar or co-Registrar need not register the transfer or
exchange of, (i) any Security of a particular series during a period beginning at the opening of
business 15 days before the day of any selection of Securities of that series for redemption under
Section 3.02 and ending at the close of business on the day of selection, or (ii) any Security so
selected for redemption in whole or in part, except the unredeemed portion of any Security of that
series being redeemed in part.




     Any Holder of a Global Security shall, by acceptance of such Global Security, agree that
transfers of the beneficial interests in such Global Security may be effected only through a book
entry system maintained by the Issuer of such Global Security (or its agent), and that ownership of
a beneficial interest in the Global Security shall be required to be reflected in a book entry.




SECTION 2.07 Replacement Securities.




     If a mutilated Security is surrendered to the Trustee or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Issuer shall issue and the
Trustee shall authenticate a replacement Security of same series if the Issuer’s and the Trustee’s
requirements are met. The Trustee or the Issuer may require an indemnity bond to be furnished
which is sufficient in the judgment of both to protect the Issuer, the Trustee, and any Agent from
any loss which any of them may suffer if a Security is replaced. The Issuer or the Trustee may
charge such Holder for its expenses in replacing a Security.



     Every replacement Security is an obligation of the Issuer and shall be entitled to all the
benefit of the Indenture equally and proportionately with any and all other Securities of the same
series.



SECTION 2.08 Outstanding Securities.




     The Securities of any series outstanding at any time are all the Securities of that series
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.



     If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.



     If Securities are considered paid under Section 4.01, they cease to be outstanding and
interest on them ceases to accrue.



     Except as set forth in Section 2.09 hereof, a Security does not cease to be outstanding
because the Issuer or an Affiliate holds the Security.



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SECTION 2.09 Temporary Securities.


     Until definitive Securities are ready for delivery, the Issuer may prepare and the Trustee
shall authenticate temporary Securities upon an Issuer Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Issuer
considers appropriate for temporary Securities. Without unreasonable delay, the Issuer shall
prepare and the Trustee shall authenticate definitive Securities in exchange for temporary
Securities.


     Holders of temporary Securities shall be entitled to all of the benefits of this Indenture.


SECTION 2.10 Cancellation.


     The Issuer at any time may deliver Securities to the Trustee for cancellation. The Registrar
and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall return such
canceled Securities to the Issuer at the Issuer’s written request. The Issuer may not issue new
Securities to replace Securities that it has paid or that have been delivered to the Trustee for
cancellation.



SECTION 2.11 Defaulted Interest.




     If the Issuer fails to make a payment of interest on any series of Securities, the Issuer
shall pay such defaulted interest plus (to the extent lawful) any interest payable on the defaulted
interest, in any lawful manner. It may elect to pay such defaulted interest, plus any such
interest payable on it, to the Persons who are Holders of such Securities on which the interest is
due on a subsequent special record date. The Issuer shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each such Security and the date of the proposed
payment. The Issuer shall fix or cause to be fixed any such record date and payment date for such
payment; provided, however, that no such special record date shall be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days before any such record
date, the Issuer shall mail to Securityholders affected thereby a notice that states the record
date, payment date, and amount of such interest to be paid.


SECTION 2.12 Special Record Dates.


          (a) The Issuer may, but shall not be obligated to, set a record date for the purpose
of determining the identity of Holders entitled to consent to any supplement, amendment or waiver
permitted by this Indenture. If a record date is fixed, the Holders of Securities of that series
outstanding on such record date, and no other Holders, shall be entitled to consent to such
supplement, amendment or waiver or revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or effective for more than 90
days after such record date unless consents from Holders of the principal amount of Securities of
that series required hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.


          (b) The Issuer may, but shall not be obligated to, fix any day as a record date for
the purpose of determining the Holders of any series of Securities entitled to join in the


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giving or making of any notice of Default, any declaration of acceleration, any request to
institute proceedings or any other similar direction. If a record date is fixed, the Holders of
Securities of that series outstanding on such record date, and no other Holders, shall be entitled
to join in such notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided, however, that no such action shall be effective hereunder
unless taken on or prior to the date 90 days after such record date.




SECTION 2.13 Global Securities.




          (a) Terms of Securities. A Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate shall establish whether the Securities of a series shall be issued in whole
or in part in the form of one or more Global Securities and the Depositary for such Global Security
or Securities.




          (b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained
in Section 2.06 of this Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.06 of this Indenture for securities registered in the names of
Holders other than the Depositary for such Security or its nominee only if (i) such Depositary
notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Issuer fails to appoint a successor Depositary within 90
days of such event or (ii) the Issuer executes and delivers to the Trustee an Officers’ Certificate
to the effect that such Global Security shall be so exchangeable. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in
such names as the Depositary shall direct in writing in an aggregate principal amount equal to the
principal amount of the Global Security with like tenor and terms.




     Except as provided in this paragraph (b) of this Section, a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global Security to a nominee
of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such
a successor Depositary.




          (c) Legend. Any Global Security issued hereunder shall bear a legend in
substantially the following form:





     “Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (“DTC”), New York, New York, to
the issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
may be requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as may be requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an
interest herein.”





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     “Transfer of this Global Security shall be limited to transfers in whole, but
not in part, to nominees of DTC or to a successor thereof or such successor’s
nominee and limited to transfers made in accordance with the restrictions set forth
in the Indenture referred to herein.”




          (d) Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under this Indenture.







          (e) Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.01 hereof, payment of the principal of and
interest, if any, on any Global Security shall be made to the Person specified therein.




          (f) Consents, Declaration and Directions. Except as provided in paragraph (e) of
this Section, the Issuer, the Trustee and any Agent shall treat a Person as the Holder of such
principal amount of outstanding Securities of such series represented by a Global Security as shall
be specified in a written statement of the Depositary with respect to such Global Security, for
purposes of obtaining any consents, declarations or directions required to be given by the Holders
pursuant to this Indenture.







SECTION 2.14 CUSIP Numbers.




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




SECTION 2.15 Computation of Interest.




     Unless otherwise set forth in a Board Resolution or Supplemental Indenture, interest on the
Securities will be computed on the basis of a 360-day year of twelve 30-day months.




SECTION 2.16 Treasury Notes.




     In determining whether the Holders of the required principal amount of Securities have
concurred in any declaration of acceleration or notice of default or direction, waiver or consent
or any amendment, modification or other change to this Indenture, Securities owned by the Issuer or
any other Affiliate of the Issuer shall be disregarded as though they were not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent or any amendment, modification or other change to this Indenture, only
Securities as to which a responsible officer of the Trustee has received an Officers’ Certificate
stating that such Securities are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith shall not be disregarded



13









 




if the pledgee established to the satisfaction of the Trustee the pledgee’s right so to act with
respect to the Securities and that the pledgee is not the Issuer, a Guarantor, any other obligor on
the Securities or any of their respective Affiliates.







ARTICLE 3

REDEMPTION




SECTION 3.01 Notices to Trustee.




     If the Issuer elects to redeem Securities of any series pursuant to any optional redemption
provisions thereof, it shall furnish to the Trustee at least 45 days, but not more than 60 days
before a redemption date, an Officers’ Certificate which shall specify (i) the provisions of such
Security or this Indenture pursuant to which the redemption shall occur, (ii) the redemption date,
(iii) the principal amount of Securities of that series to be redeemed and (iv) the redemption
price.




     If the Issuer elects to reduce the principal amount of Securities of any series to be redeemed
pursuant to mandatory redemption provisions thereof, it shall notify the Trustee of the amount of,
and the basis for, any such reduction. If the Issuer elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for cancellation, it shall
deliver such Securities with such notice.




SECTION 3.02 Selection of Securities to be Redeemed.




     If less than all the Securities of any series are to be redeemed, or purchased in an offer to
purchase at any time, the Trustee shall select the Securities of that series to be redeemed or
purchased as follows: (1) if the Securities of such series are listed on any national securities
exchange, in compliance with the requirements of the principal national securities exchange on
which the Securities of that series are listed or (2) if the Securities of that series are not
listed on a national securities exchange, on a pro rata basis, by lot or by such other method as
the Trustee deems fair and appropriate. In the event of a partial redemption or purchase by lot,
the particular Securities to be redeemed or purchased will be selected not less than 45 nor more
than 60 days prior to the redemption or purchase date by the Trustee from Securities of that series
outstanding and not previously called for redemption.




     The Trustee shall notify the Issuer promptly in writing of the Securities or portions of
Securities to be called for redemption or purchase and, in the case of any Securities selected for
partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Except
as otherwise provided as to any particular series of Securities, Securities and portions thereof
that the Trustee selects shall be in amounts equal to the minimum authorized denomination for
Securities of the series to be redeemed or purchased or any integral multiple thereof, except that
if all of the Securities of the series are to be redeemed or purchased, the entire outstanding
amount of the Securities of the series held by such Holder, even if not equal to the minimum
authorized denomination for the Securities of that series, shall be redeemed or purchased.
Provisions of this Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Issuer may acquire Securities by means




14









 







other than redemption, whether pursuant to an Issuer tender offer, open market purchase or
otherwise provided such acquisition does not otherwise violate the other terms of this Indenture.




SECTION 3.03 Notice of Redemption.




     Except as otherwise provided as to any particular series of Securities, at least 30 days but
not more than 60 days before a redemption date, the Issuer shall mail a notice of redemption to
each Holder whose Securities are to be redeemed.



     The notice shall identify the Securities of the series to be redeemed and shall state:




     (1) the redemption date;




     (2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any, to the date fixed
for redemption (the “redemption price”);




     (3) if any Security is being redeemed in part, the portion of the principal
amount of such Security to be redeemed and that, after the redemption date, upon surrender
of such Security, a new Security or Securities in principal amount equal to the unredeemed
portion will be issued upon cancellation of the original Securities;




     (4) the name and address of the Paying Agent;




     (5) that Securities called for redemption must be surrendered to the Paying
Agent to collect the redemption price;




     (6) that, unless the Issuer defaults in payment of the redemption price,
interest on Securities called for redemption ceases to accrue on and after the redemption
date;




     (7) the CUSIP number, if any, of the Securities to be redeemed;




     (8) the paragraph of the Securities and/or the section of the Indenture
pursuant to which the Securities called for redemption are being redeemed; and




     (9) that no representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the Securities.




     At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name
and at its expense, provided, however, that the Issuer shall have delivered to the Trustee, at
least six Business Days prior to the date on which notice is to be given, an Officers’ Certificate
requesting that the Trustee give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph. The notice 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 of the Holder
of any Security shall not affect the validity of the proceeding for the redemption of any other
Security.



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SECTION 3.04 Effect of Notice of Redemption.




     Subject to the subordination provisions of any series of Securities, once notice of redemption
is mailed in accordance with Section 3.03 hereof, Securities called for redemption become due and
payable on the redemption date for the redemption price. Upon surrender to the Paying Agent, such
Securities will be paid at the redemption price.




SECTION 3.05 Deposit of Redemption Price.




     On or before 10:00 a.m., New York City time, on the redemption or purchase date, the Issuer
shall deposit with the Trustee or Paying Agent (or, if the Issuer or any Affiliate is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption or purchase price
of all Securities called for redemption on that date other than Securities that have previously
been delivered by the Issuer to the Trustee for cancellation. The Paying Agent shall return to the
Issuer any money not required for that purpose.




     If the Issuer complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest shall cease to accrue on the Securities (or the portions
thereof) called for redemption or purchase. If a Security is redeemed or purchased on or after an
interest record date but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Securities were registered at the
close of business on such record date. If any Securities called for redemption or purchase shall
not be so paid upon surrender for redemption because of the failure of the Issuer to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase date until such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in accordance with the terms of the
Securities of the series to be redeemed.




SECTION 3.06 Securities Redeemed or Purchased in Part.




     Upon surrender of a Security that is redeemed or purchased in part, the Issuer shall issue and
the Trustee shall authenticate for the Holder at the expense of the Issuer a new Security of same
series equal in principal amount to the unredeemed or unpurchased portion of the Security
surrendered.




ARTICLE 4

COVENANTS




SECTION 4.01 Payment of Securities.




     The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on
the Securities on the dates and in the manner provided in this Indenture and the Securities.
Principal, premium, if any, and interest shall be considered paid on the date due if the Paying
Agent, if other than the Issuer or an Affiliate, holds as of 10:00 a.m., New York City time, on
that date immediately available funds designated for and sufficient to pay all principal, premium,
if any, and interest then due.



16









 






     To the extent lawful, the Issuer shall pay interest on overdue principal and overdue
installments of interest at the rate per annum borne by the applicable series of Securities.



SECTION 4.02 Maintenance of Office or Agency.




     The Issuer shall maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee or Registrar) where
Securities may be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer in respect of the Securities and this Indenture may be served. The
Issuer shall give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee.



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




     The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Issuer in accordance with Section 2.03.




SECTION 4.03 Reports.




     The Issuer 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) that the
Issuer is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
provided, however, the Issuer shall not be required to deliver to the Trustee any materials for
which the Issuer has sought and received confidential treatment by the Commission. The Issuer also
shall comply with the other provisions of TIA Section 314(a). For the avoidance of doubt, nothing
in this Section 4.03 shall require the Issuer to file any such reports, information or documents
with 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
Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).




SECTION 4.04 Compliance Certificate.




          (a) The Issuer or any Guarantors shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Issuer, an Officers’ Certificate stating that a review of the




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activities of the Issuer and its Subsidiaries during the preceding fiscal year (which ends
December 31) has been made under the supervision of the signing Officers (one of whom shall be the
principal executive officer, principal financial officer or principal accounting officer of the
Issuer) with a view to determining whether the Issuer has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Issuer has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Issuer is taking or proposes to
take with respect thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of or interest, if
any, on the Securities is prohibited or if such event has occurred, a description of the event and
what action the Issuer is taking or proposes to take with respect thereto.




          (b) The Issuer shall, so long as any of the Securities are outstanding, deliver to
the Trustee, forthwith upon becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Issuer is taking or
proposes to take with respect thereto.







SECTION 4.05 Taxes.




     The Issuer shall pay prior to delinquency, all material taxes, assessments and governmental
levies except such as are contested in good faith by appropriate proceedings or where the failure
to effect such payment is not adverse in any material respect to the Holders of any Securities.




SECTION 4.06 Stay, Extension and Usury Laws.




     The Issuer and any Guarantors covenant (to the extent that it may lawfully do so) that they
shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and the Issuer and each
Guarantor (to the extent that they may lawfully do so) hereby expressly waive all benefits or
advantages of any such law, and covenant that they shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.



SECTION 4.07 Maintenance of Properties; Insurance; Compliance with Law.




          (a) The Issuer shall, and shall cause each of its Subsidiaries to, at all times
cause all properties used or useful in the conduct of their business to be maintained and kept in
good condition, repair and working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals, replacements,
necessary betterments and necessary improvements thereto.




          (b) The Issuer shall maintain, and shall cause to be maintained for each of its
Subsidiaries, insurance covering such risks as are usually and customarily insured against by




18









 





corporations similarly situated in the markets where the Issuer and the Subsidiaries conduct
homebuilding operations, in such amounts as shall be customary for corporations similarly situated
and with such deductibles and by such methods as shall be customary and reasonably consistent with
past practice.




          (c) The Issuer shall, and shall cause each of its Subsidiaries to, comply with all
statutes, laws, ordinances or government rules and regulations to which they are subject,
non-compliance with which would materially adversely affect the business, earnings, properties,
assets or financial condition of the Issuer and their Subsidiaries taken as a whole.




SECTION 4.08 Payments for Consent.




     The Issuer shall not, and shall not cause or permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of any Securities for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid or agreed to be paid to all Holders which so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.



SECTION 4.09 Legal Existence.




     Subject to Article Five, the Issuer shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its legal existence, and the corporate, partnership
or other existence of each Subsidiary, in accordance with the respective organizational documents
(as the same may be amended from time to time) of each Subsidiary and the rights (charter and
statutory), licenses and franchises of the Issuer and its Subsidiaries; provided that the Issuer
shall not be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries if the Board of Directors of the Issuer
shall determine that the preservation thereof is no longer desirable in the conduct of the business
of the Issuer and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any material respect to the Holders.



ARTICLE 5

SUCCESSORS




SECTION 5.01 When The Issuer May Merge, Etc.




     In addition to provisions applicable to a particular series of Securities, the Issuer shall
not directly or indirectly: (i) consolidate or merge with or into another Person (whether or not
the Issuer is the surviving Person), or (ii) sell, lease, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries
in one or more related transactions to any Person unless:



          (1) either:





     (a) the Issuer is the surviving Person; or



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     (b) the Person formed by or surviving any such consolidation or
merger (if other than the Issuer) or to which such sale, lease, assignment,
transfer, conveyance or other disposition shall have been made assumes (by
supplemental indenture reasonably satisfactory to the Trustee) all the obligations
of the Issuer under the Securities and this Indenture;



          and





     (2) immediately after the transaction no Default or Event of Default exists.



     The Issuer shall deliver to the Trustee on or prior to the consummation of the proposed
transaction an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating that
the proposed transaction and such supplemental indenture comply with this Indenture.



SECTION 5.02 Successor Person Substituted.




     Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition (other than by lease) of all or substantially all of the assets of the Issuer in
accordance with Section 5.01 hereof, the successor Person formed by such consolidation or into
which the Issuer is merged or to which such sale, assignment, transfer, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, conveyance or other disposition, the provisions of this Indenture
referring to the “Issuer” shall refer instead to the successor Person and not to the Issuer), and
may exercise every right and power of, the Issuer under this Indenture with the same effect as if
such successor Person had been named as the Issuer herein; provided, however, that the predecessor
Issuer shall not be relieved from the obligation to pay principal of, and interest on, any
Securities except in the case of a sale, assignment, transfer, conveyance or other disposition of
all of the Issuer’s assets that meets the requirements of Section 5.01 hereof.




ARTICLE 6

DEFAULTS AND REMEDIES




SECTION 6.01 Events of Default.




     Unless as otherwise provided in the establishing Board Resolution, Officers’ Certificate or
supplemental indenture hereto, an “Event of Default” occurs with respect to Securities of any
particular series if:




     (1) the Issuer defaults in the payment of interest on any Security of that
series when the same becomes due and payable and the Default continues for a period of 30
days;




     (2) the Issuer defaults in the payment, when due, of the principal of, or
premium, if any, on any Security of that series when the same becomes due and payable at
maturity, upon redemption (including in connection with any offer to purchase under the
terms of such Securities) or otherwise;



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     (3) an Event of Default, as defined in the Securities of that series, occurs
and is continuing, or the Issuer fails to comply with any of its other agreements in the
Securities of that series or in this Indenture with respect to that series and the Default
continues for the period and after the notice specified below;




     (4) the Issuer pursuant to or within the meaning of any Bankruptcy Law:




     (A) commences a voluntary case;




     (B) consents to the entry of an order for relief against it in an
involuntary case;




     (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property;




     (D) makes a general assignment for the benefit of its creditors; or




     (E) admits in writing its inability generally to pay its debts as
the same become due.





     (5) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:




     (A) is for relief against the Issuer in an involuntary case;




     (B) appoints a Custodian of the Issuer or for all or substantially
all of its property; or




     (C) orders the liquidation of the Issuer; and the order or decree
remains unstayed and in effect for 60 days.





     (6) any other Event of Default provided with respect to Securities of that
series which is specified in a Board Resolution, Officers’ Certificate or supplemental
indenture establishing that series of Securities.



     The term “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for
the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.



     A Default under clause (3) above is not an Event of Default with respect to a particular
series of Securities until the Trustee or the Holders of at least 25% in principal amount of the
then outstanding Securities of that series notify the Issuer of the Default and the Issuer does not
cure the Default within 60 days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a “Notice of Default.” Such notice shall be
given by the Trustee if so requested in writing by the Holders of 25% of the principal amount of
the then outstanding Securities of that series.




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SECTION 6.02 Acceleration.




     If an Event of Default with respect to Securities of any series (other than an Event of
Default specified in clauses (4) and (5) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Issuer, or the Holders of at least 25% in principal amount of the then outstanding
Securities of that series by notice to the Issuer and the Trustee, may, subject to any prior notice
requirements set forth in any supplemental indenture, declare the unpaid principal of and any
accrued interest on all the Securities of that series to be due and payable on the Securities of
that series. Upon such declaration the principal (or such lesser amount) and interest shall be due
and payable immediately. If an Event of Default specified in clause (4) or (5) of Section 6.01
occurs, all of such amount shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder. The Holders of a majority in principal
amount of the then outstanding Securities of that series by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to that series have been cured or waived except
nonpayment of principal (or such lesser amount) or interest that has become due solely because of
the acceleration.



SECTION 6.03 Other Remedies.




     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal or interest on the
Securities of that series or to enforce the performance of any provision of the Securities of that
series or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.




SECTION 6.04 Waiver of Past Defaults.




     Subject to Sections 6.02, 6.08 and 9.02, the Holders of not less than a majority in aggregate
principal amount of the then outstanding Securities of any series, by notice to the Trustee, may on
behalf of the Holders of the Securities of that series, waive an existing Default or Event of
Default with respect to that series and its consequences except a continuing Default or Event of
Default in the payment of the principal (including any mandatory sinking fund or like payment) of,
premium, if any, or interest on any Security of that series (including in connection with an offer
to purchase); provided, however, that the Holders of a majority in aggregate principal amount of
the outstanding Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration and its consequences.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.



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SECTION 6.05 Control by Majority.




     The Holders of a majority in principal amount of the then outstanding Securities of any series
may direct the time, method and place of conducting any proceeding for exercising any remedy with
respect to that series available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of other Holders of Securities
of that series, or that may involve the Trustee in personal liability. The Trustee may take any
other action which it deems proper that is not inconsistent with any such direction.
Notwithstanding any provision to the contrary in this Indenture, the Trustee shall not be obligated
to take any action with respect to the provisions of the Section 6.02 unless directed to do so
pursuant to this Section 6.05.



SECTION 6.06 Limitation on Suits.




     A Holder of Securities of any series may not pursue a remedy with respect to this Indenture or
the Securities unless:





     (1) the Holder gives to the Trustee written notice of a continuing Event of
Default with respect to that series;




     (2) the Holders of at least 25% in principal amount of the then outstanding
Securities of that series make a written request to the Trustee to pursue the remedy;




     (3) such Holder or Holders offer, and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;




     (4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of indemnity; and




     (5) during such 60-day period the Holders of a majority in principal amount
of the then outstanding Securities of that series do not give the Trustee a direction
inconsistent with the request.




     No Holder of any series of Securities may use this Indenture to prejudice the rights of
another Holder of Securities of that series or to obtain a preference or priority over another
Holder of Securities of that series.



SECTION 6.07 No Personal Liability of Directors, Officers, Employees and Stockholders.


     No director, officer, employee, incorporator or stockholder of the Issuer will have any
liability for any obligations of the Issuer under the Securities or this Indenture or of any
Guarantor under any guarantee of any Security or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities and any related Security guarantees.



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SECTION 6.08 Rights of Holders to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal, premium, if any, and interest on the Security, on or after the
respective due dates expressed in the Security (including in connection with any offer to
purchase), or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not, except as provided in the subordination provisions, if any, applicable to such
Security, be impaired or affected without the consent of the Holder.




SECTION 6.09 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing
with respect to Securities of any series, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Issuer for the whole amount of principal (or such portion
of the principal as may be specified as due upon acceleration at that time in the terms of that
series of Securities), premium, if any, and interest, remaining unpaid on the Securities of that
series then outstanding, together with (to the extent lawful) interest on overdue principal and
interest, and such further amount as shall be sufficient to cover the costs and, to the extent
lawful, expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07 hereof.




SECTION 6.10 Trustee May File Proofs of Claim.




     The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any
other amounts due to the Trustee under Section 7.07 hereof) and the Securityholders allowed in any
judicial proceedings relative to the Issuer (or any other obligor on the Securities), its creditors
or its property and shall be entitled to and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims, and any custodian in any such judicial
proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.



SECTION 6.11 Priorities.




     If the Trustee collects any money with respect to Securities of any series pursuant to this
Article, it shall pay out the money in the following order:



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     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expense and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;



     Second: in accordance with the subordination provisions, if any, of the Securities of such
series;



     Third: to Securityholders for amounts due and unpaid on the Securities of such series for
principal, premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities of such series for principal, premium,
if any, and interest, respectively; and



     Fourth: to the Issuer or to such party as a court of competent jurisdiction shall direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Securities of
any series pursuant to this Section. The Trustee shall notify the Issuer in writing reasonably in
advance of any such record date and payment date.




SECTION 6.12 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defense made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder pursuant to Section 6.08 hereof or a suit by Holders of more
than 10% in principal amount of the then outstanding Securities of any series.



ARTICLE 7

TRUSTEE




SECTION 7.01 Duties of Trustee.




          (a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.




          (b) Except during the continuance of an Event of Default known to the Trustee:





          (i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture or the TIA and the Trustee need perform only those duties that
are specifically set forth in this Indenture or the TIA and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and



25









 







          (ii) 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. However, in the case of any certificates or opinions which
by any provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).



          (c) The Trustee may not be relieved from liabilities for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:





          (i) this paragraph does not limit the effect of paragraph (b) of this
Section;




          (ii) the Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer of the Trustee, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and




          (iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant to
Section 6.05 hereof.




          (d) Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.




          (e) No provision of this Indenture shall require the Trustee to expend or risk its
own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right
or power, including without limitation, the provisions of Section 6.05 hereof, unless it receives
security and indemnity satisfactory to it against any loss, liability or expense.




          (f) The Trustee shall not be liable for interest on any money received by it except
as the Trustee may agree in writing with the Issuer. Absent written instruction from the Issuer,
the Trustee shall not be required to invest any such money. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.




SECTION 7.02 Rights of Trustee.




     Subject to TIA Section 315(a) through (d) and Section 7.01 of this Indenture:



          (a) The Trustee may conclusively rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit.




26









 





          (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, or both. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel.




          (c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.




          (d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers under the Indenture, unless
the Trustee’s conduct constitutes negligence.




          (e) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.




          (f) The Trustee may consult with counsel of its selection and may rely upon the
advice of such counsel or any Opinion of Counsel.




          (g) The Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice
of any event that is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities generally or the Securities of a
particular series, as the case may be, and this Indenture.




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







SECTION 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Issuer or an Affiliate with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to TIA Sections 310(b) and 311.



SECTION 7.04 Trustee’s Disclaimer.




     The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Issuer’s use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than its certificate of
authentication.




SECTION 7.05 Notice of Defaults.




     If a Default or Event of Default with respect to the Securities of any series occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to all Holders of Securities
of that series a notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment on any such Security, the Trustee may



27









 





withhold the notice if and so long as the Trustee in good faith determines that withholding the
notice is in the interests of such Securityholders.




SECTION 7.06 Reports by Trustee to Holders.




     Within 60 days after January 1 of any year, the Trustee with respect to any series of
Securities shall mail to Holders of Securities of that series as provided in TIA Section 313(c) a
brief report dated as of such January 1 that complies with TIA Section 313(a) (if such report is
required by TIA Section 313(a)). The Trustee shall also comply with TIA Section 313(b)(2).




     A copy of each report at the time of its mailing to Securityholders shall be mailed to the
Issuer and filed with the Commission and each stock exchange on which any of the Securities are
listed, as required by TIA Section 313(d). The Issuer shall notify the Trustee when the Securities
are listed on any stock exchange, and of any delisting thereof.




SECTION 7.07 Compensation and Indemnity.




     The Issuer shall pay to the Trustee from time to time such compensation as shall be agreed
upon in writing for its services hereunder (which compensation shall not be limited by any
provision of law in regard to compensation of a trustee of an express trust). The Issuer shall
reimburse the Trustee upon written request for all reasonable out-of-pocket expenses incurred by
it. Such expenses shall include the reasonable compensation and out-of-pocket expenses of the
Trustee’s agents and counsel.




     The Issuer shall indemnify and hold harmless each of the Trustee or any predecessor Trustee
for any loss, liability, damage, claims or expenses, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee) incurred by it, without negligence or bad
faith on its part, in connection with the acceptance or administration of this Indenture and its
duties hereunder. The Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity. The Trustee may have separate counsel and the Issuer shall pay the reasonable fees and
expenses of such counsel. The Issuer need not pay for any settlement made without its consent.




     Notwithstanding the foregoing, the Issuer and the Guarantors need not reimburse the Trustee
for any expense or indemnify it against any loss or liability incurred by the Trustee through its
negligence or bad faith. To secure the Issuer’s payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or collected by the Trustee
in its capacity as Trustee, except money or property held in trust to pay principal and interest on
particular Securities. Such lien will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(4) or (5) hereof occurs, the expenses and the compensation for the services will be
intended to constitute expenses of administration under any applicable Bankruptcy Law.




     This Section 7.07 shall survive the resignation or renewal of the Trustee and the termination
of this Indenture.



28









 






SECTION 7.08 Replacement of Trustee.




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




     The Trustee may resign with respect to one or more or all series of Securities by so notifying
the Issuer in writing. The Holders of a majority in principal amount of the then outstanding
Securities of any series may remove the Trustee as to that series by so notifying the Trustee in
writing and may appoint a successor Trustee with the Issuer’s consent. The Issuer may remove the
Trustee with respect to one or more or all series of Securities if:




     (1) the Trustee fails to comply with Section 7.10 hereof;




     (2) the Trustee is adjudged a bankrupt or an insolvent;




     (3) a receiver or other public officer takes charge of the Trustee or its
property; or




     (4) the Trustee becomes incapable of acting.



     If, as to any series of Securities, the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee for
that series. Within one year after the successor Trustee with respect to any series takes office,
the Holders of a majority in principal amount of the then outstanding Securities of that series may
appoint a successor Trustee to replace the successor Trustee appointed by the Issuer. If a
successor Trustee as to a particular series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders of at least 10% in
principal amount of the then outstanding Securities of that series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.



     If the Trustee fails to comply with Section 7.10 hereof with respect to any series, any Holder
of Securities of that series who satisfies the requirements of TIA Section 310(b) may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for that series.




     A successor Trustee as to any series of Securities shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately after that, the retiring
Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee
(subject to the lien provided for in Section 7.07 hereof), the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture as to that series. The successor Trustee
shall mail a notice of its succession to the Holders of Securities of that series.



     Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s
obligations under Section 7.07 hereof shall continue for the benefit of the retiring trustee.



29









 






     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Issuer, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and that (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) shall contain such provisions as shall be necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall
be necessary or desirable to provide for or facilitate the administration of the trusts hereunder
by more than one Trustee; provided, however, that nothing herein or in such supplemental Indenture
shall constitute such Trustee co-trustees of the same trust and that each such Trustee shall be
trustee of a trust hereunder separate and apart from any trust hereunder administered by any other
such Trustee.




     Upon the execution and delivery of such supplemental Indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.



SECTION 7.09 Successor Trustee by Merger, Etc.




     If the Trustee as to any series of Securities consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee as to that series.



SECTION 7.10 Eligibility; Disqualification.




     Each series of Securities shall always have a Trustee who satisfies the requirements of TIA
Section 310(a)(1) and (2). The Trustee as to any series of Securities shall always have a combined
capital and surplus of at least $100,000,000 as set forth in its most recent published annual
report of condition. The Trustee is subject to TIA Section 310(b), including the provision in
Section 310(b)(1).



SECTION 7.11 Preferential Collection of Claims Against the Issuer.




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



SECTION 7.12 Paying Agents.




     The Issuer shall cause each Paying Agent other than the Trustee to execute and deliver to it
and the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 7.12:



30









 





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




          (b) that it will at any time during the continuance of any Event of Default, upon
written request from the Trustee, deliver to the Trustee all sums so held in trust by it together
with a full accounting thereof; and




          (c) that it will give the Trustee written notice within three (3) Business Days of
any failure of the Issuer (or by any obligor on the Securities) in the payment of any installment
of the principal of, premium, if any, or interest on, the Securities when the same shall be due and
payable.








ARTICLE 8

SATISFACTION AND DISCHARGE; DEFEASANCE




SECTION 8.01 Satisfaction and Discharge.




     This Indenture will be discharged and will cease to be of further effect with respect to any
series of Securities issued hereunder, when either:




     (1) all Securities of such series that have been authenticated (except lost,
stolen or destroyed Securities that have been replaced or paid and Securities for whose
payment money has theretofore been deposited in trust and thereafter repaid to the Issuer)
have been delivered to the Trustee for cancellation; or




     (2) (a) all Securities of such series that have not been delivered
to the Trustee for cancellation have become due and payable by reason of the making of a
notice of redemption or otherwise or will become due and payable within one year and the
Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S.
dollars, non-callable U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient without consideration of any reinvestment of interest, to pay
and discharge the entire indebtedness on the Securities not delivered to the Trustee for
cancellation for principal, premium and accrued interest to the date of maturity or
redemption,




          (b) no Default or Event of Default with respect to such series of Securities
shall have occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other material instrument to which the Issuer or any
Guarantor is a party to or by which the Issuer or any Guarantor is bound;




          (c) the Issuer or any Guarantor has paid or caused to be paid all sums
payable by it under this Indenture with respect to such series of Securities; and



31









 









          (d) the Issuer has delivered irrevocable instructions to the Trustee under
this Indenture to apply the deposited money toward the payment of the Securities of such
series at maturity or the redemption date, as the case may be.



     In addition, the Issuer must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.



     Notwithstanding, the satisfaction and discharge of this Indenture with respect to a series of
Securities, if money shall have been deposited with the Trustee pursuant to subclause (a) of clause
(2) of this Section, the provisions of Section 8.06 shall survive.



SECTION 8.02 Option to Effect Legal Defeasance or Covenant Defeasance.




     Unless Section 8.03 or 8.04 is otherwise specified to be inapplicable to Securities of a
series, the Issuer may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 8.03 or 8.04 hereof be
applied to all outstanding Securities of any such series upon compliance with the conditions set
forth below in this Article Eight.



SECTION 8.03 Legal Defeasance and Discharge.




     Upon the Issuer’s exercise under Section 8.02 hereof of the option applicable to this
Section 8.03, the Issuer and any Guarantor shall, subject to the satisfaction of the conditions set
forth in Section 8.05 hereof, be deemed to have been discharged from their respective obligations
with respect to all outstanding Securities of any series on the date the conditions set forth below
are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the
Issuer and any Guarantor shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities of a series, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.06 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other obligations under such
Securities and this Indenture (and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in Section 8.05 hereof, and
as more fully set forth in such Section, payments in respect of the principal of, premium and
interest on such Securities when such payments are due, (b) the Issuer’s obligations with respect
to such Securities under Article 2 and Section 4.03 hereof, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Issuer’s or any Guarantors’ obligations in
connection therewith and (d) this Article Eight. Subject to compliance with this Article Eight,
the Issuer may exercise its option under this Section 8.03 notwithstanding the prior exercise of
its option under Section 8.04 hereof.



SECTION 8.04 Covenant Defeasance.




     Upon the Issuer’s exercise under Section 8.02 hereof of the option applicable to this
Section 8.04, the Issuer or any Guarantors shall, subject to the satisfaction of the conditions set
forth in Section 8.05 hereof, be released from their respective obligations under the covenants
contained in Sections 4.03, 4.04, 4.05, 4.06, 4.07 and 4.08, and Section 5.01 hereof with respect



32









 





to the outstanding Securities of any series on and after the date the conditions set forth in
Section 8.05 are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of such series
shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Securities of any series,
the Issuer or any Guarantors may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
In addition, upon the Issuer’s exercise under Section 8.02 hereof of the option applicable to this
Section 8.04 hereof, subject to the satisfaction of the conditions set forth in Section 8.05
hereof, Sections 6.01(3) through 6.01(6) hereof shall not constitute Events of Default.




SECTION 8.05 Conditions to Legal or Covenant Defeasance.




     The following shall be the conditions to the application of either Section 8.03 or 8.04 hereof
to the outstanding Securities of any series. In order to exercise either Legal Defeasance or
Covenant Defeasance:



          (a) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders, cash in United States dollars, non-callable U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, premium and interest on
the outstanding Securities on the stated date for payment thereof or on the applicable redemption
date, as the case may be;




          (b) in the case of an election under Section 8.03 hereof, the Issuer shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that (A) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date hereof, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;




          (c) in the case of an election under Section 8.04 hereof, the Issuer shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Securities will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;




33









 






          (d) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit (other than a Default or Event of Default resulting from the incurrence of
Indebtedness all or a portion of the proceeds of which will be used to defease the Securities
pursuant to this Article Eight concurrently with such incurrence) or insofar as Sections 6.01(4) or
6.01(5) hereof is concerned, at any time in the period ending on the 91st day after the date of
deposit;




          (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other than this
Indenture) to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any
of its Subsidiaries is bound;




          (f) the Issuer shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Issuer with the intent of preferring the Holders over any
other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Issuer; and




          (g) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to the
Legal Defeasance or the Covenant Defeasance have been complied with.







SECTION 8.06 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions




     Subject to Section 8.07 hereof, all money and non-callable U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.06, the “Trustee”) pursuant to Section 8.01 or
Section 8.05 hereof in respect of the outstanding Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent)
as the Trustee may determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.



     The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to
Section 8.05 hereof or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the outstanding
Securities.



     Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver or
pay to the Issuer from time to time upon the request of the Issuer any money or non-callable U.S.
Government Obligations held by it as provided in Section 8.05 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 8.05(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.



34









 





SECTION 8.07 Repayment to the Issuer.


     Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust
for the payment of the principal of, premium, if any, or interest on any Securities 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 Issuer on its request or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Securities shall thereafter look only to the
Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Issuer 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 Issuer 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 Issuer.



SECTION 8.08 Reinstatement.


     If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
U.S. Government Securities in accordance with Section 8.01, 8.03 or 8.04 hereof, as the case may
be, by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Issuer’s obligations under this
Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.03 or 8.04 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.03 or 8.04 hereof, as the case may be;
provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or
interest on any Securities following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.



ARTICLE 9
SUPPLEMENTS, AMENDMENTS AND WAIVERS


SECTION 9.01 Without Consent of Holders.


     The Issuer and the Trustee as to any series of Securities may supplement or amend this
Indenture or the Securities without notice to or the consent of any Securityholder:


     (1) to cure any ambiguity, defect or inconsistency;


     (2) to comply with Article 5;


     (3) to comply with any requirements of the Commission in connection with the
qualification of this Indenture under the TIA;


     (4) to provide for uncertificated Securities in addition to or in place of
certificated Securities;


35








 







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




     (6) to make any change that does not adversely affect in any material
respect the interests of the Securityholders of any series; or

(7) to establish additional series of Securities as permitted by
Section 2.01 hereof.



SECTION 9.02 With Consent of Holders.




     This Indenture or any series of Securities may be amended with the consent (which may include
consents obtained in connection with a tender offer or exchange offer for that series of
Securities) of the Holders of at least a majority in aggregate principal amount of the series of
the Securities then outstanding, and any existing Default under, or compliance with any provision
of, this Indenture may be waived (other than any continuing Default in the payment of the principal
or interest on the Securities) with the consent (which may include consents obtained in connection
with a tender offer or exchange offer for that series of Securities) of the Holders of a majority
in aggregate principal amount of the Securities of that series then outstanding; provided
that without the consent of each Holder affected, the Issuer and the Trustee may not:




     (1) change the maturity of any Security;




     (2) reduce the amount, extend the due date or otherwise affect the terms of
any scheduled payment of interest on or principal of the Securities;




     (3) reduce any premium payable upon optional redemption of the Securities,
change the date on which any Securities are subject to redemption or otherwise alter the
provisions with respect to the redemption of the Securities;




     (4) make any Security payable in money or currency other than that stated in
the Securities;




     (5) modify or change any provision of this Indenture or the related
definitions to affect the ranking of the Securities or any Security guarantee in a manner
that adversely affects the Holders;




     (6) reduce the percentage of Holders necessary to consent to an amendment or
waiver to this Indenture or the Securities;




     (7) impair the rights of Holders to receive payments of principal of or
interest on the Securities;



36









 







     (8) release any Guarantor from any of its obligations under its Security
guarantee or this Indenture, except as permitted by this Indenture; or




     (9) make any change in this Section 9.02.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer
shall mail to the Holders a notice briefly describing the amendment, supplement or waiver.



     Upon the written request of the Issuer, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the receipt by the Trustee of evidence
reasonably satisfactory to the Trustee of the consent of the Holders as aforesaid and upon receipt
by the Trustee of the documents described in Section 9.06, the Trustee shall join with the Issuer
and the Guarantors in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee’s own rights, duties or immunities under this Indenture, in which
case the Trustee may, 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 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.




SECTION 9.03 Compliance with the Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Securities shall comply with the TIA as
then in effect.



SECTION 9.04 Revocation and Effect of Consents.




     Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if notation of the consent
is not made on any Security; provided, however, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the written notice of
revocation before the date on which the amendment, supplement or waiver becomes effective. An
amendment, supplement or waiver shall become effective in accordance with its terms and thereafter
shall bind every Holder of Securities of that series.



SECTION 9.05 Notation on or Exchange of Securities.




     If an amendment, supplement or waiver changes the terms of a Security: (a) the Trustee may
require the Holder of the Security to deliver it to the Trustee, the Trustee may, at the written
direction of the Issuer and at the Issuer’s expense, place an appropriate notation on the Security
about the changed terms and return it to the Holder and the Trustee may place an appropriate
notation on any Security thereafter authenticated; or (b) if the Issuer or the Trustee so
determines, the Issuer in exchange for the Security shall issue and the Trustee shall authenticate
a new Security that reflects the changed terms.



37









 






     Failure to make the appropriate notation or issue a new Security shall not affect the validity
and effect of such amendment, supplement or waiver.



SECTION 9.06 Trustee to Sign Amendments, Etc.




     Subject to the preceding sentence, the Trustee shall sign any amendment of supplement
Indenture if the same does not adversely affect the rights, duties, liabilities or immunities of
the Trustee. The Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee’s own rights, duties, liabilities or immunities under
this Indenture or otherwise. The Issuer may not sign an amendment or supplemental Indenture until
the Board of Directors approves it. In executing any amended or supplemental Indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in
relying upon, in addition to the documents required by Section 11.04 hereof, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
Indenture is authorized or permitted by this Indenture.



ARTICLE 10

GUARANTEES




SECTION 10.01 Guarantee.




     Any series of Securities may be guaranteed by one or more of the Guarantors. The terms and
the form of any such guarantee will be established in the manner contemplated by Section 2.01 for
that particular series of Securities.



ARTICLE 11

MISCELLANEOUS




SECTION 11.01 Trust Indenture Act Controls.




     If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required provision shall control. If
any provision of this Indenture modifies any TIA provision that may be so modified, such TIA
provision shall be deemed to apply to this Indenture as so modified. If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.



     The provision of TIA Sections 310 through 317 that impose duties on any Person (including the
provisions automatically deemed included unless expressly excluded by this Indenture) are a part of
and govern this Indenture, whether or not physically contained herein.



SECTION 11.02 Notices.




     Any notice or communication is duly given if in writing and delivered in person or sent by
first-class mail (registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next-day delivery, addressed as follows:



38









 






          If to the Issuer and/or any Guarantor:



Mobile Mini, Inc.

7420 S. Kyrene Road, Suite 101

Tempe, Arizona 85283

Attention: Chief Financial Officer




          with a copy to:



Mobile Mini, Inc.

7420 S. Kyrene Road, Suite 101

Tempe, Arizona 85283

Attention: General Counsel




          If to the Trustee:



Law Debenture Trust Company of New York

[address]

New York, New York 10016

Attention:




     The Issuer or the Trustee by notice to the other 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 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.



     Any notice or communication to a Securityholder shall be mailed by first-class mail, certified
or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery
to his address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Security holder or any defect in it shall not affect its sufficiency with
respect to other Securityholders. If the Issuer mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee at the same time. Any notice or communication
shall also be mailed to any Person described in TIA Section 313(c), to the extent required by the
TIA.



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




SECTION 11.03 Communication by Holders With Other Holders.




     Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Issuer, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).



39









 






SECTION 11.04 Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Issuer to the Trustee to take any action under this
Indenture, the Issuer shall furnish to the Trustee:



          (a) an Officers’ Certificate, in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 11.05 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 complied with; and




          (b) an Opinion of Counsel, in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 11.05 hereof) stating that, in the
opinion of such counsel, such action is authorized or permitted by this Indenture and that all such
conditions precedent have been complied with.







SECTION 11.05 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than the certificate provided pursuant to TIA Section 314(a)(4)) 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 complied with; and




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




SECTION 11.06 Rules by Trustee and Agents.




     The Trustee as to Securities of any series may make reasonable rules for action by or at a
meeting of Holders of Securities of that series. The Registrar and any Paying Agent or
Authenticating Agent may make reasonable rules and set reasonable requirements for their functions.



SECTION 11.07 Legal Holidays.




     A “Legal Holiday” is a Saturday, a Sunday or a day on which banking institutions in the City
of New York, New York or at a place of payment are authorized by law, regulation or



40









 





executive order to remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.




SECTION 11.08 No Recourse Against Others.




     No past, present or future director, officer, employee, manager, securityholder or
incorporator, as such, of the Issuer or any successor Person shall have any liability for any
obligations of the Issuer or any Guarantor under any series of Securities, any guarantees thereof,
or the Indenture or for any claim based on, in respect of, or by reason of such obligations or
their creation. Each Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration of issuance of the Securities.



SECTION 11.09 Counterparts.




     This Indenture may be executed by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement.



SECTION 11.10 Governing Law.




     The internal laws of the State of New York shall govern and be used to construe this Indenture
and the Securities (including any guarantees thereof), without giving effect to the applicable
principles of conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.



SECTION 11.11 Submission to Jurisdiction; Service of Process; Waiver of Jury Trial.




     Each party hereto hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York State Court sitting in New
York City for purposes of all legal proceedings arising out of or relating to this Indenture, the
Securities (including any guarantee thereof) or the transactions contemplated hereby and thereby.
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the State of New York. Without limiting the
foregoing, the parties agree that service of process upon such party at the address referred to in
Section 11.02, together with written notice of such service to such party, shall be deemed
effective service of process upon such party. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES (INCLUDING ANY GUARANTEE THEREOF) OR THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY.



41









 






SECTION 11.12 Severability.




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



SECTION 11.13 Effect of Headings, Table of Contents, Etc.




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


SECTION 11.14 Successors and Assigns.


     All covenants and agreements of the Issuer in this Indenture and the Securities shall bind its
successors and assigns. All agreements of the Trustee in this Indenture shall bind its successor.
All agreements of any Guarantor in this Indenture shall bind its successors, except as otherwise
provided by the terms hereof.



SECTION 11.15 No Interpretation of Other Agreements.




     This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Issuer or any subsidiary or of any Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.



[Signature Page Follows]




42








 





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



	 	 	 	 	 
	 	MOBILE MINI, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Any Required Subsidiary Guarantors]




	 	 	 	 	 
	 	











Law Debenture Trust Company of New York,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: