Exhibit
4.1


 


NAVISTAR INTERNATIONAL
CORPORATION,


 


INTERNATIONAL TRUCK AND
ENGINE CORPORATION


 


and


 


BNY MIDWEST TRUST COMPANY,
as Trustee


 


SENIOR DEBT SECURITIES


 












 


INDENTURE


 


Dated as of June 2,
2004


 












 

















 


CROSS REFERENCE SHEET*


 


Provisions of Trust Indenture
Act of 1939, as amended, and Indenture to be dated as of June 2, 2004
among Navistar International Corporation, International Truck and Engine
Corporation and BNY Midwest Trust Company, as Trustee:


 


	
  Section of the Act

  	
   

  	
  Section of
  Indenture

  
	
  310(a)(1) and (2)

  	
   

  	
  6.9

  
	
  310(a)(3) and (4)

  	
   

  	
  Inapplicable

  
	
  310(b)

  	
   

  	
  6.8 and 6.10(a), (b) and
  (d)

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  6.13(a) and (c)(1) and
  (2)

  
	
  311(b)

  	
   

  	
  6.13(b)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  4.1 and 4.2(a)

  
	
  312(b)

  	
   

  	
  4.2(a) and (b)

  
	
  312(c)

  	
   

  	
  4.2(c)

  
	
  313(a)

  	
   

  	
  4.4(a)(i), (ii), (iii),
  (iv),(v), (vi) and (vii)

  
	
  313(b)(1)

  	
   

  	
  Inapplicable

  
	
  313(b)(2)

  	
   

  	
  4.4

  
	
  313(c)

  	
   

  	
  4.4

  
	
  313(d)

  	
   

  	
  4.4

  
	
  314(a)

  	
   

  	
  4.3

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)(1) and (2)

  	
   

  	
  11.5

  
	
  314(c)(3)

  	
   

  	
  Inapplicable

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  11.5

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a), (c) and (d)

  	
   

  	
  6.1

  
	
  315(b)

  	
   

  	
  5.11

  
	
  315(e)

  	
   

  	
  5.12

  
	
  316(a)(1)

  	
   

  	
  5.9 and 5.10

  
	
  316(a)(2)

  	
   

  	
  Not required

  
	
  316(a) (last sentence)

  	
   

  	
  7.4

  
	
  316(b)

  	
   

  	
  5.7

  
	
  316(c)

  	
   

  	
  7.6

  
	
  317(a)

  	
   

  	
  5.2

  
	
  317(b)

  	
   

  	
  3.4(a) and (b)

  
	
  318(a)

  	
   

  	
  11.7

  



 












*                 This Cross Reference Sheet is not
part of the Indenture.


 


2

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
   

  
	
   

  	
  SECTION 1.1 Certain Terms Defined

  	
   

  
	
   

  	
   

  	
  “Additional Amounts”

  	
   

  
	
   

  	
   

  	
  “Board of Directors”

  	
   

  
	
   

  	
   

  	
  “Business Day”

  	
   

  
	
   

  	
   

  	
  “Commission”

  	
   

  
	
   

  	
   

  	
  “Company”

  	
   

  
	
   

  	
   

  	
  “Company Notice”

  	
   

  
	
   

  	
   

  	
  “Component Currency”

  	
   

  
	
   

  	
   

  	
  “Conversion Date”

  	
   

  
	
   

  	
   

  	
  “Conversion Event”

  	
   

  
	
   

  	
   

  	
  “Corporate Trust Office”

  	
   

  
	
   

  	
   

  	
  “Coupon”

  	
   

  
	
   

  	
   

  	
  “Coupon Security”

  	
   

  
	
   

  	
   

  	
  “Currency”

  	
   

  
	
   

  	
   

  	
  “Currency Determination Agent”

  	
   

  
	
   

  	
   

  	
  “Dollar”

  	
   

  
	
   

  	
   

  	
  “Dollar Equivalent of the Currency Unit”

  	
   

  
	
   

  	
   

  	
  “Dollar Equivalent of the Foreign Currency”

  	
   

  
	
   

  	
   

  	
  “Euro”

  	
   

  
	
   

  	
   

  	
  “European Communities”

  	
   

  
	
   

  	
   

  	
  “European Monetary System”

  	
   

  
	
   

  	
   

  	
  “Event of Default”

  	
   

  
	
   

  	
   

  	
  “Exchange Rate Officer’s Certificate”

  	
   

  
	
   

  	
   

  	
  “Foreign Currency”

  	
   

  
	
   

  	
   

  	
  “Government Obligations”

  	
   

  
	
   

  	
   

  	
  “Guaranty”

  	
   

  
	
   

  	
   

  	
  “Holder”, “Holder of Securities”,
  “Securityholder”

  	
   

  
	
   

  	
   

  	
  “Indenture”

  	
   

  
	
   

  	
   

  	
  “interest,”

  	
   

  
	
   

  	
   

  	
  “Market Exchange Rate”

  	
   

  
	
   

  	
   

  	
  “non-United States Person”

  	
   

  
	
   

  	
   

  	
  “Officer’s Certificate”

  	
   

  
	
   

  	
   

  	
  “Opinion of Counsel”

  	
   

  
	
   

  	
   

  	
  “Original Issue Date”

  	
   

  
	
   

  	
   

  	
  “Original Issue Discount Security”

  	
   

  
	
   

  	
   

  	
  “Outstanding”

  	
   

  
	
   

  	
   

  	
  “Paying Agent”

  	
   

  
	
   

  	
   

  	
  “Person”

  	
   

  
	
   

  	
   

  	
  “Place of Payment,”

  	
   

  
	
   

  	
   

  	
  “principal”

  	
   

  
	
   

  	
   

  	
  “Principal Property”

  	
   

  



 

















 


	
   

  	
   

  	
  “Registered
  Holder”

  	
   

  
	
   

  	
   

  	
  “Registered Security”

  	
   

  
	
   

  	
   

  	
  “Responsible Officer”

  	
   

  
	
   

  	
   

  	
  “Security” or “Securities”

  	
   

  
	
   

  	
   

  	
  “Series” or “Series of Securities”

  	
   

  
	
   

  	
   

  	
  “Specified Amount”

  	
   

  
	
   

  	
   

  	
  “Subsidiary”

  	
   

  
	
   

  	
   

  	
  “Tranche”

  	
   

  
	
   

  	
   

  	
  “Trustee”

  	
   

  
	
   

  	
   

  	
  “Trust Indenture Act of 1939” or “Trust Indenture Act”

  	
   

  
	
   

  	
   

  	
  “United States of America”

  	
   

  
	
   

  	
   

  	
  “United States Person”

  	
   

  
	
   

  	
   

  	
  “Unregistered Security”

  	
   

  
	
   

  	
   

  	
  “Valuation Date”

  	
   

  
	
   

  	
   

  	
  “vice president”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II SECURITIES

  	
   

  
	
   

  	
  SECTION 2.1 Forms Generally

  	
   

  
	
   

  	
  SECTION 2.2 Amount Unlimited; Issuable
  In Series

  	
   

  
	
   

  	
  SECTION 2.3 Authentication and Delivery
  of Securities

  	
   

  
	
   

  	
  SECTION 2.4 Execution of Securities

  	
   

  
	
   

  	
  SECTION 2.5 Certificate of
  Authentication

  	
   

  
	
   

  	
  SECTION 2.6 Denomination and Date of
  Securities; Payments of Interest

  	
   

  
	
   

  	
  SECTION 2.7 Registration, Transfer and
  Exchange

  	
   

  
	
   

  	
  SECTION 2.8 Mutilated, Defaced,
  Destroyed, Lost and Stolen Securities

  	
   

  
	
   

  	
  SECTION 2.9 Cancellation of Securities

  	
   

  
	
   

  	
  SECTION 2.10 Temporary Securities

  	
   

  
	
   

  	
  SECTION 2.11 Currency and Manner of
  Payments In Respect of Securities

  	
   

  
	
   

  	
  SECTION 2.12 Compliance With Certain
  Laws and Regulations

  	
   

  
	
   

  	
  SECTION 2.13 CUSIP Numbers

  	
   

  
	
   

  	
  SECTION 2.14 Securities In Global Form

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III COVENANTS

  	
   

  
	
   

  	
  SECTION 3.1 Payment of Principal and
  Interest

  	
   

  
	
   

  	
  SECTION 3.2 Offices For Payment, Etc

  	
   

  
	
   

  	
  SECTION 3.3 Appointment To Fill A
  Vacancy In Office of Trustee

  	
   

  
	
   

  	
  SECTION 3.4 Paying Agents

  	
   

  
	
   

  	
  SECTION 3.5 Additional Amounts

  	
   

  
	
   

  	
  SECTION 3.6 Calculation of Original
  Issue Discount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV SECURITYHOLDERS’ LISTS AND
  REPORTS BY THE ISSUER AND THE TRUSTEE

  	
   

  
	
   

  	
  SECTION 4.1 Company to Furnish Trustee
  Information As to Names and Addresses of Securityholders

  	
   

  
	
   

  	
  SECTION 4.2 Preservation and
  Disclosure of Securityholders’ Lists

  	
   

  
	
   

  	
  SECTION 4.3 Reports By the Company

  	
   

  
	
   

  	
  SECTION 4.4 Reports By the Trustee

  	
   

  



 

















 


	
  ARTICLE V REMEDIES OF THE TRUSTEE AND
  SECURITYHOLDERS ON EVENT OF DEFAULT

  	
   

  
	
   

  	
  SECTION 5.1 Event of Default Defined;
  Acceleration of Maturity; Waiver of Default

  	
   

  
	
   

  	
  SECTION 5.2 Collection of Indebtedness
  By Trustee; Trustee May Prove Debt

  	
   

  
	
   

  	
  SECTION 5.3 Application of Proceeds

  	
   

  
	
   

  	
  SECTION 5.4 Suits for Enforcement

  	
   

  
	
   

  	
  SECTION 5.5 Restoration of Rights On
  Abandonment of Proceedings

  	
   

  
	
   

  	
  SECTION 5.6 Limitations on Suits By
  Securityholders

  	
   

  
	
   

  	
  SECTION 5.7 Unconditional Right of
  Securityholders To Institute Certain Suits

  	
   

  
	
   

  	
  SECTION 5.8 Powers and Remedies
  Cumulative; Delay Or Omission Not Waiver of Default

  	
   

  
	
   

  	
  SECTION 5.9 Control By Securityholders

  	
   

  
	
   

  	
  SECTION 5.10 Waiver of Past Defaults

  	
   

  
	
   

  	
  SECTION 5.11 Trustee To Give Notice of
  Default, But May Withhold In Certain Circumstances

  	
   

  
	
   

  	
  SECTION 5.12 Right of Court To Require
  Filing of Undertaking To Pay Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI CONCERNING THE TRUSTEE

  	
   

  
	
   

  	
  SECTION 6.1 Duties and
  Responsibilities of The Trustee; During Default; Prior to Default

  	
   

  
	
   

  	
  SECTION 6.2 Certain Rights of The
  Trustee

  	
   

  
	
   

  	
  SECTION 6.3 Trustee Not Responsible
  For Recitals, Disposition of Securities Or Application of Proceeds Thereof

  	
   

  
	
   

  	
  SECTION 6.4 Trustee and Agents May
  Hold Securities; Collections, Etc

  	
   

  
	
   

  	
  SECTION 6.5 Moneys Held By Trustee

  	
   

  
	
   

  	
  SECTION 6.6 Compensation and
  Indemnification of Trustee and Its Prior Claim

  	
   

  
	
   

  	
  SECTION 6.7 Right of Trustee to Rely
  On Officer’s Certificate, Etc

  	
   

  
	
   

  	
  SECTION 6.8 Disqualification Of
  Trustee; Conflicting Interests

  	
   

  
	
   

  	
  SECTION 6.9 Persons Eligible For
  Appointment As Trustee

  	
   

  
	
   

  	
  SECTION 6.10 Resignation and Removal;
  Appointment of Successor Trustee

  	
   

  
	
   

  	
  SECTION 6.11 Acceptance of Appointment
  By Successor Trustee

  	
   

  
	
   

  	
  SECTION 6.12 Merger, Conversion,
  Consolidation Or Succession to Business of Trustee

  	
   

  
	
   

  	
  SECTION 6.13 Preferential Collection
  of Claims Against the Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII CONCERNING THE
  SECURITYHOLDERS

  	
   

  
	
   

  	
  SECTION 7.1 Evidence of Action Taken
  By Securityholders

  	
   

  
	
   

  	
  SECTION 7.2 Proof of Execution of
  Instruments

  	
   

  
	
   

  	
  SECTION 7.3 Holders To Be Treated As
  Owners

  	
   

  
	
   

  	
  SECTION 7.4 Securities Owned By
  Company Deemed Not Outstanding

  	
   

  
	
   

  	
  SECTION 7.5 Right of Revocation of
  Action Taken

  	
   

  
	
   

  	
  SECTION 7.6 Record Date For
  Determination of Holders Entitled To Vote

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
  SECTION 8.1 Supplemental Indentures
  Without Consent of Securityholders

  	
   

  
	
   

  	
  SECTION 8.2 Supplemental Indentures
  With Consent of Securityholders

  	
   

  



 

















 


	
   

  	
  SECTION 8.3 Effect of Supplemental
  Indenture

  	
   

  
	
   

  	
  SECTION 8.4 Documents to Be Given to
  Trustee

  	
   

  
	
   

  	
  SECTION 8.5 Notation On Securities In
  Respect of Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX CONSOLIDATION, MERGER, SALE
  OR CONVEYANCE

  	
   

  
	
   

  	
  SECTION 9.1 Successor Corporation
  Substituted

  	
   

  
	
   

  	
  SECTION 9.2 Opinion of Counsel to
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X SATISFACTION AND DISCHARGE
  OF INDENTURE; UNCLAIMED MONEYS

  	
   

  
	
   

  	
  SECTION 10.1 Satisfaction and
  Discharge Of Indenture

  	
   

  
	
   

  	
  SECTION 10.2 Application By Trustee Of
  Funds Deposited For Payment Of Securities

  	
   

  
	
   

  	
  SECTION 10.3 Repayment Of Moneys Held
  By Paying Agent

  	
   

  
	
   

  	
  SECTION 10.4 Return Of Unclaimed
  Moneys Held By Trustee and Paying Agent

  	
   

  
	
   

  	
  SECTION 10.5 Reinstatement Of
  Company’s Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
  SECTION 11.1 Incorporators,
  Stockholders, Officers and Directors Of Company Exempt From Individual
  Liability

  	
   

  
	
   

  	
  SECTION 11.2 Provisions Of Indenture
  For the Sole Benefit Of Parties and Securityholders

  	
   

  
	
   

  	
  SECTION 11.3 Successors and Assigns Of
  Company Bound By Indenture

  	
   

  
	
   

  	
  SECTION 11.4 Notices and Demands On
  Company, Trustee and Securityholders

  	
   

  
	
   

  	
  SECTION 11.5 Officer’s Certificates
  and Opinions Of Counsel; Statements To Be Contained Therein

  	
   

  
	
   

  	
  SECTION 11.6 Payments Due On
  Saturdays, Sundays and Holidays

  	
   

  
	
   

  	
  SECTION 11.7 Conflict Of Any Provision
  Of Indenture With Trust Indenture Act Of 1939

  	
   

  
	
   

  	
  SECTION 11.8 New York Law To Govern

  	
   

  
	
   

  	
  SECTION 11.9 Counterparts

  	
   

  
	
   

  	
  SECTION 11.10 Effect Of Headings

  	
   

  
	
   

  	
  SECTION 11.11 Determination Of
  Principal Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII REDEMPTION OF SECURITIES
  AND SINKING FUNDS

  	
   

  
	
   

  	
  SECTION 12.1 Applicability Of Article

  	
   

  
	
   

  	
  SECTION 12.2 Notice Of Redemption;
  Partial Redemptions

  	
   

  
	
   

  	
  SECTION 12.3 Payment Of Securities
  Called For Redemption

  	
   

  
	
   

  	
  SECTION 12.4 Exclusion Of Certain
  Securities From Eligibility For Selection For Redemption

  	
   

  
	
   

  	
  SECTION 12.5 Mandatory and Optional
  Sinking Funds

  	
   

  
	
   

  	
  SECTION 12.6 Repayment At the Option
  Of the Holders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII GUARANTIES

  	
   

  
	
   

  	
  SECTION 13.1 Guaranty

  	
   

  
	
   

  	
  SECTION 13.2 Limitation On Guarantor
  Liability

  	
   

  
	
   

  	
  SECTION 13.3 Execution and Delivery Of
  Guaranty

  	
   

  
	
   

  	
  SECTION 13.4 Release of Guaranty

  	
   

  



 

















 


THIS INDENTURE, dated as
of June 2, 2004, among NAVISTAR INTERNATIONAL CORPORATION, a Delaware
corporation (the “Company”), INTERNATIONAL TRUCK AND ENGINE CORPORATION,
a Delaware corporation (“International” and, together with any other
Person who shall guarantee Securities pursuant to this Indenture, the “Guarantor(s)”)
and BNY MIDWEST TRUST COMPANY, an Illinois trust company, as Trustee (the “Trustee”).


 


W I T N E S S E T H:


 


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


 


WHEREAS, the Guarantor has duly authorized the guarantee of the
Securities up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture and has duly
authorized the execution and delivery of this Indenture; and


 


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


 


NOW, THEREFORE:


 


In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company, the Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities as follows:


 


ARTICLE I



DEFINITIONS


 


SECTION 1.1                          Certain Terms Defined.
The following terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this Indenture and of
any indenture supplemental hereto shall have the respective meanings specified
in this Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or the definitions of which in the Securities Act
of 1933 are referred to in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and
in said Securities Act as in force at the date of this Indenture. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term “generally accepted accounting principles” means such
accounting principles as are generally accepted at the time of any computation.
The words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a


 


1

















 


whole, as
supplemented and amended from time to time, and not to any particular Article,
Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as
well as the singular.


 


“Additional Amounts” has the meaning
specified in Section 3.5.


 


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


 


“Business Day” means, except as may otherwise
be provided in the form of Securities of any particular Series, with respect to
any Place of Payment, any day, other than a Saturday or Sunday, that is not a
legal holiday, or a day on which banking institutions are authorized or
required by law or regulation to close in Chicago, Illinois or New York, New
York or that Place of Payment, or, with respect to Securities denominated in a
Foreign Currency, the capital city of the country of such Foreign Currency, or,
with respect to Securities denominated in the Euro, Brussels, Belgium.


 


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


 


“Company” means (except as otherwise provided in
Article Six) Navistar International Corporation, a Delaware corporation,
and, subject to Article Nine, its successors and assigns.


 


“Company Notice” means the confirmation of
the Company signed by an officer, transmitted by facsimile and confirmed in
writing to the Trustee of the terms of the issuance of any Securities issuable
in Tranches.


 


“Component Currency” has the meaning
specified in Section 2.11.


 


“Conversion Date” has the meaning specified
in Section 2.11.


 


“Conversion Event” means the cessation of
use of (i) a Foreign Currency both by the government of the country that issued
such Currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
Euro both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities, or
(iii) any currency unit (or composite currency) other than the Euro for the
purposes for which it was established.


 


“Corporate Trust Office” means the
office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which office is, at
the date as of which this Indenture is dated, located at 2 North LaSalle
Street, Suite 1020, Chicago, Illinois 
60602, Attention:  Corporate
Trust Department.


 


2

















 


“Coupon” means any interest coupon appertaining to
any Security.


 


“Coupon Security” means any Security
authenticated and delivered with one or more Coupons appertaining thereto.


 


“Currency” means any currency or currencies,
composite currency, currency unit or currency units including, without
limitation, the Euro, issued by the government of one or more countries or by
any reorganized confederation or association of such governments.


 


“Currency Determination Agent”
means the New York Clearing House Bank, if any, from time to time selected by
the Company for purposes of Section 2.11.


 


“Dollar” means the coin or currency of the United
States of America which as of the time of payment is legal tender for the
payment of public and private debts.


 


“Dollar Equivalent of the
Currency Unit” has the meaning specified in Section 2.11.


 


“Dollar Equivalent of the
Foreign Currency” has the meaning specified in Section 2.11.


 


“Euro” means the single currency of the participating
member states of the European Union as defined under EC Regulation 1103/97
adopted under Article 235 of the Treaty on European Union and under EC
Regulation 974/98 adopted under Article 1091(4) of the Treaty on European
Union or any successor European legislation from time to time.


 


“European Communities” means the
European Union, the European Coal and Steel Community and the European Atomic
Energy Community.


 


“European Monetary System” means the
European Monetary System established by Resolution of December 5, 1978 of
the Council of the European Communities.


 


“Event of Default” means any event or
condition specified as such in Section 5.1.


 


“Exchange Rate Officer’s
Certificate” means a certificate setting forth (i) the applicable Market
Exchange Rate or the applicable quotation and (ii) the Dollar or Foreign
Currency amounts payable on the basis of such Market Exchange Rate or quotation
in respect of the principal of and interest on the applicable series of
Registered Securities, signed by the treasurer or any assistant treasurer of
the Company, and delivered to the Trustee.


 


“Foreign Currency” means any Currency,
including, without limitation, the Euro, issued by the government of one or
more countries other than the United States of America or by any recognized
confederation or association of such governments.


 


“Government Obligations” means
securities which are (i) direct obligations of the government which issued the
currency in which the Securities of a particular Series are denominated or (ii)
obligations of a Person controlled or supervised by, or acting as an agency or
instrumentality of, the government which issued the currency in which the
Securities of such Series are denominated, the payment of which obligations is
unconditionally guaranteed by such government, and which, in either case, are
full faith


 


3

















 


and credit obligations of such government, are denominated in the
currency in which the Securities of such Series are denominated and which are
not callable or redeemable at the option of the issuer thereof.


 


“Guaranty” means the guarantee of the Securities
of any Series by International Truck and Engine Corporation, a Delaware
corporation, or any other Person who becomes a Guarantor pursuant to this
Indenture.


 


“Holder”, “Holder of Securities”, “Securityholder”
or other similar terms mean the bearer of an Unregistered Security or a
Registered Holder of a Registered Security and, when used with respect to any
Coupon, means the bearer thereof.


 


“Indenture” means this instrument as originally
executed and delivered or, if amended or supplemented as herein provided, as so
amended or supplemented or both, and shall include the forms and terms of
particular Series of Securities established as contemplated hereunder.


 


“interest,” when used with respect to non-interest
bearing Securities, means interest payable at maturity and, when used with
respect to a Security which provides for the payment of Additional Amounts
pursuant to Section 3.5 or otherwise, includes such Additional Amounts.


 


“Market Exchange Rate” has the meaning
specified in Section 2.11.


 


“non-United States Person” means a
Person other than a United States Person.


 


“Officer’s Certificate” means a
certificate signed by the chairman of the Board of Directors or the president
or any vice president and by the treasurer or the secretary or any assistant
secretary of the Company and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 11.5.


 


“Opinion of Counsel” means an opinion in
writing signed by legal counsel who may be an employee of or counsel to the
Company. Each such opinion shall include the statements provided for in
Section 11.5, if and to the extent required hereby.


 


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


 


“Original Issue Discount Security”
means any Security which provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 5.1.


 


“Outstanding” when used with reference to
Securities, shall, subject to the provisions of Section 7.4, mean, as of
any particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except


 


4

















 


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


 


(b)                                 Securities, or portions thereof,
for the payment or redemption of which moneys in the necessary amount and in
the specified currency or currency unit shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been
set aside, segregated and held in trust by the Company for the holders of such
Securities (if the Company shall act as its own paying agent), provided that if
such Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and


 


(c)                                  Securities in substitution for
which other Securities shall have been authenticated and delivered, or which
shall have been paid, pursuant to the terms of Section 2.8 (except with
respect to any such Security as to which proof satisfactory to the Trustee and
the Company is presented that such Security is held by a person in whose hands
such Security is a legal, valid and binding obligation of the Company).


 


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


 


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


 


“Place of Payment,” when used with respect
to the Securities of any Series, means the place or places where the principal
of and interest, if any, on the Securities of that Series are payable as
specified pursuant to Section 3.2.


 


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


 


“Principal Property” means any
manufacturing plant or facility which is located within the continental United
States of America and is owned by the Company or any Restricted Subsidiary,
except any such plant or facility which the Board of Directors by resolution
declares is not of material importance to the total business conducted by the
Company and its Restricted Subsidiaries as an entirety and which, when taken
together with all other plants and facilities as to which such a declaration
has been made, are so declared by the Board of Directors to be not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety.


 


“Registered Holder” when used with respect
to a Registered Security means the person in whose name such Security is
registered in the Security register.


 


“Registered Security” means any Security
registered in the Security register.


 


5

















 


“Responsible Officer” when used with
respect to the Trustee shall mean any officer within the corporate trust
department (or any successor group) of the Trustee including any vice
president, assistant vice president, assistant secretary, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Office because of his or her knowledge of and familiarity with
the particular subject.


 


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


 


“Series” or “Series of Securities” means a series of
Securities. Except in Sections 1.1 - “Outstanding,” and 7.4 and Articles Five,
Six and Eleven, the terms “Series” or “Series of Securities” shall also mean a
Tranche in the event that the applicable Series may be issued in separate
Tranches.


 


“Specified Amount” has the meaning
specified in Section 2.11.


 


“Subsidiary” means any corporation which is
consolidated in the Company’s accounts and any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or
controlled by the Company, or by one or more Subsidiaries, or by the Company
and one or more Subsidiaries.


 


“Tranche” means all Securities of the same Series which
have the same issue date, maturity date, interest rate or method of determining
interest, and, in the case of Original Issue Discount Securities, which have
the same issue price.


 


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


 


“Trust Indenture Act of 1939” or
“Trust Indenture Act” (except as otherwise provided in Sections 8.1 and 8.2)
means the Trust Indenture Act of 1939, as amended, as in force at the date as
of which this Indenture was originally executed.


 


“United States of America” means the
fifty states constituting the United States of America as of the date of this
Indenture.


 


“United States Person” means, unless
otherwise specified with respect to any Securities pursuant to
Section 2.2, an individual who is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or an estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
For purposes of this definition, the term United


 


6

















 


States means the United States of America (including the states and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.


 


“Unregistered Security” means any
Security not registered in the Security register as to principal.


 


“Valuation Date” has the meaning specified in
Section 2.11.


 


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


 


ARTICLE II



SECURITIES


 


SECTION 2.1                          Forms Generally.  The Securities of each Series and the
Coupons, if any, shall be substantially in such form (not inconsistent with
this Indenture) as shall be established by or pursuant to a resolution of the
Board of Directors or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture (the provisions of
which shall be appropriate to reflect the terms of each Series of Securities, including
the currency or denomination, which may be Dollars or any Foreign Currency) and
may have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons, if any.


 


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


 


SECTION 2.2                          Amount Unlimited; Issuable In
Series. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.


 


The Securities may be issued in one or more Series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officer’s Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any Series or the
Guaranty of any Securities of any Series,


 


(1)                                  the title of the Securities of the
Series, including CUSIP numbers (which title shall distinguish the Securities
of the Series from all other Securities issued by the Company);


 


(2)                                  any limit upon the aggregate
principal amount of the Securities of the Series that may be authenticated and
delivered under this Indenture (except for Securities


 


7

















 


authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the Series pursuant to Sections 2.5, 2.6, 2.8 or 12.3);


 


(3)                                  if other than 100% of their
principal amount, the percentage of their principal amount at which the
Securities of the Series will be offered;


 


(4)                                  the date or dates on which the
principal of the Securities of the Series is payable;


 


(5)                                  the rate or rates, which may be
fixed or variable, at which the Securities of the Series shall bear interest,
if any, the date or dates from which such interest shall accrue, the interest
payment dates on which such interest shall be payable and, in the case of
Registered Securities, the record dates for the determination of Holders to
whom interest is payable;


 


(6)                                  the place or places where the
principal and interest on Securities of the Series shall be payable (if other
than as provided in Section 3.2);


 


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


 


(8)                                  if other than the principal amount
thereof, the portion of the principal amount of Securities of the Series which
shall be payable upon declaration of acceleration of the maturity pursuant to
Section 5.1 or provable in bankruptcy pursuant to Section 5.2;


 


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


 


(10)                            the issuance as Registered
Securities or Unregistered Securities or both, and the rights of the Holders to
exchange Unregistered Securities for Registered Securities of the Series or to
exchange Registered Securities of the Series for Unregistered Securities of the
Series and the circumstances under which any such exchanges, if permitted, may
be made;


 


(11)                            if other than denominations of
$1,000 and any integral multiple thereof, the denominations, which may be in
Dollars or any Foreign Currency, in which Securities of the Series shall be
issuable;


 


(12)                            the form of the Securities (or
forms thereof if Unregistered and Registered Securities shall be issuable in
such Series), including such legends as required by law or


 


8

















 


as the Company deems
necessary or appropriate, the form of any coupons or temporary global security
which may be issued and the forms of any certificates which may be required
hereunder or which the Company may require in connection with the offering,
sale, delivery or exchange of Unregistered Securities;


 


(13)                            the Currency or Currencies in which
payments of interest or principal and other amounts are payable with respect to
the Securities of the Series are to be denominated, payable, redeemable or
repurchasable, as the case may be;


 


(14)                            whether Securities of the Series
are issuable in Tranches;


 


(15)                            whether, and under what
circumstances, the Securities of any Series shall be convertible into
Securities of any other Series;


 


(16)                            if other than the Trustee, any
trustees, authenticating or paying agents, transfer agents or registrars or any
other agents with respect to the Securities of such Series;


 


(17)                            if the Securities of such Series do
not bear interest, the applicable dates for purposes of Section 4.1
hereof;


 


(18)                            any deletions from, modifications
of or additions to the Events of Default or covenants of the Company with
respect to Securities of the Series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;


 


(19)                            whether, under what circumstances
and the Currency in which, the Company will pay Additional Amounts as
contemplated by Section 3.5 on the Securities of the Series to any Holder
who is a non-United States Person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental charge and, if
so, whether the Company will have the option to redeem such Securities rather
than pay such Additional Amounts (and the terms of any such option);


 


(20)                            whether and under what
circumstances the Guarantor or any other Subsidiary of the Company shall
guarantee the Securities and any modifications or additions to the terms and
conditions of the Guaranty set forth in Article Thirteen; and


 


(21)                            any other terms or conditions upon
which the Securities of the Series are to be issued.


 


All Securities of any one Series shall be substantially identical
except as to denomination, except as provided in the immediately succeeding
paragraph, and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto. All Securities of any one Series need not be issued at the same time,
and unless otherwise provided, a Series may be reopened, without the consent of
the Holders, for


 


9

















 


issuances of additional Securities
of such Series or to establish additional terms of such Series of Securities
(which additional terms shall only be applicable to unissued or additional
Securities of such Series).


 


Each Series may be issued in one or more Tranches. Except as provided
in the foregoing paragraph, all Securities of a Tranche shall have the same
issue date, maturity date, interest rate or method of determining interest,
and, in the case of Original Issue Discount Securities, the same issue price.


 


SECTION 2.3                          Authentication and Delivery of
Securities.  At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series having attached thereto
appropriate Coupons, if any, executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company, signed by both (a) the
chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or any vice president and (b) by its treasurer or
any assistant treasurer, secretary or any assistant secretary without any
further action by the Company. In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive and (subject to
Section 6.1) shall be fully protected in relying upon:


 


(a)                                  a certified copy of any resolution
or resolutions of the Board of Directors authorizing the action taken pursuant
to the resolution or resolutions delivered under clause (2) below;


 


(b)                                 a copy of any resolution or
resolutions of the Board of Directors relating to such Series, in each case
certified by the secretary or an assistant secretary of the Company;


 


(c)                                  an executed supplemental indenture,
if any;


 


(d)                                 an Officer’s Certificate setting
forth the form and terms of the Securities of such Series as required pursuant
to Sections 2.1 and prepared in accordance with Section 11.5; and


 


(e)                                  an Opinion of Counsel, prepared in
accordance with Section 11.5, which shall state:


 


(i)                                     that the form or forms and terms of
such Securities and Coupons, if any have been established by or pursuant to a
resolution of the Board of Directors or by a supplemental indenture as
permitted by Sections 2.1 in conformity with the provisions of this Indenture;


 


(ii)                                  that such Securities and Coupons,
if any have been duly authorized, and, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding
obligations of the Company enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization or other laws relating to
or affecting the enforcement of creditors’ rights and by general


 


10

















 


equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law;


 


(iii)                               that all laws and requirements in
respect of the execution and delivery by the Company of the Securities and
Coupons, if any, and the related supplemental indenture, if any, have been
complied with;


 


(iv)                              the registration statement, if any,
relating to the Securities of such series and any amendments thereto has become
effective under the Securities Act of 1933 and to the best knowledge of such
counsel, no stop order suspending the effectiveness of such registration
statement, as amended, has been issued and no proceedings for that purpose have
been instituted or threatened;


 


(v)                                 no consent, approval, authorization
or order of any court or governmental agency or body in the United States is
required for the issuance of the Securities of such Series, except such as have
been obtained and such as may be required under the blue sky laws of any
jurisdiction in the United States in connection with the purchase and
distribution of the Securities of such Series;


 


(vi)                              neither the issue nor sale of the
Securities of such Series will contravene the charter or by-laws of the Company
or will conflict with, result in a breach of or constitute a default under the
terms of any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its Subsidiaries is a party or is bound, or
any order or regulation known to such counsel to be applicable to the Company
or any of its Subsidiaries of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or any of its
Subsidiaries; and


 


(vii)                           the authentication and delivery of
the Securities of such series by the Trustee in accordance with the directions
of the Company so to do, and the Company’s execution and delivery of the
Securities of such series, will not violate the terms of this Indenture;


 


provided, however, that in the case of any Series issuable in
Tranches, if the Trustee has previously received the documents referred to in
Section 2.3(1)-(5) with respect to such Series, the Trustee shall
authenticate and deliver Securities of such Series executed and delivered by
the Company for original issuance upon receipt by the Trustee of the applicable
Company Notice.


 


The Trustee shall have the right to decline to authenticate and
deliver any Securities and Coupons, if any, under this Section if the
Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Company or if the issue of such Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under this
Indenture in a manner not reasonably acceptable to the Trustee.


 


Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.9, together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an


 


11

















 


Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


 


SECTION 2.4                          Execution of Securities.  The Securities shall be signed on behalf of
the Company by both (a) its chairman or its president or any vice president and
(b) its treasurer or any assistant treasurer or its secretary or any assistant
secretary, which may, but need not, be attested. Such signatures may be the
manual or facsimile signatures of the present or any future such officers. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee. Any
Coupons attached to any Unregistered Security shall be executed on behalf of
the Company by the manual or facsimile signature of any such officer of the
Company.


 


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


 


SECTION 2.5                          Certificate of Authentication.  Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
executed by the Trustee by the manual signature of one of its authorized
signatories, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee upon any Security
executed by the Company shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.


 


The Trustee shall not authenticate or deliver any Unregistered
Security until any matured Coupons appertaining thereto have been detached and
canceled, except as otherwise provided or permitted by this Indenture.


 


SECTION 2.6                          Denomination and Date of
Securities; Payments of Interest. The Securities shall be issuable
in denominations as shall be specified as contemplated by Section 2.2. In
the absence of any such specification with respect to the Securities of any
Series, the Securities of such Series shall be issuable in denominations of
$1,000 and any multiple thereof, which may be in Dollars or any Foreign
Currency, and interest shall be computed on the basis of a 360-day year of
twelve 30-day months. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company executing the same may determine with the approval of the Trustee
as evidenced by the execution and authentication thereof.


 


12

















 


Each Security shall be dated the date of its authentication, shall
bear interest from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.2.


 


Interest on any Security which is payable, and is punctually paid
or duly provided for, on any interest payment date shall be paid, in the case
of Registered Securities, to the person in whose name that Security (or one or
more predecessor Securities) is registered at the close of business on the
regular record date for the payment of such interest and, in the case of
Unregistered Securities, upon surrender of the Coupon appertaining thereto in
respect of the interest due on such interest payment date.


 


The term “record date” as used with respect to any interest
payment date (except for a date for payment of defaulted interest) shall mean
the date specified as such in the terms of the Securities of any particular
Series, or, if no such date is so specified, if such interest payment date is
the first day of a calendar month, the close of business on the fifteenth day
of the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the close of business on the first day of such
calendar month, whether or not such record date is a Business Day.


 


Any interest on any Security of any Series which is payable, but
is not punctually paid or duly provided for, on any interest payment date
(called “defaulted interest” for the purpose of this Section) shall forthwith
cease to be payable to the Registered Holder on the relevant record date by
virtue of his having been such Holder; and such defaulted interest may be paid
by the Company, at its election in each case, as provided in clause (1) or
clause (2) below:


 


(1)                                  The Company may elect to make
payment of any defaulted interest to the persons in whose names any such
Registered Securities (or their respective predecessor Securities) are
registered at the close of business on a special record date for the payment of
such defaulted interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Security of such Series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such defaulted interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to such
defaulted interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such defaulted interest in respect of
Registered Securities of such Series which shall be not more than 15 nor less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such special record date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such defaulted interest and the special record date thereof
to be mailed, first class postage prepaid, to each Registered Holder at his
address as it appears in the Security register, not less than 10 days prior to
such special record date. Notice of the proposed payment of such defaulted
interest and the special record date therefor having been mailed as aforesaid,
such defaulted interest in respect of Registered Securities of such Series
shall be paid to the person in whose names


 


13

















 


such Securities (or their
respective predecessor Securities) are registered on such special record date
and such defaulted interest shall no longer be payable pursuant to the
following clause (2).


 


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


 


Any defaulted interest payable in respect of any Security of any
Series which is not a Registered Security shall be payable pursuant to such
procedures as may be satisfactory to the Trustee in such manner that there is
no discrimination as between the Holders of Registered Securities and other
Securities of the same Series, and notice of the payment date therefor shall be
given by the Trustee, in the name and at the expense of the Company, by
publication at least once in a newspaper of general circulation in New York,
New York.


 


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


 


SECTION 2.7                          Registration, Transfer and Exchange.
The Company will keep at the office or agency of the Trustee to be maintained
for the purpose as provided in Section 3.2 a register or registers in
which, subject to such reasonable regulations as it may prescribe, it will
register, and will register the transfer of, Registered Securities as in this
Article Two provided. Such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection by the Trustee.


 


Upon due presentation for registration of transfer of any
Registered Security of any Series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Company shall execute and
the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
Series in authorized denominations for a like aggregate principal amount.


 


At the option of the Holder thereof, Unregistered Securities of a
Series, which by their terms are registerable as to principal and interest,
may, to the extent and under the circumstances specified pursuant to
Section 2.2, be exchanged for Registered Securities of such Series, as may
be issued by the terms thereof. At the option of the Holder thereof, Registered
Securities of a Series, which by their terms provide for the issuance of
Unregistered Securities, may, to the extent and under the circumstances
specified pursuant to Section 2.2, be exchanged for Unregistered
Securities of such Series. Securities so issued in exchange for other
Securities shall be of any authorized denomination and of like principal amount
and maturity date, interest rate or method of determining interest, and shall
be issued upon surrender of the Securities for which they are to be exchanged
and, in the case of Coupon Securities, together with all unmatured


 


14

















 


Coupons and matured Coupons in
default appertaining thereto, at the office of the Company provided for in
Section 3.2 and upon payment, if the Company shall require, of charges
provided therein. Unregistered Securities of any Series issued in exchange for
Registered Securities of such Series between the regular record date for such Registered
Security and the next interest payment date will be issued without the Coupon
relating to such interest payment date, and Unregistered Securities surrendered
in exchange for Registered Securities between such dates shall be surrendered
without the Coupon relating to such interest payment date. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Notwithstanding the foregoing, an
Unregistered Security will not be delivered in exchange for a Registered
Security or Securities unless the Trustee receives a certificate signed by the
person entitled to delivery of such Security or other items or documents
fulfilling such conditions as shall be required by regulations of the United
States Department of the Treasury, or shall be notified by the Company that
such a certificate shall not be required by such regulations; provided,
however, that no such Unregistered Security shall be delivered by the Trustee
if the Trustee or such agent shall have, or shall have been notified in writing
by the Company that the Company has, actual knowledge that such certificate is
false.


 


Upon presentation for registration of any Unregistered Securities
of any Series which by its terms is registerable as to principal, at the office
or agency of the Company to be maintained as provided in Section 3.2, such
Security shall be registered as to principal in the name of the Holder thereof
and such registration shall be noted on such Security. Any Security so
registered shall be transferable on the registry books of the Company upon
presentation of such Security at such office or agency for similar notation
thereon, but such Security may be discharged from registration by being in a
like manner transferred to bearer, whereupon transferability by delivery shall
be restored. Except as otherwise provided pursuant to Section 2.2 hereof,
Unregistered Securities shall continue to be subject to successive
registrations and discharges from registration at the option of the Holders
thereof.


 


Unregistered Securities shall be transferable by delivery, except
while registered as to principal. Registration of any Coupon Security shall not
effect the transferability by delivery of the Coupons appertaining thereto
which shall continue to be payable to bearer and transferable by delivery.


 


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


 


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


 


No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Securities, other than exchanges
pursuant to Sections 2.8, 8.5 or 12.3 not involving any transfer.


 


15

















 


The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening
of business 15 days before the day of mailing of a notice of redemption of
Securities for redemption under Article Twelve or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except, in the case of any Security to be redeemed in part, the portion
thereof not redeemed.


 


SECTION 2.8                          Mutilated, Defaced, Destroyed, Lost
and Stolen Securities. In case any temporary or definitive Security
or Coupon shall become mutilated, defaced or be destroyed, lost or stolen, the
Company in its discretion may execute, and upon the written request of any
officer of the Company, the Trustee shall authenticate and deliver, a new
Security of the same Series or Coupon, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security
or Coupon, or in lieu of and substitution for the Security or Coupon so
destroyed, lost or stolen. In every case the applicant for a substitute
Security or Coupon shall furnish to the Company and to the Trustee and to any
agent of the Company or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof.


 


Upon the issuance of any substitute Security or Coupon, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon);
provided, however, that interest represented by Coupons shall be payable only
upon presentation and surrender of such Coupons at an office or agency of the
Company located outside of the United States, unless otherwise provided
pursuant to Section 2.2, if the applicant for such payment shall furnish
to the Company and to the Trustee and any agent of the Company or the Trustee
such security or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and the Trustee and any agent of the Company or the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.


 


Every substitute Security of any Series or Coupon issued pursuant
to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company or Guarantor, if any, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time enforceable
by anyone and shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of such Series or Coupons
duly authenticated and delivered hereunder. All Securities or Coupons shall be
held and owned upon the express condition that, to the extent permitted by the
law, the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen Securities or Coupons
and shall preclude any and all other rights or remedies notwithstanding any law
or statute existing or hereafter enacted to the contrary


 


16

















 


with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.


 


SECTION 2.9                          Cancellation of Securities.
All Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund and all Coupons surrendered for payment or exchange, shall, if
surrendered to the Company or any agent of the Company or the Trustee, be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities or Coupons shall be issued in lieu
thereof, except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose cancelled Securities in accordance with
its customary procedures. If the Company shall acquire any of the Securities
and Coupons, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities and Coupons unless and until
the same are delivered to the Trustee for cancellation.


 


SECTION 2.10                    Temporary Securities.
Pending the preparation of definitive Securities for any Series, the Company
may execute and the Trustee shall authenticate and deliver temporary Securities
for such Series (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Trustee). Temporary Securities of any
Series may be issued as Registered Securities or Unregistered Securities with
or without Coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such Series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company with the concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the Company shall execute and
shall furnish definitive Securities of such Series and thereupon temporary
Securities of such Series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Company for that
purpose pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such Series a like
aggregate principal amount of definitive Securities of the same Series of
authorized denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the temporary
Securities of any Series shall be entitled to the same benefits under this
Indenture as definitive Securities of such Series.


 


SECTION 2.11                    Currency and Manner of Payments In
Respect of Securities.


 


(a) With respect
to Registered Securities of any Series with respect to which the Holders of
such Securities have not made the election provided for in paragraph (b) below,
the following payment provisions shall apply:


 


(i)                                     Except as provided in subparagraph
(a)(2) or in paragraph (e) below, payment of the principal of any Registered
Security will be made at the Place of Payment by delivery of a check in the
Currency in which the Security is denominated on the payment date against
surrender of such Registered Security, and any interest on any Registered
Security will be paid at the Place of Payment by mailing a check in the


 


17

















 


Currency in which the Securities were issued to the Person
entitled thereto at the address of such Person appearing on the Security
register.


 


(ii)                                  Payment of the principal of and
interest on such Security may also, subject to applicable laws and regulations,
be made at such other place or places as may be designated by the Company by
any appropriate method.


 


(b) With respect
to Registered Securities of any Series, the following payment provisions shall
apply, except as otherwise provided in paragraphs (e) and (f) below:


 


(i)                                     The Board of Directors may provide
with respect to any Series of such Securities that Holders shall have the
option to receive payments of principal of and interest on such Security in any
of the Currencies which may be designated for such election in such Security by
delivering to the Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business on the record
date immediately preceding the applicable payment date. Such election will
remain in effect for such Holder until changed by the Holder by written notice
to the Trustee (but any such change must be made not later than the close of
business on the record date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change
may be made with respect to payments to be made on any Security with respect to
which notice of redemption has been given by the Company pursuant to
Article Twelve). Any Holder of any such Security who shall not have
delivered any such election to the Trustee not later than the close of business
on the applicable record date will be paid the amount due on the applicable
payment date in the relevant Currency as provided in paragraph (a) of this
Section 2.11. Payment of principal shall be made on the payment date
against surrender of such Securities. Payment of principal and interest shall
be made at the Place of Payment by mailing a check in the applicable currency
to the Person entitled thereto at the address of such Person appearing on the
Security register.


 


(ii)                                  Payment of the principal of and
interest on such Security may also, subject to applicable laws and regulations,
be made at such other place or places as may be designated by the Company by
any appropriate method.


 


(c) Payment of the
principal of any Unregistered Security and of interest on any Coupon Security
will be made at such place or places outside the United States as may be
designated by the Company by any appropriate method only in the Currency in
which the Security is payable (except as provided in paragraph (e) below) on the
payment date against surrender of the Unregistered Security, in the case of
payment of principal, or the relevant Coupon, in the case of payment of
interest. Except as provided in paragraph (e) below, payment with respect to
Unregistered Securities and Coupons will be made by check, subject to any
limitations on the methods of effecting such payment as shall be specified in
the terms of the Security established as provided in Section 2.2 and as
shall be required under applicable laws and regulations. Payment of the
principal of and interest on Unregistered Securities may also, subject to
applicable laws and regulations, be made at such other place or places as may
be designated by the Company by any appropriate method.


 


18

















 


(d) Not later than
the fourth Business Day after the record date for each payment date, the
Trustee will deliver to the Company a written notice specifying, in the
Currency in which each Series of the Securities are denominated, the respective
aggregate amounts of principal of and interest on the Securities to be made on
such payment date, specifying the amounts so payable in respect of the
Registered and the Unregistered Securities and in respect of the Registered
Securities as to which the Holders shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the Board of Directors has
provided for the election referred to in paragraph (b) above and if at least
one Holder has made such election, then not later than the second Business Day
preceding such record date the Company will deliver to the Trustee an Exchange
Rate Officer’s Certificate in respect of the Dollar or Foreign Currency
payments to be made on such payment date. The Dollar or Foreign Currency amount
receivable by Holders of Registered Securities who have elected payment in
another Currency as provided in paragraph (b) above shall be determined by the
Company on the basis of the applicable Market Exchange Rate in effect on the
second Business Day (the “Valuation Date”) prior to such payment date
and set forth in the applicable Exchange Rate Officer’s Certificate.


 


(e) If a
Conversion Event occurs with respect to a Foreign Currency in which any of the
Securities are denominated or payable, then with respect to each date for the
payment of principal of, premium, if any, and interest on the applicable
Foreign Currency denominated Securities occurring after the last date on which
the Foreign Currency was so used (the “Conversion Date”), the Dollar
shall be the currency of payment for use on each such payment date. The Dollar
amount to be paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect to such payment
date shall be, in the case of a Foreign Currency other than a currency unit,
the Dollar Equivalent of the Foreign Currency or, in the case of a currency
unit, the Dollar Equivalent of the Currency Unit, in each case as determined by
the Currency Determination Agent in the manner provided in paragraphs (g) or
(h) below.


 


(f) If the Holder
of a Registered Security elects payment in a specified Currency as provided for
by paragraph (b) and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election; and if a Conversion Event
occurs with respect to the Currency in which payment would have been made in
the absence of such election, such Holder shall receive payment in Dollars.


 


(g) The “Dollar
Equivalent of the Foreign Currency” shall be determined by the Currency
Determination Agent as of each Valuation Date and shall be obtained by
converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.


 


(h) The “Dollar
Equivalent of the Currency Unit” shall be determined by the Currency
Determination Agent as of each Valuation Date and shall be the sum obtained by
adding together the results obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate on the Valuation
Date for such Component Currency.


 


19

















 


(i) For purposes
of this Section 2.11 the following terms shall have the following meanings:


 


A “Component Currency” shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including but not limited to the Euro.


 


A “Specified Amount” of a Component Currency shall mean the number
of units or fractions thereof which such Component Currency represented in the
relevant currency unit, including but not limited to the Euro, on the
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such single
currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement, shall be equal to the
Specified Amount of such former Component Currency and such amounts shall thereafter
be Specified Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency unit,
including, but not limited to, the Euro, a Conversion Event (other than any
event referred to above in this definition of “Specified Amount”) occurs with
respect to any Component Currency of such currency unit and is continuing on
the applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.


 


“Market Exchange Rate” shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted in New York City on
the Valuation Date as certified for customs purposes by the Federal Reserve
Bank of New York. If such rates are not available for any reason with respect
to one or more Currencies for which an exchange rate is required, the Currency
Determination Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City or in the country of issue of the currency in question, or such other
quotations as the Currency Determination Agent shall deem appropriate. Unless
otherwise specified by the Currency Determination Agent, if there is more than
one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities.


 


All decisions and determinations of the Currency Determination
Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and changes in
Specified Amounts as specified above shall be in its sole


 


20

















 


discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the relevant series of Securities and
all Holders of such Securities.


 


In the event that a Conversion Event has occurred with respect to
a Foreign Currency, the Company, after learning thereof, will immediately give
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 11.4 to the affected Holders)
specifying the Conversion Date. In the event that a Conversion Event has
occurred with respect to the Euro or any other currency unit in which
Securities are denominated or payable, the Company, after learning thereof,
will immediately give notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 11.4 to
the affected Holders) specifying the Conversion Date and the Specified Amount
of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly give
notice to the Trustee.


 


The Trustee shall be fully
justified and protected in relying on and acting upon the information so
received by it from the Company and the Currency Determination Agent and shall
not otherwise have any duty or obligation to determine such information
independently.


 


SECTION 2.12                    Compliance With Certain Laws and
Regulations. If any Unregistered Securities or Coupon Securities are
to be issued in any Series of Securities, the Company will use reasonable
efforts to provide for arrangements and procedures designed pursuant to then
applicable laws and regulations, if any, to ensure that Unregistered Securities
or Coupon Securities are sold or resold, exchanged, transferred and paid only
in compliance with such laws and regulations and without adverse consequences
to the Company.


 


SECTION 2.13                    CUSIP Numbers. The
Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then
generally in use), and, if so, the Trustee shall indicate the “CUSIP” or “ISIN”
numbers of the Securities in notices of redemption as a convenience to Holders;
PROVIDED that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the “CUSIP” or
“ISIN” numbers.


 


SECTION 2.14                    Securities In Global Form.
If Securities of or within a Series are issuable in whole or in part in global
form, any such Security may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby, shall be made in such manner and by such Person
or Persons as shall be specified therein or in the Company order to be
delivered to the Trustee pursuant to Section 2.3 or 2.8. Subject to the
provisions of Section 2.3 and, if applicable, Section 2.10, the
Trustee shall deliver and redeliver any Security in permanent global


 


21

















 


form in the manner
and upon instructions given by the Person or Persons specified therein or in
the applicable Company order. Any instructions by the Company with respect to
endorsement or deliver or redelivery of a Security in global form shall be in
writing but need not comply with Section 11.5 and need not be accompanied
by an Opinion of Counsel.


 


The provisions of the last paragraph of Section 2.3 shall
apply to any Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply with
Section 11.5 and need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last paragraph
of Section 2.3.


 


Notwithstanding the provisions of Section 3.1, unless
otherwise specified as contemplated by Section 2.3, payment of principal
of and interest on any Security in permanent global form shall be made to the
Person or Persons specified in such Security.


 


ARTICLE III



COVENANTS


 


SECTION 3.1                          Payment of Principal and Interest.
The Company and, if applicable, any Guarantor shall punctually pay or cause to
be paid (in the currency or currency unit in which the Securities of such
Series and Coupons, if any, are payable, except as otherwise provided pursuant
to Section 2.2 for the Securities of such Series and except as provided in
Section 2.11(b), (e) and (f) hereof) the principal of, and interest on,
each of the Securities of such Series in accordance with the terms of the
Securities of such Series, any Coupons appertaining thereto and this Indenture.


 


The interest on Unregistered Securities shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature at the office of
a Paying Agent outside the United States. The interest on any temporary
Unregistered Security shall be paid, as to any installment of interest
evidenced by a Coupon attached thereto, if any, only upon presentation and
surrender of such Coupon, and, as to the other installments of interest, if
any, only upon presentation of such Securities for notation thereon of the
payment of such interest.


 


SECTION 3.2                          Offices For Payment, Etc.
So long as any of the Securities remain outstanding, the Company will maintain
the following for each Series: an office or agency (a) where the Securities may
be presented for payment, (b) where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided and (c)
where notices and demands to or upon the Company in respect of the Securities
or of this Indenture may be served. The Company will give to the Trustee
written notice of the location of any such office or agency and of any change
of location thereof. In case the Company shall fail to so designate or maintain
any such office or agency or shall fail to give such notice of the location or
of any change in the location thereof, presentations and demands may be made
and notices may be served at the corporate trust office. Unless otherwise
specified pursuant to Section 2.2, the Trustee is appointed Paying Agent
and Registrar.


 


22

















 


So long as any Coupon Securities or Unregistered Securities of any
Series remain outstanding, the Company will (except as specified pursuant to
Section 2.2) maintain one or more offices or agencies outside the United
States in such city or cities as may be specified elsewhere in this Indenture
or as contemplated by Section 2.2, and shall maintain such office or
offices for a period of two years (or any period thereafter for which it is
necessary in order to conform to United States tax laws or regulations) after
the principal on such Coupon Securities or Unregistered Securities has become
due and payable, with respect to such Series where Coupons appertaining to
Securities of such Series or Unregistered Securities of such Series may be
surrendered or presented for payment, or surrendered for exchange pursuant to
Section 2.7 and where notices and demands to or upon the Company in
respect of Coupons appertaining to Securities of such Series or the
Unregistered Securities of such Series or of this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location and any
change in the location, of any such office or agency. If at any time the
Company shall fail to maintain such required office or agency or shall fail to
furnish the Trustee with the address thereof, presentations, surrenders,
notices and demands in respect of Unregistered Securities may be made or served
at the Corporate Trust Office of the Trustee and the corporate trust office of
any authenticating agent appointed hereunder, and presentations, surrenders,
notices and demands in respect of Coupons appertaining to Securities of any
Series and Unregistered Securities may be made or served at the corporate trust
office of the Trustee in the other city or cities referred to above; and the
Company hereby appoints the Trustee and any authenticating agent appointed
hereunder its agents to receive all such presentations, surrenders, notices and
demands.


 


SECTION 3.3                          Appointment To Fill A Vacancy In
Office of Trustee. The Company, whenever necessary to avoid or fill
a vacancy in the office of Trustee, will appoint, in the manner provided in
Section 6.10, a Trustee, so that there shall at all times be a Trustee
with respect to each Series of Securities hereunder.


 


SECTION 3.4                          Paying Agents. Whenever
the Company shall appoint a Paying Agent other than the Trustee with respect to
the Securities of any Series, it will cause such Paying Agent to execute and
deliver to the Trustee an instrument in which such Agent shall agree with the
Trustee, subject to the provisions of this Section,


 


(a) that it will
hold all sums received by it as such Agent for the payment of the principal of
or interest on the Securities of such Series or Coupons (whether such sums have
been paid to it by the Company or by any other obligor on the Securities of
such Series or Coupons) in trust for the benefit of the Holders of the
Securities of such Series or Coupons or of the Trustee, and upon the occurrence
of an Event of Default and upon the written request of the Trustee, pay over
all such sums received by it to the Trustee,


 


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


 


(c) that it will
give the Trustee notice of any change of address of any Holder of which it is
aware.


 


23

















 


The Company will, on or prior to each due date of the principal of
or interest on the Securities of such Series or Coupons, deposit with the
Paying Agent a sum sufficient to pay such principal or interest so becoming
due, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of any failure to take such action.


 


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


 


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


 


Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to
the provisions of Sections 10.3 and 10.4.


 


SECTION 3.5                          Additional Amounts.  If Securities of a Series provide for the
payment of additional amounts to any Holder who is a non-United States Person
in respect of any tax, assessment or governmental charge (“Additional
Amounts”), the Company will pay to the Holder of any Security of such
Series or any Coupon appertaining thereto such Additional Amounts as may be so
provided by Section 2.2. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or interest on, or in respect of,
any Security of a Series or payment of any related Coupon or the net proceeds
received on the sale or exchange of a Security of a Series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided for
by the terms of such Series established pursuant to Section 2.2 to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.


 


Except as otherwise specified as contemplated by Section 2.2,
if the Securities of a Series provide for the payment of Additional Amounts, at
least 10 days prior to each date of payment of principal or interest on which
any Additional Amount shall be payable, the Company will furnish the Trustee
and the Company’s principal Paying Agent or Paying Agents, if other than the
Trustee, with a compliance certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of or interest on the
Securities of that Series shall be made to Holders of Securities of that Series
or any related Coupons who are non-United States Persons without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that Series. If any such withholding shall be required,
then such compliance certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities of that
Series or related Coupons and the


 


24

















 


Company will pay to the Trustee or
such Paying Agent the Additional Amounts required by the terms of such
Securities. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in reliance on
any Officer’s Certificate furnished pursuant to this Section or in the
event the Trustee shall not withhold or deduct any sums as a result of the
non-receipt of a compliance certificate pursuant to this Section.


 


SECTION 3.6                          Calculation of Original Issue
Discount.  The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on Outstanding Securities as of the end of such
year and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.


 


ARTICLE IV



SECURITYHOLDERS’ LISTS AND REPORTS BY THE

ISSUER AND THE TRUSTEE


 


SECTION 4.1                          Company to Furnish Trustee
Information As to Names and Addresses of Securityholders.  The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee for the Securities of each
Series a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Registered Securities of each Series:


 


(a)                                  semiannually and not more than 15
days after each record date for the payment of interest on such Securities, as
hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.2 for non-interest bearing securities in each year,
and


 


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


 


provided that if and so long as the Trustee
shall be the Security registrar for such Series, such list shall not be
required to be furnished but in any event the Company shall be required to
furnish such information concerning the Holders of Coupon Securities and
Unregistered Securities which is known to it; provided, further, that the
Company shall have no obligation to investigate any matter relating to any
Holder of an Unregistered Security or any Holder of a Coupon.


 


SECTION 4.2                          Preservation and Disclosure of
Securityholders’ Lists.


 


(a)                                  The Trustee for the Securities of
each Series shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of each Series of
Securities contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as Security
registrar for such Series, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.


 


25

















 


(b)                                 In case three or more Holders of
Registered Securities of any Series (hereinafter referred to as “applicants”)
apply in writing to the Trustee and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders of Securities of a
particular Series (in which case the applicants must all hold Securities of
such Series) or with Holders of all Securities with respect to their rights
under this Indenture or under such Securities and such application is
accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either


 


(i)                                     afford to such applicants access to
the information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2, or


 


(ii)                                  inform such applicants as to the
approximate number of Holders of Securities of such Series or all Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, as to the approximate cost of mailing to
such Securityholders the form of proxy or other communication, if any,
specified in such application.


 


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


 


(c)                                  Each and every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of the Company
or the Trustee shall be held accountable by reason of the


 


26

















 


disclosure of any such information
as to the names and addresses of the Holders of Securities in accordance with
the provisions of subsection (b) of this Section, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
such subsection (b).


 


SECTION 4.3                          Reports By the Company.  The Company covenants:


 


(a)                                  to file with the Trustee for the
Securities of each Series, within 15 days after the Company is required to file
the same 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 Commissioner may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, or if the Company is not required to file information,
documents, or reports pursuant to either of such Sections, then to file with
the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents, and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, or in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;


 


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


 


(c)                                  to transmit by mail to the Holders
of Registered Securities in the manner and to the extent required by Sections
4.4(c) and 11.4, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents, and reports required to be filed by
the Company pursuant to subsection (a) and (b) of this Section as may
be required to be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission; and


 


(d)                                 to furnish to the Trustee, for each
Series of Securities, not less often than annually, a brief certificate signed
by two of the following officers of the Company - the principal executive
officer, principal financial officer or principal accounting officer - stating
that in the course of the performance of their duties as officers of the
Company, such officers would normally have knowledge of any covenant, agreement
or condition contained in this Indenture and whether or not they have knowledge
of any default with respect to such covenants, agreements or conditions and if
so, specifying each such default and the nature thereof.  For purposes of this paragraph, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.


 


27

















 


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


 


SECTION 4.4                          Reports By the Trustee.


 


(a)                                  The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by Section 313(a)
of the Trust Indenture Act, the Trustee shall, within sixty days after each May
15 following the date of this Indenture deliver to Holders a brief report,
dated as of such May 15, which complies with the provisions of such
Section 313(a).


 


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


 


ARTICLE V



REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT


 


SECTION 5.1                          Event of Default Defined;
Acceleration of Maturity; Waiver of Default.  In case one or
more of the following Events of Default (unless it is either inapplicable to a
particular Series or it is specifically deleted from or modified in the
instrument establishing such Series and the form of Security for such Series)
shall have occurred and be continuing with respect to any Series of Securities,
that is to say:


 


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


 


(b)                                 default in the payment of the
principal of the Securities of such Series as and when the same shall become due
and payable either at maturity, upon redemption (for any sinking fund payment
or otherwise), by declaration or otherwise; or


 


(c)                                  failure on the part of the Company
duly to observe or perform any other of the covenants or agreements on the part
of the Company in the Securities of such Series, or in this Indenture contained
and relating to such Series, for a period of 90 days after the date on which
written notice specifying such failure and requiring the Company to remedy the
same and stating that such notice is a “Notice of Default” hereunder shall have
been given by registered or certified mail to the Company by the Trustee for
the Securities of such Series, or to the Company and the Trustee by the Holders
of at least


 


28

















 


twenty-five percent in aggregate
principal amount at maturity of the Securities of such Series at the time
outstanding; or


 


(d)                                 the Company shall make an
assignment for the benefit of creditors, or shall file a petition in
bankruptcy; or the Company shall be adjudicated insolvent or bankrupt, or shall
petition or shall apply to any court having jurisdiction in the premises for
the appointment of a receiver, trustee, liquidator or sequestrator of, or for,
the Company or any substantial portion of the property of the Company; or the
Company shall commence any proceeding relating to the Company or any
substantial portion of the property of the Company under any insolvency,
reorganization, arrangement, or readjustment of debt, dissolution, winding-up,
adjustment, composition or liquidation law or statute of any jurisdiction,
whether now or hereafter in effect (hereinafter in this subsection (d)
called “Proceeding”); or if there shall be commenced against the Company any
Proceeding and an order approving the petition shall be entered, or such
Proceeding shall remain undischarged for a period of 60 days; or a receiver,
trustee, liquidator or sequestrator of, or for, the Company or any substantial
portion of the property of the Company shall be appointed and shall not be
discharged within a period of 60 days; or the Company by any act shall indicate
consent to or approval of or acquiescence in any Proceeding or the appointment
of a receiver, trustee, liquidator or sequestrator of, or for, the Company or
any substantial portion of the property of the Company; provided that a
resolution or order for winding-up the Company with a view to its
consolidation, amalgamation or merger with another company or the transfer of
its assets as a whole, or substantially as a whole, to such other company as
provided in Section 9.1 shall not make the rights and remedies herein
enforceable under this subsection (d) of Section 5.1 if such
last-mentioned company shall, as a part of such consolidation, amalgamation,
merger or transfer, and within 60 days from the passing of the resolution or
the date of the order, comply with the conditions to that end stated in
Section 9.1; or


 


(e)                                  any other Event of Default provided
in the Supplemental Indenture or resolution of the Board of Directors under
which such Series of Securities is issued or in the form of Security for such
Series;


 


then and in each and every such case, so long as such Event of
Default with respect to such Series shall not have been remedied or waived,
unless the principal of all Securities of such Series shall have already become
due and payable, either the Trustee for such Series or the Holders of not less
than twenty-five percent in aggregate principal amount at maturity of the
Securities of such Series then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by such Holders), may declare the
principal (or, in the case of Original Issue Discount Securities, such
principal amount as may be determined in accordance with the terms thereof) of
all the Securities of such Series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such Series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if at any time after the principal of the Securities of
such Series (or, in the case of Original Issue Discount Securities, such
principal amount as may be determined in accordance with the terms thereof)
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit


 


29

















 


with the Trustee a sum sufficient to pay in the currency or
currency unit in which the Securities of such Series are payable (except as
otherwise provided pursuant to Section 2.2 for the Securities of such
Series and except as provided in Section 2.11(b), (e) and (f) hereof) all
matured installments of interest, if any, upon all the Securities of such
Series and the principal of any and all Securities of such Series which shall
have become due otherwise than by such acceleration (with interest upon such
principal and, to the extent that payment of such interest is enforceable under
applicable law, upon overdue installments of interest, at the rate borne by the
Securities of such Series (or, in the case of Original Issue Discount
Securities, at the yield to maturity) to the date of such payment or deposit)
and in Dollars such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel and all other
expenses and liabilities incurred, and all advances made, by the Trustee, its
agents, attorneys and counsel and any and all defaults under this Indenture,
other than the nonpayment of the principal of Securities of such Series which
shall have become due by such acceleration, shall have been remedied then and
in every such case the Holders of a majority in aggregate principal amount at
maturity of the Securities of such Series then Outstanding, by written notice
to the Company and to the Trustee for the Securities of such Series, may waive
all defaults and rescind and annul such declaration and its consequences; but
no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.


 


SECTION 5.2                          Collection of Indebtedness By
Trustee; Trustee May Prove Debt.  The Company
covenants that (a) in case default shall be made in the payment of any
installment of interest on any of the Securities of any Series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity
of the Securities of such Series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee for the Securities of such Series,
the Company will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series and the Holders of any
Coupons appertaining thereto the whole amount that then shall have become due
and payable on all Securities of such Series or such Coupons for principal of
or interest, as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the
same rate as the rate of interest specified in the Securities of such Series);
and in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and counsel,
and any expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee.


 


Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities of any Series to the persons
entitled thereto, whether or not the principal of and interest on the
Securities of such Series are overdue.


 


In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee for the Securities of such Series, in its own name and
as trustee of an express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceedings to


 


30



















judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon such Securities and
collect in the manner provided by law out of the property of the Company or
other obligor upon such Securities and Coupons, wherever situated, the moneys
adjudged or decreed to be payable.


 


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


 


(a)           to
file and prove a claim or claims for the whole amount of principal (or, if the
Securities of such Series are Original Issue Discount Securities, such portion
of the principal amount as may be due and payable with respect to the
Securities of such Series pursuant to a declaration in accordance with Section
5.1 hereof) and interest owing and unpaid in respect of the Securities of any
Series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee,) and of the Securityholders and the Holders of any Coupons
appertaining thereto allowed in any judicial proceedings relative to the Company
or other obligor upon all Securities of any Series, or to the creditors or
property of the Company or such other obligor,


 


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


 


(c)           to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims
of the Securityholders and of the Trustee on their behalf; and any trustee,
receiver, or liquidator, custodian or other similar official is hereby
authorized by each of the Holders to make payments to the Trustee for the
Securities of such Series, and, in the event that such Trustee shall consent to
the making of payments directly to the Securityholders, to pay to such Trustee
such amounts as shall be sufficient to cover reasonable compensation to such
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by such Trustee and each predecessor Trustee and all other amounts due to
such Trustee or any predecessor Trustee pursuant to Section 6.6.


 


31

















 


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


 


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


 


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


 


SECTION 5.3         Application
of Proceeds.  Any moneys
collected by the Trustee for the Securities of such Series pursuant to this
Article in respect of the Securities of any Series shall be applied in the
following order at the date or dates fixed by such Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and any Coupons appertaining thereto in
respect of which moneys have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of such Series in reduced principal
amounts in exchange for the presented Securities of like Series if only
partially paid, or upon surrender thereof if fully paid:


 


FIRST:                To the payment of costs and
expenses applicable to such Series in respect of which moneys have been
collected, including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and of all
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.6;


 


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


 


32

















 


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


 


FOURTH:           To the payment of the remainder, if
any, to the Company.


 


SECTION 5.4         Suits
for Enforcement. In case an Event of Default has occurred, has not
been waived and is continuing, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem necessary to protect
and enforce any of such rights, either at law or in equity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.


 


SECTION 5.5         Restoration
of Rights On Abandonment of Proceedings. In case the Trustee for the
Securities of any Series shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and in
every such case the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and
powers of the Company, the Trustee and the Securityholders shall continue as
though no such proceedings had been taken.


 


SECTION 5.6         Limitations
on Suits By Securityholders. No Holder of any Security of any Series
or Holder of any Coupon shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of such Series
then Outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity, as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being


 


33

















 


expressly covenanted by
the taker and Holder of every Security and by a Holder of each Coupon
appertaining thereto with every other taker and Holder of a Security or Holder
of any Coupon appertaining thereto and the Trustee, that no one or more Holders
of Securities of any Series or one or more Holders of any Coupons appertaining
thereto shall have any right in any manner whatever, by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights
of any other such Holder of Securities or any other Holders of such Coupons, or
to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable Series and all the Holders of Coupons appertaining
thereto. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.


 


SECTION 5.7         Unconditional
Right of Securityholders To Institute Certain Suits. Notwithstanding
any provision in this Indenture and any provision of any Security or Coupon,
the right of any Holder of any Security and the right of any Holder of any
Coupon appertaining thereto to receive payment of the principal of and interest
on such Security at the respective rates, in the respective amount and in the
currency or currency unit therein prescribed on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.


 


SECTION 5.8         Powers
and Remedies Cumulative; Delay Or Omission Not Waiver of Default.
Except as provided in Section 5.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Securityholders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee, to the Securityholders or to the Holder of
any Coupon appertaining thereto may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee, the Securityholders or
Holders of any Coupon.


 


SECTION 5.9         Control
By Securityholders. The Holders of a majority in aggregate principal
amount of the Securities of each Series affected (with each Series treated as a
separate class) at the time Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with
respect to the Securities of such Series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture and provided further that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be


 


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taken or if the Trustee
in good faith by its board of directors, the executive committee, or a trust
committee of directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in
personal liability or if the Trustee in good faith shall so determine that the
actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all Series
or of the Holders of any Coupons appertaining thereto so affected not joining
in the giving of said direction, it being understood that (subject to Section
6.1) the Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.


 


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


 


SECTION 5.10       Waiver
of Past Defaults. Prior to the declaration of the acceleration of
the maturity of the Securities of any Series as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of such
Series at the time Outstanding may on behalf of the Holders of all the
Securities of such Series and Holders of all Coupons, if any, appertaining
thereto waive any past default hereunder or its consequences, except a default
in the payment of the principal of or interest on any of the Securities of such
Series. In the case of any such waiver, the Company, the Trustee, the Holders
of the Securities of such Series and the Holder of any Coupon appertaining
thereto shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.


 


Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.


 


SECTION 5.11       Trustee
To Give Notice of Default, But May Withhold In Certain Circumstances.
The Trustee shall transmit to the Securityholders of any Series notice in the
manner and to the extent provided in Section 11.4, of all defaults which have
occurred with respect to such Series, such notice to be transmitted within 90
days after the occurrence thereof, unless such defaults shall have been cured
before the giving of such notice (the term “default” or “defaults” for the
purposes of this Section being hereby defined to mean any event or condition which
is, or with notice or lapse of time or both would become, an Event of Default);
provided that, except in the case of default in the payment of the principal of
or interest on any of the Securities of such Series or any default in the
payment of any sinking fund installment or analogous obligation in respect of
any of the Securities of such Series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders of such Series.


 


SECTION 5.12       Right
of Court To Require Filing of Undertaking To Pay Costs. All parties
to this Indenture agree, and each Holder of any Security and each Holder of any
Coupon,


 


35

















 


by his acceptance
thereof, shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any Series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such Series, or, in the case of
any suit relating to or arising under clause (d) of Section 5.1 (if the suit
relates to Securities of more than one but less than all Series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in
the case of any suit relating to or arising under clause (d) (if the suit under
clause (d) relates to all the Securities then Outstanding), (e), (f) or (g) of
Section 5.1, 10% in aggregate principal amount of all Securities Outstanding,
or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of or interest on any Security on or after the due
date expressed in such Security.


 


ARTICLE VI



CONCERNING THE TRUSTEE


 


SECTION 6.1         Duties
and Responsibilities of The Trustee; During Default; Prior to Default.
With respect to the Holders of any Series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of a particular Series and after the curing or waiving of all Events
of Default which may have occurred with respect to such Series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a
Series has occurred (which has not been cured or waived) of which a Responsible
Officer has actual knowledge, 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 such person’s own affairs.


 


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


 


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


 


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


 


36

















 


(ii)           in the absence
of bad faith on the part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any
such statements, certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;


 


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


 


(c) the Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders pursuant to Section 5.9 relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.


 


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


 


Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the conditions of this
Section 6.1.


 


SECTION 6.2         Certain
Rights of The Trustee. Subject to Section 6.1:


 


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


 


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


 


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


 


37

















 


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


 


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


 


(f)            prior
to the occurrence of any Event of Default hereunder and after the curing or
waiving of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Holders of not less than a
majority in aggregate principal amount of the Securities of all Series affected
then Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity against such expenses
or liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Company or, if paid by the Trustee or
any predecessor Trustee, shall be repaid by the Company upon demand;


 


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


 


(h)           the
Trustee shall not be deemed to have notice of any Default or Event of Default
(other than any Event of Default under Section 5.1(a) or 5.1(b)) unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of such Default or Event of Default is received by the Trustee
at the Corporate Trust Office of the Trustee;


 


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


 


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


 


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SECTION 6.3         Trustee
Not Responsible For Recitals, Disposition of Securities Or Application of
Proceeds Thereof. The recitals contained herein and in the
Securities, except the Trustee’s certificate of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or the Coupons.
The Trustee represents that it is duly authorized to execute and deliver this
Indenture and perform its obligations hereunder. The Trustee shall not be
accountable for the use or application by the Company of any of the Securities
or of the proceeds thereof.


 


SECTION 6.4         Trustee
and Agents May Hold Securities; Collections, Etc. The Trustee, any
Paying Agent, Security registrar, or any agent of the Company or the Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and, subject to Sections 6.8 and 6.13, if operative, may
otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee or such agent.


 


SECTION 6.5         Moneys
Held By Trustee. Subject to the provisions of Section 10.4 hereof,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Company
or the Trustee shall be under any liability for interest on any moneys received
by it hereunder.


 


SECTION 6.6         Compensation
and Indemnification of Trustee and Its Prior Claim. The Company and
the Guarantor jointly and severally shall pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing between the Company, the Guarantor and the Trustee in Dollars (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Company and the Guarantor covenant and
agree to pay or reimburse the Trustee and each predecessor Trustee upon its
request in Dollars for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company and the Guarantor also jointly
and severally covenant to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any and all loss, liability, damage,
claim or expense, including taxes (other than taxes based on the income of the
Trustee), incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against or investigating any claim (whether
asserted by the Company, the Guarantor, a Holder or any other Person) of
liability in the premises. The obligations of the Company and the Guarantor
under this Section to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the


 


39

















 


Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities or
the Holders of particular Coupons, and the Securities are hereby subordinated
to such senior claim.


 


When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(d), the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for
the services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.


 


SECTION 6.7         Right
of Trustee to Rely On Officer’s Certificate, Etc.  Subject to Sections 6.1 and 6.2, whenever in
the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officer’s Certificate complying with
Section 11.5 delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted by it or under the
provisions of this Indenture upon the faith thereof.


 


SECTION 6.8         Disqualification
Of Trustee; Conflicting Interests. If the Trustee for the Securities
of any Series has or shall acquire any conflicting interest, as defined in the
Trust Indenture Act, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the default (as defined in the Trust Indenture
Act) to which such conflicting interest relates has not been cured or waived or
otherwise eliminated before the end of such 90-day period, the Trustee shall,
either eliminate such conflicting interest or resign in the manner and with the
effect specified in the Trust Indenture Act and this Indenture.


 


SECTION 6.9         Persons
Eligible For Appointment As Trustee. The Trustee for each Series of
Securities hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or the
District of Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.


 


SECTION 6.10       Resignation
and Removal; Appointment of Successor Trustee.


 


(a)           The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign
with respect to one or more or all Series of Securities by giving written
notice of resignation to the Company and by mailing notice thereof to the
Holders in the manner and to the extent provided in Section 11.4. Upon
receiving such notice of resignation, the


 


40

















 


Company shall promptly appoint a successor trustee or trustees
with respect to the applicable Series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any Series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona
fide Holder of a Security or Securities of the applicable Series for at least
six months may, subject to the provisions of Section 5.12, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and
prescribe, appoint a successor trustee.


 


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


 


(i)            the Trustee
shall fail to comply with the provisions of Section 6.8 with respect to any
Series of Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security or Securities of
such Series for at least six months unless the Trustee’s duty to resign is
stayed in accordance with the provisions of Section 310(b) of the Trust
Indenture Act; or


 


(ii)           the Trustee
shall cease to be eligible in accordance with the provisions of Section 6.9 and
shall fail to resign after written request therefor by the Company or by any
Securityholder; or


 


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


 


then, in any such case, the Company may remove the Trustee with
respect to the applicable Series of Securities and appoint a successor trustee
for such Series by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 5.12, any Securityholder who has been a bona fide
Holder of a Security or Securities of such Series for at least six months may
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such Series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.


 


(c)           The
Holders of a majority in aggregate principal amount of the Securities of each
Series at the time Outstanding may at any time remove the Trustee with respect
to Securities of such Series and appoint a successor trustee with respect to
the Securities of such Series by delivering to the Trustee so removed, to the
successor trustee so appointed


 


41

















 


and to the Company the evidence provided for in Section 7.1 of the
action in that regard taken by the Securityholders.


 


If no successor Trustee shall have been appointed with respect to
such series within 30 days after the mailing of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.


 


(d)           Any
resignation or removal of the Trustee with respect to any Series and any
appointment of a successor trustee with respect to such Series pursuant to any
of the provisions of this Section 6.10 shall become effective upon acceptance
of appointment by the successor trustee as provided in Section 6.11.


 


SECTION 6.11       Acceptance
of Appointment By Successor Trustee. Any successor trustee appointed
as provided in Section 6.10 shall execute and deliver to the Company and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee with respect to
all or any applicable Series shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such Series of its
predecessor hereunder, with like effect as if originally named as trustee for
such Series hereunder; but, nevertheless, on the written request of the Company
or of the successor trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 10.4 and upon payment of its
charges, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.


 


If a successor trustee is appointed with respect to the Securities
of one or more (but not all) Series, the Company, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable Series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any Series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.


 


No successor trustee with respect to any Series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time of
such acceptance such successor trustee shall be qualified under the provisions
of Section 6.8 and eligible under the provisions of Section 6.9.


 


42

















 


Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Company shall give notice in the manner and
to the extent provided in Section 11.4 to the Holders of Securities of any
Series for which such successor trustee is acting as trustee at their last
addresses as they shall appear in the Security register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Company fails to mail such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.


 


SECTION 6.12       Merger,
Conversion, Consolidation Or Succession to Business of Trustee. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.


 


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


 


SECTION 6.13       Preferential
Collection of Claims Against the Company. If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).


 


ARTICLE VII



CONCERNING THE SECURITYHOLDERS


 


SECTION 7.1         Evidence
of Action Taken By Securityholders.


 


(a)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all Series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing;


 


43

















 


and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee. Proof of execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject
to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Article.


 


(b)           The
ownership of Registered Securities shall be proved by the Security register.


 


(c)           The
amount of Unregistered Securities held by any Person executing any instrument
or writing as a Securityholder, the numbers of such Unregistered Securities,
and the date of his holding the same may be proved by the production of such
Securities or by a certificate executed by any trust company, bank, broker or
member of a national securities exchange (wherever situated), as depositary, if
such certificate is in form satisfactory to the Trustee, showing that at the
date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Unregistered Securities therein described; or such facts
may be proved by the certificate or affidavit of the Person executing such
instrument or writing as a Securityholder, if such certificate or affidavit is
in form satisfactory to the Trustee. The Trustee and the Company may assume
that such ownership of any Unregistered Security continues until (i) another
certificate or affidavit bearing a later date issued in respect of the same
Unregistered Security is produced, or (ii) such Unregistered Security is
produced by some other person, or (iii) such Unregistered Security is
surrendered in exchange for a Registered Security, or (iv) such Unregistered
Security has been cancelled in accordance with Section 2.9.


 


SECTION 7.2         Proof
of Execution of Instruments. Subject to Sections 6.1 and 6.2, the execution
of any instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee.


 


SECTION 7.3         Holders
To Be Treated As Owners. The Company, the Trustee and any agent of
the Company or the Trustee may deem and treat the person in whose name any
Security shall be registered upon the Security register for such Series as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and interest
on such Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon any such
Security.


 


SECTION 7.4         Securities
Owned By Company Deemed Not Outstanding. In determining whether the
Holders of the requisite aggregate principal amount of Outstanding Securities
of any or all Series have concurred in any direction, consent or waiver under
this Indenture or whether a quorum is present at a meeting of Holders of
Securities, Securities which are owned by the Company or any other obligor on
the Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by


 


44

















 


or under direct or
indirect common control with the Company or any other obligor on the Securities
with respect to which such determination is being made shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, and for purposes of
determining the presence of a quorum, only Securities which a Responsible
Officer of the Trustee actually knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection
in respect of any decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly
an Officer’s Certificate listing and identifying all Securities, if any, known
by the Company to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 6.1 and 6.2, the Trustee
shall be entitled to accept such Officer’s Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.


 


SECTION 7.5         Right
of Revocation of Action Taken. At any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 7.1, of the taking of any
action by the Holders of the percentage in aggregate principal amount of the
Securities of any or all Series, as the case may be, specified in this
Indenture in connection with such action, any Holder of a Security the serial
number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the corporate trust office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all
Series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Securities affected by such action.


 


SECTION 7.6         Record
Date For Determination of Holders Entitled To Vote. The Company may,
in the circumstances permitted by the Trust Indenture Act, set a record date
for the purpose of determining the Securityholders entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Securityholders. If not set by the Company prior to the first solicitation
of a Securityholder made by any Person in respect of any such action, or, in
the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 4.1) prior to such
first solicitation or vote, as the case may be. With regard to any record date,
only the Holders on such date (or their duly appointed proxies) shall be
entitled to give or take, or vote on, the relevant action.


 


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ARTICLE VIII



SUPPLEMENTAL INDENTURES


 


SECTION 8.1         Supplemental
Indentures Without Consent of Securityholders. The Company and, if
applicable, any Guarantor, when authorized by a resolution of their Boards of
Directors, and the Trustee for the Securities of any and all Series may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of
1939 as in force at the date of the execution thereof), in form satisfactory to
such Trustee, for one or more of the following purposes:


 


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


 


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


 


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


 


(d)           to
cure any ambiguity or to correct or supplement any provision contained herein
or in any supplemental indenture which may be defective or inconsistent with
any other provision contained herein or in any supplemental indenture; or to
make such other provisions in regard to matters or questions arising under this
Indenture or under any supplemental indenture as the Board of Directors may
deem necessary or desirable and which shall not materially and adversely affect
the interests of the Holders of the Securities or the Holders of any Coupons;


 


(e)           to
establish the form or terms of Securities of any Series and the related
Guaranties as permitted by Section 2.1;


 


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(f)            to
reflect the release of any Guarantor from its obligations with respect to its
Guaranty pursuant to the terms of such Guaranty or to add a Guarantor in
accordance with the terms of any Series of Securities; or


 


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


 


The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.


 


SECTION 8.2         Supplemental
Indentures With Consent of Securityholders.  With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of each Series
affected by such supplemental indenture 
(treated as one class), the Company, and, if applicable, any Guarantor,
when authorized by a resolution of its Board of Directors, and the Trustee for
such Series of Securities may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of each such Series; provided, that no such supplemental
indenture shall (a) extend the final maturity of any Security,  or reduce the principal amount thereof or
any premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or impair or
affect the right of any Securityholder to institute suit for payment thereof
or, if the Securities provide therefor, any right of repayment at the option of
the Securityholder without the consent of the Holder of each Security so
affected, or (b) reduce the aforesaid percentage of Securities of any Series,
the consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so affected.


 


Upon the request of the Company, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an assistant
secretary of the Company authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee for such Series of Securities
of evidence of the consent of Securityholders as aforesaid and other documents,
if any, required by Section 7.1, the Trustee for such Series of Securities
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects such Trustee’s own rights, duties or
immunities under this Indenture or


 


47

















 


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


 


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


 


Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice in the manner and to the extent provided in Section 11.4 to
the Holders of Securities of each Series affected thereby at their addresses as
they shall appear on the Securities register of the Company, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.


 


For the purposes of this Section 8.2 only, if the Securities of
any Series are issuable upon the exercise of warrants, each holder of an
unexercised and unexpired warrant with respect to such series shall be deemed
to be a Holder of Outstanding Securities of such Series in the amount issuable
upon the exercise of such warrant. For such purposes, the ownership of any such
warrant shall be determined by the Company in a manner consistent with
customary commercial practices. The Trustee for such series shall be entitled
to rely on an Officer’s Certificate as to the principal amount of Securities of
such Series in respect of which consents shall have been executed by holders of
such warrants.


 


SECTION 8.3         Effect
of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of Securities of each
Series and Holders of Coupons affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.


 


SECTION 8.4         Documents
to Be Given to Trustee. The Trustee, subject to the provisions of
Sections 6.1 and 6.2, shall receive an Officer’s Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed
pursuant to this Article Eight complies with the applicable provisions of this
Indenture.


 


SECTION 8.5         Notation
On Securities In Respect of Supplemental Indentures. Securities of
any Series (including any Coupons appertaining thereto) authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article may bear, upon the direction of the Company, a
notation in form satisfactory to the Trustee for the Securities of such Series
as to any matter provided for by such supplemental indenture or as to any
action taken at any such meeting. If the Company or the Trustee shall so
determine, new Securities of any Series and any Coupons appertaining thereto so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company,


 


48

















 


authenticated by the
Trustee and delivered in exchange for the Securities of such Series then
Outstanding and any Coupons appertaining thereto then Outstanding.


 


ARTICLE IX



CONSOLIDATION, MERGER, SALE OR CONVEYANCE


 


SECTION 9.1         Successor
Corporation Substituted. In case of any consolidation, merger, sale or
conveyance, and following such an assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein. Such successor corporation may
cause to be signed, and may issue either in its own name or in the name of the
Company prior to such succession any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities and Coupons, if any, appertaining thereto, which previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities and Coupons, if any, appertaining thereto, so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities and Coupons, if any, appertaining thereto,
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities and Coupons, if any, appertaining thereto, had
been issued at the date of the execution hereof. In case of any such
consolidation, merger, sale, lease or conveyance such changes in phraseology and
form (but not in substance) may be made in the Securities and Coupons, if any,
appertaining thereto, thereafter to be issued as may be appropriate.


 


In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Company or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this Indenture and
the Securities and may be liquidated and dissolved.


 


SECTION 9.2         Opinion
of Counsel to Trustee. The Trustee, subject to the provisions of
Sections 6.1 and 6.2, shall receive an Opinion of Counsel, prepared in
accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.


 


ARTICLE X



SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS


 


SECTION 10.1       Satisfaction
and Discharge Of Indenture.


 


(a)           If
at any time (A) the Company shall have paid or caused to be paid the principal
of and interest on all the Securities of any Series and Coupons, if any,
appertaining thereto Outstanding hereunder (other than Securities and Coupons
which


 


49

















 


have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.8) as and when the same shall have become due
and payable, or (B) the Company shall have delivered to the Trustee for cancellation
all Securities of any Series and Coupons theretofore authenticated (other than
any Securities of such Series and Coupons which have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.8)
or (c)(i) all the Securities of such Series and Coupons not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Company shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
the entire amount in the currency or currency unit required (other than moneys
repaid by the Trustee or any Paying Agent to the Company in accordance with
Section 10.4) or Government Obligations maturing as to principal and interest
in such amounts and at such times as will ensure the availability of cash
sufficient, in the opinion of a firm of independent certified public
accountants, to pay at maturity or upon redemption all Securities of such
Series and Coupons (other than any Securities of such Series and Coupons which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.8) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such
date of maturity as the case may be, and if, in any such case, the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company with respect to Securities of such Series and Coupons, then this
Indenture shall cease to be of further effect with respect to Securities of
such Series and Coupons (except as to (i) rights of registration of transfer
and exchange, and the Company’s right of optional redemption, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities and Coupons, (iii)
rights of Holders to receive payments of principal thereof and interest thereon
upon the original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder and
(v) the rights of the Securityholders of such Series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or
any of them), and, subject to Section 10.5, the Trustee, on demand of the
Company accompanied by an Officer’s Certificate and an Opinion of Counsel and
at the cost and expense of the Company, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with respect
to such Series; provided, that the rights of Holders of the Securities and
Holders of Coupons to receive amounts in respect of principal of and interest
on the Securities and Coupons held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Company agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably incurred and to
compensate the Trustee for any services thereafter reasonably rendered by the
Trustee in connection with this Indenture, the Securities of such Series and
Coupons.


 


(b) In addition to the provisions
of Section 10.1(a), the Company may terminate its obligations under the
Securities of any Series and this Indenture with respect to such Series, except
those obligations referred to in the penultimate paragraph of this Section
10.1, if the Company has irrevocably deposited or caused to be deposited with
the


 


50

















 


Trustee at its Corporate Trust Office or such other office as the
Trustee may designate, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds in trust solely
for the benefit of the Securityholders of such Series for that purpose, (i) cash
in the currency or currency unit required or, (ii) Government Obligations
maturing as to principal and interest in such amounts and at such times as are
sufficient, in the opinion of a firm of independent certified public
accountants, without consideration of any reinvestment of such principal or
interest, to pay the principal of and interest on the outstanding Securities of
such Series and Coupons to maturity or redemption, as the case may be, provided
that the Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such Government Obligations to the payment of said principal of
and interest on the Outstanding Securities and Coupons of such Series.


 


Such irrevocable trust agreement shall include, among other
things, provision for (1) payment of the principal of and interest on the
Securities of such Series and Coupons when due (by redemption, sinking fund
payments or otherwise), (2) the payment of the expenses of the Trustee incurred
or to be incurred in connection with carrying out such trust provisions, (3)
rights of registration, transfer, substitution and exchange of Securities of
such Series and Coupons in accordance with the terms stated in this Indenture
and (4) continuation of the rights and obligations and immunities of the
Trustee as against the Securityholders of such Series as stated in this
Indenture.


 


Notwithstanding the first paragraph of this Section 10.1(b), the
Company’s obligations in Sections 2.5, 2.6, 3.1, 3.2, 3.5, 5.1, 6.6, 6.10, 10.4
and 10.5 shall survive until the Securities of such Series and Coupons, if any,
are no longer Outstanding; provided,
however, that the Company’s
obligations in Section 5.1 shall survive only with respect to Events of Default
as defined in Sections 5.1(a), 5.1(b) and 5.1(c). Thereafter, the Company’s
obligations in Sections 6.6, 10.4 and 10.5 shall survive such satisfaction and
discharge.


 


After any such irrevocable deposit, accompanied by an Officer’s
Certificate which shall state that the provisions of the first two paragraphs of
this Section 10.1(b) have been complied with, and upon delivery by the Company
to the Trustee of (i) an Opinion of Counsel to the effect that either (a) as a
result of such deposit and the related exercise of the Company’s option under
this Section 10.1(b) registration will not be required under the Investment
Company Act of 1940, as amended, by the Company, the trust funds representing
such deposit or the Trustee or (b) all necessary registrations under such Act
have been effected and (ii) an Opinion of Counsel to the effect that
Securityholders of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and discharge and will
be subject to Federal income tax on the same amount and in the same manner and
at the same time as would have been the case if such deposit and discharge had
not occurred, then the Company shall be discharged of its obligations under the
Securities of such Series and this Indenture with respect to such Series except
for those surviving obligations specified above, and the Trustee upon request
shall acknowledge in writing such discharge. Prior to the delivery of such
acknowledgment, the Trustee may require the Company to deliver to it an
Officer’s Certificate and Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the deposit and discharge
contemplated by this provision have been complied with, and the Trustee may
also


 


51

















 


require that the Opinion of Counsel referred to in clause (i) of
this paragraph shall also state that such deposit does not violate applicable
law.


 


SECTION 10.2       Application
By Trustee Of Funds Deposited For Payment Of Securities. Subject to
Section 10.4, all moneys deposited with the Trustee pursuant to Section 10.1
shall be held in trust and applied by it to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent), to the Holders of the particular Securities of such Series and any
Coupons appertaining thereto for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due thereon
for principal and interest; but such money need not be segregated from other
funds except to the extent required by law.


 


SECTION 10.3       Repayment
Of Moneys Held By Paying Agent. In connection with the satisfaction
and discharge of this Indenture with respect to Securities of any Series or
Coupons, all moneys then held by any Paying Agent under the provisions of this
Indenture with respect to such Series of Securities or Coupons shall, upon
demand of the Company, be repaid to it or paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.


 


SECTION 10.4       Return
Of Unclaimed Moneys Held By Trustee and Paying Agent. Any moneys
deposited with or paid to the Trustee or any Paying Agent for the payment of
the principal of or interest on any Security of any Series or Coupons and not
applied but remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall, upon the
written request of the Company and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Company by the Trustee for such Series or such Paying Agent, and
the Holder of the Security of such Series or Holders of Coupons appertaining
thereto shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Company for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any Paying Agent with respect to such moneys shall
thereupon cease.


 


SECTION 10.5       Reinstatement
Of Company’s Obligations. If the Trustee is unable to apply any
funds or Government Obligations in accordance with Section 10.1 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application or by reason of the Trustee’s inability to convert any such funds
or Government Obligations into the currency or currency unit required to be
paid with respect to the Securities of such Series, the Company’s obligations
under this Indenture and the Securities of any Series for which such
application is prohibited shall be revived and reinstated as if no deposit had
occurred pursuant to Section 10.1 until such time as the Trustee is permitted
to apply all such funds or Government Obligations in accordance with Section
10.1 or is able to convert all such funds or Government Obligations; provided,
however, that if the Company has made any payment of interest on or principal
of any of such Securities or Coupons because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Securityholders of such Securities to receive such payment from the funds or
Government Obligations held by the Trustee.


 


52

















 


ARTICLE XI



MISCELLANEOUS PROVISIONS


 


SECTION 11.1       Incorporators,
Stockholders, Officers and Directors Of Company Exempt From Individual
Liability. No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security or Coupon appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and Coupons,
if any, by the Holders thereof and as part of the consideration for the issue
of the Securities.


 


SECTION 11.2       Provisions
Of Indenture For the Sole Benefit Of Parties and Securityholders.
Nothing in this Indenture or in the Securities or Coupons, expressed or
implied, shall give or be construed to give to any Person, firm or corporation,
other than the parties hereto, any Paying Agent and their successors hereunder
and the Holders of the Securities and Coupons, if any, any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the Securities
and Coupons.


 


SECTION 11.3       Successors
and Assigns Of Company Bound By Indenture. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company shall bind its successors and assigns, whether so
expressed or not.


 


SECTION 11.4       Notices
and Demands On Company, Trustee and Securityholders. Any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee, by the Holders of Securities, or by the Holders
of Coupons to or on the Company may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Company is filed by the Company
with the Trustee) to Navistar International Corporation, 4201 Winfield Road,
P.O. Box 1488, Warrenville, Illinois 60555, Attention: Secretary. Any notice,
direction, request or demand by the Company or any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office.


 


Where this Indenture provides for notice to Holders of any event,
(1) if any of the Securities affected by such event are Registered Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed by first-class mail, postage prepaid to such
Registered Holders as their names and addresses appear in the Security register
within the time prescribed and (2) if any of the Securities affected by such
event are Unregistered Securities or Coupon Securities, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if published
once in a newspaper of general circulation in New York, New York and London,
England within the time prescribed. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such


 


53

















 


notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders, and any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given.


 


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


 


SECTION 11.5       Officer’s
Certificates and Opinions Of Counsel; Statements To Be Contained Therein.
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officer’s Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be furnished.


 


Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.


 


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


 


Any certificate, statement or opinion of an officer of the Company
or of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or


 


54

















 


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


 


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


 


SECTION 11.6       Payments
Due On Saturdays, Sundays and Holidays. If the date of maturity of interest
on or principal of the Securities of any Series or Coupons appertaining thereto
or the date fixed for redemption or repayment of any such Security or Coupon
shall not be a Business Day, then payment of interest, premium, if any, or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period
after such date.


 


SECTION 11.7       Conflict
Of Any Provision Of Indenture With Trust Indenture Act Of 1939. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required
to be included herein by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939, such required provision shall control.


 


SECTION 11.8       New
York Law To Govern. THIS INDENTURE
AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE
OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF SUCH STATE.


 


SECTION 11.9       Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.


 


SECTION 11.10     Effect
Of Headings. The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the construction
hereof.


 


SECTION 11.11     Determination
Of Principal Amount. In determining whether the Holders of the
requisite principal amount of outstanding Securities of any Series have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, whether a quorum is present at a meeting of Holders of Securities or
whether sufficient funds are available for redemption or for any other purpose,
the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.1
and the principal amount of any Securities denominated in a Foreign Currency or
Euro that shall be deemed to be outstanding for such purposes shall be
determined by converting the Foreign Currency or the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate as of the date of
such determination.


 


55

















 


ARTICLE XII



REDEMPTION OF SECURITIES AND SINKING FUNDS


 


SECTION 12.1       Applicability
Of Article. The provisions of this Article shall be applicable to
the Securities of any Series which are redeemable before their maturity or to
any sinking fund for the retirement of Securities of a Series except as
otherwise specified as contemplated by Section 2.2 for Securities of such
Series.


 


SECTION 12.2       Notice
Of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Securities of any Series to be redeemed as a whole or in part at the
option of the Company shall be given by giving notice of such redemption as
provided in Section 11.4, at least 30 days and not more than 60 days prior to
the date fixed for redemption to such Holders of Securities of such Series.
Failure to give notice by mail, or any defect in the notice to the Holder of
any Security of a Series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such Series.


 


The notice of redemption to each such Holder shall identify the
Securities to be redeemed (including “CUSIP” or “ISIN” numbers), specify the
date fixed for redemption, the redemption price, the Place or Places of
Payment, that payment will be made upon presentation and surrender of such
Securities, and that, unless otherwise specified in such notice, Coupon
Securities, if any, surrendered for payment must be accompanied by all Coupons
maturing subsequent to the redemption date, failing which the amount of any
such missing Coupon or Coupons will be deducted from the sum due for payment,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue and that, if less than all of the Outstanding Securities of a Series are
to be redeemed, the identification and principal amount of the Securities to be
redeemed. If less than all of the Securities of any Series and to be redeemed,
the notice of redemption shall specify the numbers of the Securities of such
Series to be redeemed, and, if only Unregistered Securities of any Series are
to be redeemed, and if such Unregistered Securities may be exchanged for
Registered Securities, the last date on which exchanges of Unregistered
Securities for Registered Securities not subject to redemption may be made. In
case any Security of a Series is to be redeemed in part, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security and any Coupons appertaining thereto, a new Security
or Securities of such Series in principal amount equal to the unredeemed
portion thereof with appropriate Coupons will be issued.


 


The notice of redemption of Securities of any Series to be redeemed
at the option of the Company shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company. The
Company shall give the Trustee at least 45 days prior written notice of any
redemption hereunder.


 


Not later than 9:00 a.m., Chicago time, on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will have on deposit with the Trustee or with one or more paying agents
(or, if the Company is acting as its own paying agent, set


 


56

















 


aside, segregate and hold in trust as provided in Section 3.4) an
amount of money in the currency or currency unit in which the Securities of
such Series and any Coupons appertaining thereto are payable (except as
otherwise specified pursuant to Section 2.2 and except as provided in Sections
2.9(b), (e) and (f) of this Indenture) sufficient to redeem on the redemption
date all the Securities of such Series so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption. If less than all the Outstanding Securities of a Series are to
be redeemed, the Company will deliver to the Trustee at least 60 days prior to
the date fixed for redemption an Officer’s Certificate stating the aggregate
principal amount of Securities to be redeemed.


 


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


 


SECTION 12.3       Payment
Of Securities Called For Redemption. If notice of redemption has
been given as above provided, the Securities or portions of Securities
specified in such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 6.5 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have no
right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified
in said notice, said Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that any
semiannual payment of interest on Registered Securities becoming due on the
date fixed for redemption shall be payable to the Holders of such Securities
registered as such on the relevant record date subject to the terms and
provisions of Section 2.3 hereof.


 


If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing on or after the date fixed for
redemption, such Security may be paid after deducting from the redemption price
an amount equal to the face amount of all such missing Coupons or the surrender
of such missing Coupon or Coupons may be waived by the Company and the Trustee,
if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any missing Coupon in respect
of which a deduction shall have been made from the redemption price, such
Holder shall be entitled to


 


57

















 


receive the amount so deducted; provided, however, that, unless
otherwise provided pursuant to Section 2.2, interest represented by Coupons
shall be payable only upon presentation and surrender of those Coupons at an
office or agency located outside of the United States.


 


If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by the Security.


 


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


 


SECTION 12.4       Exclusion
Of Certain Securities From Eligibility For Selection For Redemption.
Securities shall be excluded from eligibility for selection for redemption if
they are identified by registration and certificate number in a written
statement signed by an authorized officer of the Company and delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption
may be given as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.


 


SECTION 12.5       Mandatory
and Optional Sinking Funds. The minimum amount of any sinking fund
payment provided for by the terms of Securities of any Series is herein
referred to as a “mandatory sinking fund payment”, and any payment in excess of
such minimum amount provided for by the terms of Securities of any Series is
herein referred to as an “optional sinking fund payment”. The date on which a
sinking fund payment is to be made is herein referred to as the “sinking fund
payment date”.


 


In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such Series (together with
the unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking fund)
by the Company or receive credit for Securities of such Series (not previously
so credited) theretofore purchased or otherwise acquired (except as aforesaid)
by the Company and delivered to the Trustee for cancellation pursuant to
Section 2.9, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit
for Securities of such Series (not previously so credited) redeemed by the
Company through any optional redemption provision contained in the terms of
such Series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.


 


On or before the sixtieth day next preceding each sinking fund
payment date for any Series of Securities, the Company will deliver to the
Trustee a written statement (which need not contain the statements required by
Section 11.5) signed by an authorized officer of the Company (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of


 


58

















 


cash in the currency or currency unit in which the Securities of
such Series and Coupons, if any, appertaining thereto are payable (except as
otherwise specified pursuant to Section 2.2 for the Securities of such Series
and except as provided in Section 2.11(b), (e) and (f) hereof), and the portion
to be satisfied by credit of Securities of such Series, (b) stating that none
of the Securities of such Series has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect
to such Series have occurred (which have not been waived or cured) and are
continuing, (d) stating whether or not the Company intends to exercise its
right to make an optional sinking fund payment with respect to such Series and,
if so, specifying the amount of such optional sinking fund payment which the
Company intends to pay on or before the next succeeding sinking fund payment
date and (e) specifying such sinking fund payment date. Any Securities of such
Series to be credited and required to be delivered to the Trustee in order for
the Company to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.9 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Company
shall become unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Company, on or before any such sixtieth day,
to deliver such written statement and Securities specified in this paragraph,
if any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the mandatory sinking
fund payment for such Series due on the next succeeding sinking fund payment
date shall be paid entirely in cash (in the currency or currency unit described
above) without the option to deliver or credit Securities of such Series in
respect thereof and (ii) that the Company will make no optional sinking fund
payment with respect to such Series as provided in this Section.


 


If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash (in the currency or currency unit described above) on
the next succeeding sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $100,000, or the
equivalent in the currency or currency unit in which the Securities of such
Series are payable (or a lesser sum if the Company shall so request) with
respect to the Securities of any particular Series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of
Securities of such Series at the sinking fund redemption price together with
accrued interest to the date fixed for redemption. If such amount shall be
$100,000, or the equivalent in the currency or currency unit in which the
Securities of such Series are payable, or less and the Company makes no such
request then it shall be carried over until a sum in excess of $100,000, or the
equivalent in the currency or currency unit in which the Securities of such
Series are payable, is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such Series to absorb said cash,
as nearly as may be possible, and shall (if requested in writing by the
Company) inform the Company of the serial numbers of the Securities of such
Series (or portions thereof) so selected. Securities of any Series which are
identified by registration and certificate number in an Officer’s Certificate
at least 60 days prior to the sinking fund payment date as being beneficially
owned by, and not pledged or hypothecated by, the Company or an entity directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be excluded from Securities of such Series
eligible for selection for redemption. The Trustee, in the name and at the
expense of the Company (or the Company, if it shall so notify the Trustee in
writing) shall cause notice of


 


59

















 


redemption of the Securities of such Series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such Series in part at the
option of the Company. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such Series shall be added to
the next cash sinking fund payment for such Series and, together with such
payment, shall be applied in accordance with the provisions of this Section.
Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular Series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such Series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such Series at maturity.


 


The Trustee shall not convert any currency or currency unit in
which the Securities of such Series are payable for the purposes of such
sinking fund application unless specifically requested to do so by the Company,
and any such conversion agreed to by the Trustee in response to such request
shall be for the account and at the expense of the Company and shall not affect
the Company’s obligation to pay the Holders in the currency or currency unit to
which such Holder may be entitled.


 


Not later than 9:00 a.m., Chicago time, on the sinking fund
payment date, the Company shall have paid to the Trustee in cash (in the
currency or currency unit described in the third paragraph of this Section
12.5) or shall otherwise provide for the payment of all interest accrued to the
date fixed for redemption on Securities to be redeemed on the next following
sinking fund payment date.


 


The Trustee shall not redeem or cause to be redeemed any
Securities of a Series with sinking fund moneys or mail or publish any notice
of redemption of Securities for such Series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities or
of any Event of Default except that, where the mailing or publication of notice
of redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Five and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.


 


SECTION 12.6       Repayment
At the Option Of the Holders. Securities of any Series which are
repayable at the option of the Holders thereof before their stated maturity
shall be repaid in accordance with the terms of the Securities of such Series.


 


The repayment of any principal amount of Securities pursuant to
such option of the Holder to require repayment of Securities before their
stated maturity, for purposes of Section 10.1, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented


 


60

















 


by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled.


 


ARTICLE XIII



GUARANTIES


 


SECTION 13.1       Guaranty.  Subject to this Article Thirteen, if the
Securities of any Series provide for a Guaranty, any such Guarantor hereby
guarantees to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Securities or the
obligations of the Company hereunder or thereunder, that: (a) the principal of
and interest on the Securities will be promptly paid in full when due, whether
at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Securities, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, that
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, such Guarantor shall be
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.


 


Each Guarantor hereby agrees that its obligations hereunder shall
be unconditional, irrespective of the validity, regularity or enforceability of
the Securities or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of Securities with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that this Guaranty shall not be
discharged except by complete performance of the obligations contained in the
Securities and this Indenture.


 


If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantor or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or a
Guarantor, any amount paid by either to the Trustee or such Holder, this
Guaranty, to the extent theretofore discharged, shall be reinstated in full
force and effect.


 


Each Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between such Guarantor, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five
hereof for the


 


61

















 


purposes of this Guaranty, notwithstanding any stay,  injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as provided in
Article Five hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantor for the purpose of this Guaranty. Each
Guarantor shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guaranty.


 


SECTION 13.2       Limitation
On Guarantor Liability.  Each
Guarantor, and by its acceptance of Securities, each Holder, hereby confirms
that it is the intention of all such parties that the Guaranty not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to any Guaranty. To effectuate
the foregoing intention, the Trustee, the Holders and each Guarantor hereby
irrevocably agree that the obligations of such Guarantor under its Guaranty and
this Article Thirteen shall be limited to the maximum amount as will, after
giving effect to such maximum amount and all other contingent and fixed liabilities
of the Guarantor that are relevant under such laws, result in the obligations
of such Guarantor under its Guaranty not constituting a fraudulent transfer or
conveyance.


 


SECTION 13.3       Execution
and Delivery Of Guaranty.  To
evidence the Guaranty set forth in Section 13.1, each Guarantor hereby agrees
that a notation of such Guaranty in substantially the form included in Exhibit
A attached hereto shall be endorsed by an officer of the Guarantor on each
Security authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of the Guarantor by its president or one of its
vice presidents.


 


Each Guarantor hereby agrees that its Guaranty set forth in
Section 13.1 shall remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of such Guaranty.


 


If an officer whose signature is on this Indenture or on the
Guaranty no longer holds that office at the time the Trustee authenticates the
Security on which a Guaranty is endorsed, the Guaranty shall be valid
nevertheless.


 


The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guaranty
set forth in this Indenture on behalf of the Guarantor.


 


SECTION 13.4       Release
of Guaranty.  Each Guarantor
shall be released from and discharged of its obligations under the Guaranty set
forth in Section 13.1 at such times and upon such events as set forth in one or
more indentures supplemental hereto.


 


[signature page follows]


 


62

















 


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


 


 


	
   

  	
  NAVISTAR INTERNATIONAL

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Terry M. Endsley

  
	
   

  	
  Name:

  	
  Terry M. Endsley

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INTERNATIONAL TRUCK AND ENGINE

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Terry M. Endsley

  
	
   

  	
  Name:

  	
  Terry M. Endsley

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BNY MIDWEST TRUST COMPANY,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D.G. Donovan

  
	
   

  	
  Name:

  	
  D.G. Donovan

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


EXHIBIT A


 


FORM OF NOTATION OF
GUARANTY


 


For value received, the Guarantor unconditionally guarantees, to
the extent set forth in the Indenture and subject to the provisions in the Indenture,
dated as of June 2, 2004 (the “Indenture”), among Navistar International
Corporation, as issuer (the “Company”), the Guarantor and BNY Midwest
Trust Company, as trustee (the “Trustee”) that (a) the principal of and
interest on the Securities will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Securities, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations,  that same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.  The obligations of the Guarantor to the
Holders of Securities and to the Trustee pursuant to the Guaranties and the
Indenture are expressly set forth in Article Thirteen of the Indenture and
reference is hereby made to the Indenture for the precise terms of the
Guaranties.  This Guaranty is subject to
release as and to the extent set forth in Sections 13.4 of the Indenture.  Each Holder of Securities, by accepting the
same agrees to and shall be bound by such provisions.  Capitalized terms used herein and not defined are used herein as
so defined in the Indenture.


 


 


	
   

  	
  [Guarantor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: