exv4w1



 






EXHIBIT 4.1




Encore Acquisition Company



as Issuer




and




Wells Fargo Bank, National Association



as Trustee



 




Indenture




Dated as of November 16, 2005



 




Subordinated Debt Securities





 









 








Encore Acquisition Company




Reconciliation and tie between Trust Indenture Act of 1939



and Indenture, dated as of November 16, 2005



 




	 	 	 	 	 
	Section of	 	 
	Trust Indenture	Section(s) of
	Act of 1939	Indenture
	§310
	 	(a)(1)	 	7.10
	 
	 	(a)(2)	 	7.10
	 
	 	(a)(3)	 	Not Applicable
	 
	 	(a)(4)	 	Not Applicable
	 
	 	(a)(5)	 	7.10
	 
	 	(b)	 	7.08, 7.10
	§311
	 	(a)	 	7.11
	 
	 	(b)	 	7.11
	 
	 	(c)	 	Not Applicable
	§312
	 	(a)	 	2.07
	 
	 	(b)	 	12.03
	 
	 	(c)	 	12.03
	§313
	 	(a)	 	7.06
	 
	 	(b)	 	7.06
	 
	 	(c)	 	7.06
	 
	 	(d)	 	7.06
	§314
	 	(a)	 	4.03, 4.04
	 
	 	(b)	 	Not Applicable
	 
	 	(c)(1)	 	12.04
	 
	 	(c)(2)	 	12.04
	 
	 	(c)(3)	 	Not Applicable
	 
	 	(d)	 	Not Applicable
	 
	 	(e)	 	12.05
	§315
	 	(a)	 	7.01(b)
	 
	 	(b)	 	7.05
	 
	 	(c)	 	7.01(a)
	 
	 	(d)	 	7.01(c)
	 
	 	(d)(1)	 	7.01(c)(1)
	 
	 	(d)(2)	 	7.01(c)(2)
	 
	 	(d)(3)	 	7.01(c)(3)
	 
	 	(e)	 	6.11
	§316
	 	(a)(1)(A)	 	6.05
	 
	 	(a)(1)(B)	 	6.04
	 
	 	(a)(2)	 	Not Applicable
	 
	 	(a)(last sentence)	 	2.11
	 
	 	(b)	 	6.07
	§317
	 	(a)(1)	 	6.08
	 
	 	(a)(2)	 	6.09
	 
	 	(b)	 	2.06
	§318
	 	(a)	 	12.01








 




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






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I            DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	SECTION 1.01 Definitions
	 	 	1	 
	SECTION 1.02 Other Definitions
	 	 	6	 
	SECTION 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	7	 
	SECTION 1.04 Rules of Construction
	 	 	7	 
	 
	 	 	 	 
	ARTICLE II            THE SECURITIES
	 	 	8	 
	SECTION 2.01 Amount Unlimited; Issuable in Series
	 	 	8	 
	SECTION 2.02 Denominations
	 	 	11	 
	SECTION 2.03 Forms Generally
	 	 	11	 
	SECTION 2.04 Execution, Authentication, Delivery and Dating
	 	 	11	 
	SECTION 2.05 Registrar and Paying Agent
	 	 	13	 
	SECTION 2.06 Paying Agent to Hold Money in Trust
	 	 	14	 
	SECTION 2.07 Holder Lists
	 	 	14	 
	SECTION 2.08 Transfer and Exchange
	 	 	14	 
	SECTION 2.09 Replacement Securities
	 	 	15	 
	SECTION 2.10 Outstanding Securities
	 	 	15	 
	SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury Securities
	 	 	16	 
	SECTION 2.12 Temporary Securities
	 	 	16	 
	SECTION 2.13 Cancellation
	 	 	16	 
	SECTION 2.14 Payments; Defaulted Interest
	 	 	16	 
	SECTION 2.15 Persons Deemed Owners
	 	 	17	 
	SECTION 2.16 Computation of Interest
	 	 	17	 
	SECTION 2.17 Global Securities; Book-Entry Provisions
	 	 	17	 
	 
	 	 	 	 
	ARTICLE III            REDEMPTION
	 	 	19	 
	SECTION 3.01 Applicability of Article
	 	 	19	 
	SECTION 3.02 Notice to the Trustee
	 	 	20	 
	SECTION 3.03 Selection of Securities To Be Redeemed
	 	 	20	 
	SECTION 3.04 Notice of Redemption
	 	 	20	 
	SECTION 3.05 Effect of Notice of Redemption
	 	 	21	 
	SECTION 3.06 Deposit of Redemption Price
	 	 	21	 
	SECTION 3.07 Securities Redeemed or Purchased in Part
	 	 	22	 
	SECTION 3.08 Purchase of Securities
	 	 	22	 
	SECTION 3.09 Mandatory and Optional Sinking Funds
	 	 	22	 
	SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities
	 	 	22	 
	SECTION 3.11 Redemption of Securities for Sinking Fund
	 	 	23	 
	 
	 	 	 	 
	ARTICLE IV            COVENANTS
	 	 	23	 
	SECTION 4.01 Payment of Securities
	 	 	23	 
	SECTION 4.02 Maintenance of Office or Agency.
	 	 	24	 
	SECTION 4.03 SEC Reports; Financial Statements
	 	 	24	 






i









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 4.04 Compliance Certificate
	 	 	25	 
	SECTION 4.05 Existence
	 	 	25	 
	SECTION 4.06 Waiver of Stay, Extension or Usury Laws
	 	 	25	 
	SECTION 4.07 Additional Amounts
	 	 	26	 
	 
	 	 	 	 
	ARTICLE V            SUCCESSORS
	 	 	26	 
	SECTION 5.01 Limitations on Mergers, Consolidations and Other Transactions
	 	 	26	 
	SECTION 5.02 Successor Person Substituted
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VI            DEFAULTS AND REMEDIES
	 	 	27	 
	SECTION 6.01 Events of Default
	 	 	27	 
	SECTION 6.02 Acceleration
	 	 	29	 
	SECTION 6.03 Other Remedies
	 	 	30	 
	SECTION 6.04 Waiver of Defaults
	 	 	30	 
	SECTION 6.05 Control by Majority
	 	 	30	 
	SECTION 6.06 Limitations on Suits
	 	 	31	 
	SECTION 6.07 Rights of Holders to Receive Payment
	 	 	31	 
	SECTION 6.08 Collection Suit by Trustee
	 	 	31	 
	SECTION 6.09 Trustee May File Proofs of Claim
	 	 	32	 
	SECTION 6.10 Priorities
	 	 	32	 
	SECTION 6.11 Undertaking for Costs
	 	 	33	 
	 
	 	 	 	 
	ARTICLE VII            TRUSTEE
	 	 	33	 
	SECTION 7.01 Duties of Trustee
	 	 	33	 
	SECTION 7.02 Rights of Trustee
	 	 	34	 
	SECTION 7.03 May Hold Securities
	 	 	35	 
	SECTION 7.04 Trustee’s Disclaimer
	 	 	35	 
	SECTION 7.05 Notice of Defaults
	 	 	35	 
	SECTION 7.06 Reports by Trustee to Holders
	 	 	35	 
	SECTION 7.07 Compensation and Indemnity
	 	 	36	 
	SECTION 7.08 Replacement of Trustee
	 	 	36	 
	SECTION 7.09 Successor Trustee by Merger, etc.
	 	 	38	 
	SECTION 7.10 Eligibility; Disqualification
	 	 	38	 
	SECTION 7.11 Preferential Collection of Claims Against Company
	 	 	39	 
	 
	 	 	 	 
	ARTICLE VIII            DISCHARGE OF INDENTURE
	 	 	39	 
	SECTION 8.01 Termination of Company’s Obligations
	 	 	39	 
	SECTION 8.02 Application of Trust Money
	 	 	42	 
	SECTION 8.03 Repayment to Company
	 	 	43	 
	SECTION 8.04 Reinstatement
	 	 	43	 
	 
	 	 	 	 
	ARTICLE IX            SUPPLEMENTAL INDENTURES AND AMENDMENTS
	 	 	43	 
	SECTION 9.01 Without Consent of Holders
	 	 	43	 
	SECTION 9.02 With Consent of Holders
	 	 	45	 
	SECTION 9.03 Compliance with Trust Indenture Act
	 	 	46	 
	SECTION 9.04 Revocation and Effect of Consents
	 	 	47	 
	SECTION 9.05 Notation on or Exchange of Securities
	 	 	47	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 9.06 Trustee to Sign Amendments, etc.
	 	 	47	 
	 
	 	 	 	 
	ARTICLE X            SUBORDINATION
	 	 	48	 
	SECTION 10.01 Securities Subordinated to Senior Indebtedness
	 	 	48	 
	SECTION 10.02 No Payment on Securities in Certain Circumstances
	 	 	48	 
	SECTION 10.03 Securities Subordinated to Prior Payment of All Senior Indebtedness on Dissolution, Liquidation or Reorganization
	 	 	49	 
	SECTION 10.04 Subrogation to Rights of Holders of Senior Indebtedness
	 	 	50	 
	SECTION 10.05 Obligations of the Company Unconditional
	 	 	51	 
	SECTION 10.06 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice
	 	 	52	 
	SECTION 10.07 Application by Trustee of Amounts Deposited with It
	 	 	52	 
	SECTION
10.08 Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Indebtedness
	 	 	52	 
	SECTION 10.09 Trustee to Effectuate Subordination of Securities
	 	 	53	 
	SECTION 10.10 Right of Trustee to Hold Senior Indebtedness
	 	 	53	 
	SECTION 10.11 Article X Not to Prevent Events of Default
	 	 	53	 
	SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior Indebtedness
	 	 	53	 
	SECTION 10.13 Article Applicable to Paying Agent
	 	 	54	 
	 
	 	 	 	 
	ARTICLE XI            GUARANTEES
	 	 	54	 
	 
	 	 	 	 
	ARTICLE XII            MISCELLANEOUS
	 	 	54	 
	SECTION 12.01 Trust Indenture Act Controls
	 	 	54	 
	SECTION 12.02 Notices
	 	 	54	 
	SECTION 12.03 Communication by Holders with Other Holders
	 	 	55	 
	SECTION 12.04 Certificate and Opinion as to Conditions Precedent
	 	 	55	 
	SECTION 12.05 Statements Required in Certificate or Opinion
	 	 	56	 
	SECTION 12.06 Rules by Trustee and Agents
	 	 	56	 
	SECTION 12.07 Legal Holidays
	 	 	56	 
	SECTION 12.08 No Recourse Against Others
	 	 	56	 
	SECTION 12.09 Governing Law
	 	 	56	 
	SECTION 12.10 No Adverse Interpretation of Other Agreements
	 	 	57	 
	SECTION 12.11 Successors
	 	 	57	 
	SECTION 12.12 Severability
	 	 	57	 
	SECTION 12.13 Counterpart Originals
	 	 	57	 
	SECTION 12.14 Table of Contents, Headings, etc.
	 	 	57	 






iii









 





          INDENTURE dated as of November 16, 2005 between Encore Acquisition Company, a corporation duly
organized and existing under the laws of the State of Delaware (herein called the “Company”), and
Wells Fargo Bank, National Association, as trustee (herein called the “Trustee”).




          The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its subordinated debentures, notes or other evidences (herein
called the “Securities”), to be issued in one or more series as in this Indenture provided.




          All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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




ARTICLE I



DEFINITIONS AND INCORPORATION BY REFERENCE




SECTION 1.01 Definitions.




          “Additional Amounts” means any additional amounts required by the express terms of a Security
or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto,
to be paid by the Company with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to those Holders.




          “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by, or under direct or indirect common control with, that specified Person. For
purposes of this definition, “control” of a Person shall mean the power to direct the management
and policies of that Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms “controlling” and “controlled” shall have
meanings correlative to the foregoing.



          “Agent” means any Registrar or Paying Agent.




          “Bankruptcy Law” means Title 11 of the United States Code or any similar federal, state or
foreign law for the relief of debtors.




          “Board of Directors” means the Board of Directors of the Company or any committee thereof duly
authorized, with respect to any particular matter, to act by or on behalf of the Board of Directors
of the Company.




          “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of that certification, and delivered to the Trustee.




1









 





          “Business Day” means any day that is not a Legal Holiday.




          “Capital Stock” means, with respect to any corporation, any and all shares, interests, rights
to purchase (other than convertible or exchangeable Indebtedness), warrants, options,
participations or other equivalents of or interests (however designated) in stock issued by that
corporation.




          “Capitalized Lease Obligation” of any Person means any obligation of that Person to pay rent
or other amounts under a lease of property, real or personal, that is required to be capitalized
for financial reporting purposes in accordance with GAAP; and the amount of that obligation shall
be the capitalized amount thereof determined in accordance with GAAP.




          “Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean that successor corporation; provided, however, that
for purposes of any provision contained herein which is required by the TIA, “Company” shall also
mean each other obligor (if any) on the Securities of a series.




          “Company Order” and “Company Request” mean, respectively, a written order or request signed in
the name of the Company by two Officers of the Company, and delivered to the Trustee.




          “Corporate Trust Office” of the Trustee means the office of the Trustee located at 505 Main
Street, Suite 301, Fort Worth, Texas 76102, and as may be located at such other address as the
Trustee may give notice to the Company.




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




          “Depositary” means, with respect to the Securities of any series issuable or issued in whole
or in part in global form, the Person specified pursuant to Section 2.01 hereof as the initial
Depositary with respect to the Securities of that series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture, and thereafter
“Depositary” shall mean or include that successor.




          “Designated Senior Indebtedness,” unless otherwise provided with respect to the Securities of
a series as contemplated by Section 2.01, means any Senior Indebtedness of the Company that (i) in
the instrument evidencing the same or the assumption or guarantee thereof (or related documents to
which the Company is a party) is expressly designated as “Designated Senior Indebtedness” for
purposes of this Indenture and (ii) satisfies such other conditions as may be provided with respect
to the Securities of that series; provided that those instruments or documents may place
limitations and conditions on the right of that Senior Indebtedness to exercise the rights of
Designated Senior Indebtedness.




          “Disqualified Capital Stock” means, when used with respect to the Securities of any series,
(i) except as set forth in (ii), with respect to any Person, Capital Stock of that Person that, by
its terms or by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or on the happening of an event or the passage of time would be, required to be




2









 




redeemed or repurchased (including at the option of the holder thereof) by that Person or any
Subsidiary of that Person, in whole or in part, on or prior to the last Stated Maturity of the
Securities of that series, and (ii) with respect to any Subsidiary of that Person (including with
respect to any Subsidiary of the Company), any Capital Stock other than any common stock with no
preference, privileges, or redemption or repayment provisions.




          “Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and private debt.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor
statute.




          “GAAP” means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession of the United States, as in effect from time to
time.




          “Global Security” of any series means a Security of that Series that is issued in global form
in the name of the Depositary with respect thereto or its nominee.




          “Government Obligations” means, with respect to a series of Securities, direct obligations of
the government that issues the currency in which the Securities of the series are payable for the
payment of which the full faith and credit of that government is pledged, or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of that government,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by that
government.




          “Guarantee” means the guarantee by any guarantor of the obligations under this Indenture.




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




          “Indebtedness” of any Person means, without duplication, (i) all indebtedness of that Person
for borrowed money (whether or not the recourse of the lender is to the whole of the assets of that
Person or only to a portion thereof), (ii) all obligations of that Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of that Person in respect of
letters of credit or other similar instruments (or reimbursement obligations with respect
thereto), other than standby letters of credit, bid or performance bonds and other similar
obligations issued by or for the account of that Person in the ordinary course of business, to the
extent not drawn or, to the extent drawn, if that drawing is reimbursed not later than 30 Business
Days following demand for reimbursement, (iv) all obligations of that Person to pay the deferred
and unpaid purchase price of property or services, except trade payables, advances on contracts
and accrued expenses arising in the ordinary course of business, (v) all Capitalized Lease
Obligations of that Person, (vi) all Indebtedness of others secured by a Lien on any asset of that




3









 




Person, whether or not that Indebtedness is assumed by that Person (provided that if the
obligations so secured have not been assumed in full by that Person or are not otherwise that
Person’s legal liability in full, then those obligations shall be deemed to be in an amount equal
to the greater of (a) the lesser of (1) the full amount of those obligations and (2) the fair
market value of those assets, as determined in good faith by the board of directors or other
managing body of that Person and (b) the amount of obligations as have been assumed by that Person
or which are otherwise that Person’s legal liability), and (vii) all guarantees by that Person of
or with respect to Indebtedness of others (other than endorsements in the ordinary course of
business), in each case to the extent of the Indebtedness guaranteed.




          “Indenture” means this Indenture as amended or supplemented from time to time pursuant to the
provisions hereof, and includes the terms of a particular series of Securities established as
contemplated by Section 2.01.




          “interest” means, with respect to an Original Issue Discount Security that by its terms bears
interest only after Maturity, interest payable after Maturity.




          “Interest Payment Date,” when used with respect to any Security, shall have the meaning
assigned to that term in the Security as contemplated by Section 2.01.




          “Issue Date” means, with respect to Securities of a series, the date on which the Securities
of that series are originally issued under this Indenture.




          “Junior security” of a Person means, when used with respect to the Securities of any series,
any Qualified Capital Stock of that Person or any Indebtedness of that Person that is subordinated
in right of payment to Senior Indebtedness of the Company to substantially the same extent as, or
to a greater extent than, the Securities of that series and has no scheduled installment of
principal due, by redemption, sinking fund payment or otherwise, on or prior to the last Stated
Maturity of the Securities of that series.




          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in any of
The City of New York, New York, Fort Worth, Texas or a Place of Payment are authorized or obligated
by law, regulation or executive order to remain closed.




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




          “Officer” means the Chairman of the Board, the President, any Vice Chairman of the Board, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Assistant Secretary of a Person.




          “Officers’ Certificate” means a certificate signed by two Officers of a Person.




          “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable
to the Trustee. That counsel may be an employee of or counsel to the Company or the Trustee.




4









 





          “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable on a declaration of acceleration of the Maturity
thereof pursuant to Section 6.02.




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




          “Place of Payment” means, with respect to the Securities of any series, the place or places
where, subject to the provisions of Section 4.02, the principal of, premium (if any) on and
interest on the Securities of that series are payable as specified in accordance with Section 2.01.




          “principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.




          “Qualified Capital Stock” means any Capital Stock of the Company that is not Disqualified
Capital Stock.




          “Redemption Date” means, with respect to any Security to be redeemed, the date fixed for that
redemption by or pursuant to this Indenture.




          “Redemption Price” means, with respect to any Security to be redeemed, the price at which it
is to be redeemed pursuant to this Indenture.




          “Rule 144A Securities” means Securities of a series designated pursuant to Section 2.01 as
entitled to the benefits of Section 4.03(b).




          “SEC” means the Securities and Exchange Commission.




          “Securities” has the meaning stated in the preamble of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.




          “Security Custodian” means, with respect to Securities of a series issued in global form, the
Trustee for Securities of that series, as custodian with respect to the Securities of that series,
or any successor entity thereto.




          “Senior Indebtedness” of the Company, unless otherwise provided with respect to the Securities
of a series as contemplated by Section 2.01, means (i) the principal of and premium, if any, and
interest on (including interest accruing or becoming owing prior to or subsequent to the
commencement of any proceeding against or with respect to the Company under any bankruptcy law) and
other amounts due on or in connection with any Indebtedness of the Company, whether currently
outstanding or hereafter incurred, issued or assumed, unless, by
the terms of the instrument creating or evidencing that Indebtedness, it is provided that such
Indebtedness is not superior in right of payment to the Securities or to other Indebtedness which
is pari passu with or subordinated to the Securities, and (ii) any modifications, refunding,
deferrals, renewals or extensions of any such Indebtedness or securities, notes or other evidences




5









 




of Indebtedness issued in exchange for that Indebtedness; provided that in no event shall “Senior
Indebtedness” of the Company include Indebtedness of the Company for borrowed money owed or owing
to any Subsidiary of the Company or any executive officer or director of the Company.




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




          “Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock”
means stock that ordinarily has voting power for the election of directors, whether at all times or
only so long as no senior class of stock has that voting power by reason of any contingency.




          “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb), as in
effect on the date hereof.




          “Trust Officer” means any officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.




          “Trustee” means the Person named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture, and thereafter “Trustee” means each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used
with respect to the Securities of any series means the Trustee with respect to Securities of that
series.




          “United States” means the United States of America (including the States and the District of
Columbia) and its territories and possessions (including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands).




          “United States Alien” means any Person who, for United States federal income tax purposes, is
a foreign corporation, a nonresident alien individual, a nonresident alien or foreign fiduciary of
an estate or trust, or a foreign partnership.




          “U.S. Government Obligations” means Government Obligations with respect to Securities payable
in Dollars.




SECTION 1.02 Other Definitions.




	 	 	 
	 	 	Defined
	Defined Term	 	in Section
	“Bankruptcy Custodian”
	 	6.01
	“Conversion Event”
	 	6.01
	“covenant defeasance”
	 	8.01
	“Event of Default”
	 	6.01






6









 






	 	 	 
	 	 	Defined
	Defined Term	 	in Section
	“Exchange Rate”
	 	2.11
	“Judgment Currency”
	 	6.10
	“legal defeasance”
	 	8.01
	“mandatory sinking fund payment”
	 	3.09
	“optional sinking fund payment”.
	 	3.09
	“Paying Agent”
	 	2.05
	“Payment Default”
	 	10.02
	“Payment Blocking Notice”
	 	10.02
	“Registrar”
	 	2.05
	“Required Currency”
	 	6.10
	“Successor”
	 	5.01






SECTION 1.03 Incorporation by Reference of Trust Indenture Act.




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





     “Commission” means the SEC.




     “indenture securities” means the Securities.




     “indenture security holder” means a Holder.




     “indenture to be qualified” means this Indenture.




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




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



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




SECTION 1.04 Rules of Construction.




          Unless the context otherwise requires:





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




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




     (3) “or” is not exclusive;




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



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




     (6) all references in this instrument to Articles and Sections are references to the
corresponding Articles and Sections in and of this instrument.



ARTICLE II



THE SECURITIES




SECTION 2.01 Amount Unlimited; Issuable in Series.




          The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.




          The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in a manner provided, in an Officers’
Certificate or in a Company Order, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:





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




     (2) if there is to be a limit, the limit on the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered on registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09,
2.12, 2.17, 3.07 or 9.05 and except for any Securities that, pursuant to Section 2.04 or
2.17, are deemed never to have been authenticated and delivered hereunder); provided,
however, that unless otherwise provided in the terms of the series, the authorized aggregate
principal amount of that series may be increased before or after the issuance of any
Securities of the series by a Board Resolution (or action pursuant to a Board Resolution) to
that effect;




     (3) whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in
permanent global form, as Global Securities or otherwise, and, if so, whether
beneficial owners of interests in any such Global Security may exchange those interests for
Securities of that series and of like tenor of any authorized form and denomination and the
circumstances under which those exchanges may occur, if other than in the manner provided in
Section 2.17, and the initial Depositary and Security Custodian, if any, for any Global
Security or Securities of that series;




     (4) (i) if other than provided herein, the Person to whom any interest on Securities
of the series shall be payable, and (ii) the manner in which any interest payable on a
temporary Global Security on any Interest Payment Date will be paid if other than in the
manner provided in Section 2.14;




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



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     (6) the rate or rates, or the method of determination thereof, at which the Securities
of the series shall bear interest, if any, whether and under what circumstances Additional
Amounts with respect to those Securities shall be payable, the date or dates from which that
interest shall accrue, the Interest Payment Dates on which that interest shall be payable
and the record date for the interest payable on any Securities on any Interest Payment Date;




     (7) the place or places where, subject to the provisions of Section 4.02, the principal
of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of the series shall be payable;




     (8) the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions on which Securities of
the series may be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company may exercise any such
option, if different from those set forth herein;




     (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 period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions on which Securities of
the series shall be redeemed, purchased or repaid in whole or in part pursuant to that
obligation;




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




     (11) if other than Dollars, the currency or currencies (including composite currencies)
or the form, including equity securities, other debt securities (including Securities),
warrants or any other securities or property of the Company or any other Person, in which
payment of the principal of, premium (if any) and interest on and any Additional Amounts
with respect to the Securities of the series shall be payable;




     (12) if the principal of, premium (if any) or interest on or any Additional Amounts
with respect to the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including composite currencies)
other than that in which the Securities are stated to be payable, the currency or currencies
(including composite currencies) in which payment of the principal, premium (if any),
interest and any Additional Amounts with respect to Securities of that series as to which
that election is made shall be payable, and the periods within which and the terms and
conditions on which that election is to be made;




     (13) if the amount of payments of principal, premium (if any), interest and any
Additional Amounts with respect to the Securities of the series may be determined with
reference to any commodities, currencies or indices, values, rates or prices or any other
index or formula, the manner in which those amounts shall be determined;



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     (14) if other than the entire principal amount thereof, the portion of the principal
amount of Securities of the series that shall be payable on declaration of acceleration of
the Maturity thereof pursuant to Section 6.02;




     (15) any additional means of satisfaction and discharge of this Indenture and any
additional conditions or limitations to discharge with respect to Securities of the series
pursuant to Article VIII or any modifications of or deletions from those conditions or
limitations;




     (16) any deletions or modifications of or additions to the Events of Default set forth
in Section 6.01 or covenants of the Company set forth in Article IV pertaining to the
Securities of the series;




     (17) any restrictions or other provisions with respect to the transfer or exchange of
Securities of the series, which may amend, supplement, modify or supersede those contained
in this Article II;




     (18) if the Securities of the series are to be convertible into or exchangeable for
Capital Stock, other debt securities (including Securities), warrants, other equity
securities or any other securities or property of the Company or any other Person, at the
option of the Company or the Holder or on the occurrence of any condition or event, the
terms and conditions for that conversion or exchange;




     (19) if the Securities of the series shall have the benefits of any Guarantee and, if
so, the identity of the guarantor or guarantors and the terms and provisions applicable to
any such Guarantee;




     (20) if the Securities of the series are to be entitled to the benefit of Section
4.03(b) (and accordingly constitute Rule 144A Securities);




     (21) any modifications to, or qualifications contemplated by, the definition of
“Designated Senior Indebtedness,” any modifications to the definition of “Senior
Indebtedness” of the Company or any modifications to Article X or the other provisions
regarding subordination with respect to the Securities of that series; and




     (22) any other terms of the series (which terms shall not be prohibited by the
provisions of this Indenture).



          All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 2.03) set forth, or determined in the manner provided, in the Officers’
Certificate or Company Order referred to above or in any such indenture supplemental hereto.




          If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of that action together with that Board Resolution
shall be set forth in an Officers’ Certificate or certified by the Secretary or an




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Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’
Certificate or Company Order setting forth the terms of the series.




          The Securities shall be subordinated in right of payment to Senior Indebtedness of the Company
as provided in Article X.




SECTION 2.02 Denominations.




     The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 2.01. In the absence of any such provisions with respect to the Securities
of any series, the Securities of that series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.



SECTION 2.03 Forms Generally.




          The Securities of each series shall be in fully registered form and in substantially the form
or forms (including temporary or permanent global form) established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto. The Securities may have notations,
legends or endorsements required by law, securities exchange rule, the Company’s certificate of
incorporation, bylaws or other similar governing documents, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). A copy of the Board Resolution establishing the form or forms of
Securities of any series shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.04 for the authentication and delivery of those Securities.




          The definitive Securities of each series 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 those Securities, as evidenced by their execution thereof.




          The Trustee’s certificate of authentication shall be in substantially the following form:





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



	 	 	 	 	 
	 	 	Wells Fargo Bank, National Association, as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Officer”.






SECTION 2.04 Execution, Authentication, Delivery and Dating.




          Two Officers of the Company shall sign the Securities of each series on behalf of the Company
by manual or facsimile signature. The Company’s seal, if any, shall be impressed, affixed,
imprinted or reproduced on the Securities and may be in facsimile form.




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




          A Security shall not be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose until authenticated by the manual signature of an authorized signatory of the
Trustee, which signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. Notwithstanding the foregoing, if any Security has been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company delivers that
Security to the Trustee for cancellation as provided in Section 2.13 together with a written
statement (which need not comply with Section 12.05 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the Company, for all purposes
of this Indenture that Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.




          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, and the Trustee shall authenticate and deliver those Securities for original issue
on a Company Order for the authentication and delivery of those Securities or pursuant to such
procedures reasonably acceptable to the Trustee as may be specified from time to time by Company
Order. That order shall specify the amount of the Securities to be authenticated, the date on
which the original issue of Securities is to be authenticated, the name or names of the initial
Holder or Holders and any other terms of the Securities of that series not otherwise determined.
If provided for in those procedures, that Company Order may authorize (1) authentication and
delivery of Securities of that series for original issue from time to time, with certain terms
(including, without limitation, the Maturity date or dates, original issue date or dates and
interest rate or rates) that differ from Security to Security and (2) may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized
agent, which instructions shall be promptly confirmed in writing.




          If the form or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Section 2.01, in authenticating those
Securities, and accepting the additional responsibilities under this Indenture in relation to
those Securities, the Trustee shall be entitled to receive (in addition to the Company Order
referred to above and the other documents required by Section 12.04), and (subject to Section 7.01)
shall be fully protected in relying on,





     (a) an Officers’ Certificate setting forth the Board Resolution and, if applicable, an
appropriate record of any action taken pursuant thereto, as contemplated by the second to
last paragraph of Section 2.01; and




     (b) an Opinion of Counsel to the effect that:




          (i) if the form of those Securities has been established by or pursuant to
Board Resolution, as is permitted by Section 2.01, that such form has been
established in conformity with the provisions of this Indenture;



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          (ii) if the terms of those Securities have been established by or pursuant to
Board Resolution, as is permitted by Section 2.01, that such terms have been
established in conformity with the provisions of this Indenture; and




          (iii) those Securities, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in that
Opinion of Counsel, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws in effect
from time to time affecting the rights of creditors generally, and the application
of general principles of equity (regardless of whether that enforceability is
considered in a proceeding in equity or at law).



          If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers’ Certificate and Opinion of Counsel at the time of issuance of
each such Security, but that Officers’ Certificate and Opinion of Counsel shall be delivered at or
before the time of issuance of the first Security of the series to be issued.




          The Trustee shall not be required to authenticate those Securities if the issuance of those
Securities pursuant to this Indenture would affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.




          The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of that appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by that agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate of the Company.




          Each Security shall be dated the date of its authentication.




SECTION 2.05 Registrar and Paying Agent.




          The Company shall maintain an office or agency for each series of Securities where Securities
of that series may be presented for registration of transfer or exchange (“Registrar”) and an
office or agency where Securities of that series may be presented for payment (“Paying Agent”).
The Registrar shall keep a register of the Securities of that series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any
additional paying agent.




          The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to that Agent. The Company shall notify the Trustee of the name and address
of any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or




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maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.




          The Company initially appoints the Trustee as Registrar and Paying Agent.




SECTION 2.06 Paying Agent to Hold Money in Trust.




          With respect to each series of Securities, the Company shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders of Securities of that series or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on or any Additional Amounts with respect to
Securities of that series and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed, the
Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further
liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent with
respect to a series of Securities, it shall segregate and hold in a separate trust fund for the
benefit of the Holders of Securities of that series all money held by it as Paying Agent. Each
Paying Agent shall otherwise comply with TIA § 317(b).




SECTION 2.07 Holder Lists.




          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of each series of Securities and shall
otherwise comply with TIA § 312(a). If the Trustee is not the Registrar with respect to
a series of Securities, the Company shall furnish to the Trustee at least five Business Days
before each Interest Payment Date with respect to that series of Securities, and at such other
times as the Trustee may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of the Securities of that series, and
the Company shall otherwise comply with TIA § 312(a).




SECTION 2.08 Transfer and Exchange.




          Except as set forth in Section 2.17 or as may be provided pursuant to Section 2.01, when
Securities of any series are presented to the Registrar with the request to register the transfer
of those Securities or to exchange those Securities for an equal principal amount of Securities of
the same series of like tenor and of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements and the requirements of this
Indenture for those transactions are met; provided, however, that the Securities presented or
surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form reasonably satisfactory to the Registrar duly executed by
the Holder thereof or by his attorney, duly authorized in writing, on which instruction the
Registrar can rely.




          To permit registrations of transfers and exchanges, the Company shall execute and the Trustee
shall authenticate Securities at the Registrar’s written request and submission of




14









 




the Securities
(other than Global Securities). No service charge shall be made to a Holder for any registration
of transfer or exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than such transfer tax or similar governmental charge
payable on exchanges pursuant to Section 2.12, 3.07 or 9.05). The Trustee shall authenticate
Securities in accordance with the provisions of Section 2.04. Notwithstanding any other provisions
of this Indenture to the contrary, the Company shall not be required to register the transfer or
exchange of (a) any Security selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Security being redeemed in part or (b) any Security during the
period beginning 15 Business Days before the mailing of notice of any offer to repurchase
Securities of the series required pursuant to the terms thereof or of redemption of Securities of a
series to be redeemed and ending at the close of business on the date of mailing.




SECTION 2.09 Replacement Securities.




          If any mutilated Security is surrendered to the Trustee, or if the Holder of a Security claims
that the Security has been destroyed, lost or stolen and the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of that Security, the Company
shall issue and the Trustee shall authenticate a replacement Security of the same series if the
Trustee’s requirements are met. If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay that Security. If required by the Trustee or the Company, the
Holder must furnish an indemnity bond that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent or any authenticating agent from any loss
that any of them may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.




          Every replacement Security is an additional obligation of the Company.




SECTION 2.10 Outstanding Securities.




          The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest in a Global Security effected by the Trustee hereunder and those described in this Section
2.10 as not outstanding.




          If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.




          If the principal amount of any Security is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.




          A Security does not cease to be outstanding because the Company or an Affiliate of the Company
holds the Security.




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SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury Securities.




          In determining whether the Holders of the required principal amount of Securities have
concurred in any direction, amendment, supplement, waiver or consent, (a) the principal amount of
an Original Issue Discount Security shall be the principal amount thereof that would be due and
payable as of the date of that determination upon acceleration of the Maturity thereof pursuant to
Section 6.02, (b) the principal amount of a Security denominated in a foreign currency shall be the
Dollar equivalent, as determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for that currency, as that rate is certified for customs purposes by
the Federal Reserve Bank of New York (the “Exchange Rate”) on the date of original issuance of that
Security, of the principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent, as determined by the Company by reference to the Exchange Rate on the date of
original issuance of that Security, of the amount determined as provided in (a) above), of that
Security and (c) Securities owned by the Company or any other obligor on the Securities or any
Affiliate of the Company or of that other obligor shall be disregarded, except that, for the
purpose of determining whether the Trustee shall be protected in relying on any such direction,
amendment, supplement, waiver or consent, only Securities that the Trustee actually knows are so
owned shall be so disregarded.




SECTION 2.12 Temporary Securities.




          Until definitive Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in exchange for temporary Securities. Until
so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities.




SECTION 2.13 Cancellation.




          The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange, payment or redemption or for credit against any sinking fund
payment. The Trustee shall cancel all Securities surrendered for registration of transfer,
exchange, payment, redemption, replacement or cancellation or for credit against any sinking fund.
Unless the Company shall direct in writing that canceled Securities be returned to it, after
written notice to the Company all canceled Securities held by the Trustee shall be disposed of in
accordance with the usual disposal procedures of the Trustee, and the Trustee shall maintain a
record of their disposal. The Company may not issue new Securities to replace Securities that have
been paid or that have been delivered to the Trustee for cancellation.




SECTION 2.14 Payments; Defaulted Interest.




          Unless otherwise provided as contemplated by Section 2.01 with respect to the Securities of
any series, interest (except defaulted interest) on any Security that is payable, and is




16









 





punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the Persons who are
registered Holders of that Security at the close of business on the record date next preceding that
Interest Payment Date, even if those Securities are canceled after that record date and on or
before that Interest Payment Date. Unless otherwise provided with respect to the Securities of any
series, the Company will pay the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities in Dollars. Those amounts shall be payable at the offices
of the Trustee, provided that at the option of the Company, the Company may pay those amounts (1)
by wire transfer with respect to Global Securities or (2) by check payable in that money mailed to
a Holder’s registered address with respect to any Securities.




          If the Company defaults in a payment of interest on the Securities of any series, it shall pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest on the defaulted
interest, in each case at the rate provided in the Securities of that series and in Section 4.01.
The Company may pay the defaulted interest to the Persons who are Holders on a subsequent special
record date. At least 15 days before any special record date selected by the
Company, the Company (or the Trustee, in the name of and at the expense of the Company upon 20
days’ prior written notice from the Company setting forth that record date and the interest amount
to be paid) shall mail to Holders of any such series of Securities a notice that states the special
record date, the related payment date and the amount of that interest to be paid.




SECTION 2.15 Persons Deemed Owners.




          The Company, the Trustee, any Agent and any authenticating agent may treat the Person in whose
name any Security is registered as the owner of that Security for the purpose of receiving payments
of principal of, premium (if any) or interest on, or any Additional Amounts with respect to that
Security and for all other purposes. None of the Company, the Trustee, any Agent or any
authenticating agent shall be affected by any notice to the contrary.




SECTION 2.16 Computation of Interest.




          Except as otherwise specified as contemplated by Section 2.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year comprising
twelve 30-day months.




SECTION 2.17 Global Securities; Book-Entry Provisions.




          If Securities of a series are issuable in global form as a Global Security, as contemplated by
Section 2.01, then, notwithstanding clause (10) of Section 2.01 and the provisions of Section 2.02,
any such Global Security shall represent those of the outstanding Securities of that series as
shall be specified therein and may provide that it shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon and that the aggregate amount of
outstanding Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges or redemptions. Any endorsement of a Global Security to reflect
the amount, or any increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee (i) in such manner and upon instructions given by such Person
or Persons as shall be specified in that Security or in a Company Order to be delivered to the
Trustee pursuant to Section 2.04 or (ii) otherwise in




17









 




accordance with written instructions or such
other written form of instructions as is customary for the Depositary for that Security, from that
Depositary or its nominee on behalf of any Person having a beneficial interest in that Global
Security. Subject to the provisions of Section 2.04 and, if applicable, Section 2.12, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified in that Security or in the applicable Company
Order. With respect to the Securities of any series that are represented by a Global Security, the
Company authorizes the execution and delivery by the Trustee of a letter of representations or
other similar agreement or instrument in the form customarily provided for by the Depositary
appointed with respect to that Global Security. Any Global Security may be deposited with the
Depositary or its nominee, or may remain in the
custody of the Trustee or the Security Custodian therefor pursuant to a FAST Balance
Certificate Agreement or similar agreement between the Trustee and the Depositary. If a Company
Order has been, or simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in writing but need not
comply with Section 12.05 and need not be accompanied by an Opinion of Counsel.




          Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary, or the
Trustee or the Security Custodian as its custodian, or under that Global Security, and the
Depositary may be treated by the Company, the Trustee or the Security Custodian and any agent of
the Company, the Trustee or the Security Custodian as the absolute owner of that Global Security
for all purposes whatsoever. Notwithstanding the foregoing, (i) the registered holder of a Global
Security of any series may grant proxies and otherwise authorize any Person, including Agent
Members and Persons that may hold interests through Agent Members, to take any action that a Holder
of Securities of that series is entitled to take under this Indenture or the Securities of that
series and (ii) nothing herein shall prevent the Company, the Trustee or the Security Custodian or
any agent of the Company, the Trustee, or the Security Custodian from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or shall impair, as between
the Depositary and its Agent Members, the operation of customary practices governing the exercise
of the rights of a beneficial owner of any Security.




          Notwithstanding Section 2.08, and except as otherwise provided pursuant to Section 2.01,
transfers of a Global Security shall be limited to transfers of that Global Security in whole, but
not in part, to the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities of any series shall be transferred to all beneficial
owners of a Global Security of that series in exchange for their beneficial interests in that
Global Security if, and only if, either (1) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for that Global Security and a successor Depositary
is not appointed by the Company within 90 days of that notice, (2) an Event of Default has occurred
with respect to that series and is continuing and the Registrar has received a request from the
Depositary to issue Securities of that series in lieu of all or a portion of that Global Security
(in which case the Company shall deliver Securities of that series within 30 days of that request)
or (3) the Company determines not to have the Securities of that series represented by a Global
Security.




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          In connection with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to this Section 2.17, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Security in an amount equal
to the principal amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee on receipt of a Company Order for the authentication and
delivery of Securities shall authenticate and deliver, one or more Securities of the same series of
like tenor and amount.




          In connection with the transfer of all the beneficial interests in a Global Security of any
series to beneficial owners pursuant to this Section 2.17, the Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the Global Security, an equal aggregate principal amount
of Securities of that series of authorized denominations.




          Neither the Company nor the Trustee will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, Securities by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating to those Securities.
Neither the Company nor the Trustee shall be liable for any delay by the related Global Security
Holder or the Depositary in identifying the beneficial owners, and each such Person may
conclusively rely on, and shall be protected in relying on, instructions from that Global Security
Holder or the Depositary for all purposes (including with respect to the registration and delivery,
and the respective principal amounts, of the Securities to be issued).




          The provisions of the last sentence of the third paragraph of Section 2.04 shall apply to any
Global Security if that Global Security was never issued and sold by the Company and the Company
delivers to the Trustee the Global Security together with written instructions (which need not
comply with Section 12.05 and need not be accompanied by an Opinion of Counsel) with regard to the
cancellation or reduction in the principal amount of Securities represented thereby, together with
the written statement contemplated by the last sentence of the third paragraph of Section 2.04.




          Notwithstanding the provisions of Sections 2.03 and 2.14, unless otherwise specified as
contemplated by Section 2.01 with respect to Securities of any series, payment of principal of and
premium (if any) and interest on and any Additional Amounts with respect to any Global Security
shall be made to the Person or Persons specified therein.




ARTICLE III



REDEMPTION




SECTION 3.01 Applicability of Article.




     Securities of any series that are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01
for Securities of any series) in accordance with this Article III.



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SECTION 3.02 Notice to the Trustee.




          If the Company elects to redeem Securities of any series pursuant to this Indenture, it shall
notify the Trustee of the Redemption Date and principal amount of Securities of that series to be
redeemed. The Company shall so notify the Trustee at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) by delivering to the Trustee an
Officers’ Certificate stating that the redemption will comply with the provisions of this Indenture
and of the Securities of that series. Any such notice may be canceled at any time
prior to the mailing of that notice of redemption to any Holder of the Securities of that
series and shall thereupon be void and of no effect.




     SECTION 3.03 Selection of Securities To Be Redeemed.



          If less than all the Securities of any series are to be redeemed (unless all of the Securities
of that series of a specified tenor are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the
outstanding Securities of that series (and tenor) not previously called for redemption, either pro
rata, by lot or by such other method as the Trustee shall deem fair and appropriate. That
redemption may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple thereof) of the
principal amount of Securities of that series of a denomination larger than the minimum authorized
denomination for Securities of that series or of the principal amount of Global Securities of that
series.




          The Trustee shall promptly notify the Company and the Registrar in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.




          For purposes of this Indenture, unless the context otherwise requires, all provisions relating
to redemption of Securities of any series shall relate, in the case of any of the Securities
redeemed or to be redeemed only in part, to the portion of the principal amount thereof which has
been or is to be redeemed.




SECTION 3.04 Notice of Redemption.




          Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities of a series to
be redeemed, at the address of that Holder appearing in the register of Securities for that series
maintained by the Registrar.




          All notices of redemption shall identify the Securities to be redeemed and shall state:





     (1) the Redemption Date;




     (2) the Redemption Price;



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     (3) that, unless the Company defaults in making the redemption payment, interest on
Securities called for redemption ceases to accrue on and after the Redemption Date, and the
only remaining right of the Holders of those Securities is to receive payment of the
Redemption Price on surrender to the Paying Agent of the Securities redeemed;




     (4) if any Security is to be redeemed in part, the portion of the principal amount
thereof to be redeemed and that on and after the Redemption Date, on surrender for
cancellation of that Security to the Paying Agent, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be issued without
charge to the Holder;




     (5) that Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price and the name and address of the Paying Agent;




     (6) that the redemption is for a sinking or analogous fund, if that is the case; and




     (7) the CUSIP number, if any, relating to those Securities.



          Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s written request, by the Trustee in the name and at the
expense of the Company.




SECTION 3.05 Effect of Notice of Redemption.




          Once notice of redemption is mailed, Securities called for redemption become due and payable
on the Redemption Date and at the Redemption Price. Upon surrender to the Paying Agent, those
Securities called for redemption shall be paid at the Redemption Price, but interest installments
whose maturity is on or prior to that Redemption Date will be payable on the relevant Interest
Payment Dates to the Holders of record at the close of business on the relevant record dates
specified pursuant to Section 2.01.




SECTION 3.06 Deposit of Redemption Price.




          On or prior to any Redemption Date, the Company shall deposit with the Trustee or the Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.06) an amount of money in same day funds sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on
and any Additional Amounts with respect to, the Securities or portions thereof which are to be
redeemed on that date, other than Securities or portions thereof called for redemption on that date
which have been delivered by the Company to the Trustee for cancellation.




          If the Company complies with the preceding paragraph, then, unless the Company defaults in the
payment of that Redemption Price, interest on the Securities to be redeemed will cease to accrue on
and after the applicable Redemption Date, whether or not those Securities are presented for
payment, and the Holders of those Securities shall have no further rights with






21









 







respect to those
Securities except for the right to receive the Redemption Price on surrender of those Securities.
If any Security called for redemption shall not be so paid on surrender thereof
for redemption, the principal of and premium, if any, any Additional Amounts, and, to the
extent lawful, accrued interest thereon shall, until paid, bear interest from the Redemption Date
at the rate specified pursuant to Section 2.01 or provided in the Securities or, in the case of
Original Issue Discount Securities, their initial yield to maturity.




SECTION 3.07 Securities Redeemed or Purchased in Part.




          Upon surrender to the Paying Agent of a Security to be redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of that Security without
service charge a new Security or Securities, of the same series and of any authorized denomination
as requested by that Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Security so surrendered that is not redeemed.




SECTION 3.08 Purchase of Securities.




          Unless otherwise specified as contemplated by Section 2.01, the Company and any Affiliate of
the Company may at any time purchase or otherwise acquire Securities in the open market or by
private agreement. Any such acquisition shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by those Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee for cancellation and, on that cancellation,
the indebtedness represented thereby shall be deemed to be satisfied. Section 2.13 shall apply to
all Securities so delivered.




SECTION 3.09 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
the minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment.” Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction as provided in
Section 3.10. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of that series and by this Article III.




SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.




          The Company may deliver outstanding Securities of a series (other than any previously called
for redemption) and may apply as a credit Securities of a series that have been redeemed either at
the election of the Company pursuant to the terms of those Securities or
through the application of permitted optional sinking fund payments pursuant to the terms of
those Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of that series required to be made pursuant to the terms of that series
of Securities; provided that those Securities have not been previously so credited. Those
Securities shall be received and credited for that purpose by the Trustee at the Redemption Price
specified




22









 




in those Securities for redemption through operation of the sinking fund, and the amount
of that sinking fund payment shall be reduced accordingly.




SECTION 3.11 Redemption of Securities for Sinking Fund.




          Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to
each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officers’ Certificate of the Company specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any,
that is to be satisfied by payment of cash and the portion thereof, if any, that is to be satisfied
by delivery of or by crediting Securities of that series pursuant to Section 3.10 and will also
deliver to the Trustee any Securities to be so delivered. Failure of the Company to timely deliver
that Officers’ Certificate and Securities specified in this paragraph, if any, shall not constitute
a default but shall constitute the election of the Company (i) that the mandatory sinking fund
payment for that series due on the next succeeding sinking fund payment date shall be paid entirely
in cash without the option to deliver or credit Securities of that series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to that series as
provided in this Section.




          If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $100,000 (or the Dollar equivalent thereof based on the
applicable Exchange Rate on the date of original issue of the applicable Securities) or a lesser
sum if the Company shall so request with respect to the Securities of any particular series, that
cash shall be applied on the next succeeding sinking fund payment date to the redemption of
Securities of that series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If that amount shall be $100,000 (or the Dollar equivalent thereof
as aforesaid) 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 Dollar equivalent thereof as aforesaid) is available. Not less
than 30 days before each such sinking fund payment date, the Trustee shall select the Securities to
be redeemed on that sinking fund payment date in the manner specified in Section 3.03 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 3.04. That notice having been duly given, the redemption of those
Securities shall be made on the terms and in the manner stated in Sections 3.05, 3.06 and 3.07.




ARTICLE IV



COVENANTS




SECTION 4.01 Payment of Securities.




          The Company shall pay the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities of each series on the dates and in the manner provided in
the Securities of that series and in this Indenture. Principal, premium, interest and any
Additional Amounts shall be considered paid on the date due if the Paying Agent, other than the
Company or a Subsidiary of the Company, holds on that date money deposited by the




23









 




Company
designated for and sufficient to pay all principal, premium (if any), interest and any Additional
Amounts then due.




          The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal of and premium (if any) on Securities of any series, at a rate
equal to the then applicable interest rate on the Securities of that series to the extent lawful;
and it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest on and any overdue payments of Additional Amounts with
respect to Securities of that series (without regard to any applicable grace period) at the same
rate to the extent lawful.




SECTION 4.02 Maintenance of Office or Agency.




          The Company will maintain in each Place of Payment for any series of Securities an office or
agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities
of that series may be presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or on the Company in respect
of the Securities of that series and this Indenture may be served. Unless otherwise designated by
the Company by written notice to the Trustee, that office or agency shall be the office of the
Trustee in Fort Worth, Texas, which on the date hereof is located at 505 Main Street, Suite 301,
Fort Worth, Texas 76102. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of that office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, those presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.




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




SECTION 4.03 SEC Reports; Financial Statements.





     (a) The Company shall file with the Trustee, within 15 days after it files the same
with the SEC, copies of the annual reports and the information, documents and other reports
(or copies of those portions of any of the foregoing as the SEC may by rules and regulations
prescribe) that the Company is required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. The Company shall also comply with the provisions of TIA § 314(a).




     (b) If the Company is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall furnish to all Holders of Rule 144A Securities and
prospective purchasers of Rule 144A Securities designated by the Holders of Rule 144A



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Securities, promptly on their request, the information required to be delivered pursuant to
Rule 144A(d)(4) promulgated under the Securities Act of 1933, as amended.



SECTION 4.04 Compliance Certificate.





     (a) The Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, a statement signed by an Officer of the Company, which need not
constitute an Officers’ Certificate, complying with TIA § 314(a)(4) and stating that, in the
course of performance by the signing Officer of the Company of his or her duties as such
Officer of the Company, he or she would normally obtain knowledge of the keeping, observing,
performing and fulfilling by the Company of its obligations under this Indenture, and
further stating that, to the best of his or her knowledge, the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which that Officer may have knowledge and what action the
Company is taking or proposes to take with respect thereto).




     (b) The Company shall, so long as Securities of any series are outstanding, deliver to
the Trustee, promptly on any Officer of the Company becoming aware of any Default or Event
of Default under this Indenture, an Officers’ Certificate specifying that Default or Event
of Default and what action the Company is taking or proposes to take with respect thereto.



SECTION 4.05 Existence.




          Subject to Article V hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of each of its
Subsidiaries and all rights (charter and statutory) of the Company and its Subsidiaries,
provided that the Company shall not be required to preserve the existence of any Subsidiary of
the Company or any such right if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a
whole and that the loss thereof would not have a material adverse effect on the business,
operations, assets or financial condition of the Company and its Subsidiaries taken as a whole and
would not have any material adverse effect on the payment and performance of the obligations of the
Company under the Securities and this Indenture.




SECTION 4.06 Waiver of Stay, Extension or Usury Laws.




          The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist on, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such




25









 




law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.




SECTION 4.07 Additional Amounts.




          If the Securities of a series expressly provide for the payment of Additional Amounts, the
Company will pay to the Holder of any Security of that series Additional Amounts as expressly
provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series, that mention shall
be deemed to include mention of the payment of Additional Amounts provided for in this Section 4.07
to the extent that, in that context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section 4.07, 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 that express mention is not made.




          Unless otherwise provided pursuant to Section 2.01 with respect to Securities of any series,
if the Securities of a series provide for the payment of Additional Amounts, at least ten days
prior to the first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least ten days prior to each date of payment
of principal and any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers’ Certificate, the Company shall furnish the Trustee and
the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’
Certificate instructing the Trustee and such Paying Agent or Paying Agents whether that
payment of principal of and any premium or interest on the Securities of that series shall be made
to Holders of Securities of that series who are United States Aliens 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 that Officers’ Certificate shall specify
by country the amount, if any, required to be withheld on those payments to those Holders of
Securities, and the Company will pay to that Paying Agent the Additional Amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent for and to hold them
harmless against any loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers’ Certificate furnished pursuant to this Section 4.07.




ARTICLE V



SUCCESSORS




SECTION 5.01 Limitations on Mergers, Consolidations and Other Transactions.




          The Company shall not, in any transaction or series of related transactions, consolidate with
any other Person into, or merge into, any other Person, or sell, lease, convey, transfer or
otherwise dispose of its assets substantially as an entirety to any Person, unless:





26









 









     (1) the Person formed by that consolidation or into which the Company is merged, or to
which that sale, lease, conveyance, transfer or other disposition shall be made
(collectively, the “Successor”), expressly assumes by supplemental indenture the due and
punctual payment of the principal of (and premium, if any) and interest on and Additional
Amounts with respect to all the Securities and the performance of the Company’s covenants
and obligations under this Indenture and the Securities;




     (2) immediately after giving effect to that transaction or series of related
transactions, no Default or Event of Default shall have occurred and be continuing; and




     (3) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that the transaction and that supplemental indenture comply with this
Indenture.



SECTION 5.02 Successor Person Substituted.




          Upon any consolidation or merger of the Company or any sale, lease, conveyance, transfer or
other disposition of the assets of the Company substantially as an entirety in accordance with
Section 5.01, any Successor formed by that consolidation or into or with which the Company is
merged or to which that sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of the Company under
this Indenture and the Securities with the same effect as if that Successor had been named as the
Company herein and the predecessor Company, in the case of a sale,
conveyance, transfer or other disposition, shall be released from all obligations under this
Indenture and the Securities.




ARTICLE VI



DEFAULTS AND REMEDIES




SECTION 6.01 Events of Default.




          Unless either inapplicable to a particular series or specifically deleted or modified in or
pursuant to the supplemental indenture or Board Resolution establishing that series of Securities
or in the form of Security for that series, an “Event of Default,” wherever used herein with
respect to Securities of any series, occurs if:





     (1) the Company defaults in the payment of interest on or any Additional Amounts with
respect to any Security of that series when the same becomes due and payable and that
default continues for a period of 30 days;




     (2) the Company defaults in the payment of (A) the principal of any Security of that
series at its Maturity or (B) premium (if any) on any Security of that series when the same
becomes due and payable;




     (3) the Company defaults in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series, and that default continues for a period of 30 days;



27









 






     (4) the Company fails to comply with any of its other covenants or agreements in, or
provisions of, the Securities of that series or this Indenture (other than an agreement,
covenant or provision that has expressly been included in this Indenture solely for the
benefit of one or more series of Securities other than that series) which shall not have
been remedied within the specified period after written notice, as specified in the last
paragraph of this Section 6.01;




     (5) the Company pursuant to or within the meaning of any Bankruptcy Law:




          (A) commences a voluntary case,




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




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




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




     (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that remains unstayed and in effect for 90 days and that:




          (A) is for relief against the Company as debtor in an involuntary case,




          (B) appoints a Bankruptcy Custodian of the Company or a Bankruptcy Custodian
for all or substantially all of the property of the Company, or




          (C) orders the liquidation of the Company; or




     (7) any other Event of Default provided with respect to Securities of that series
occurs.



          The term “Bankruptcy Custodian” means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.




          The Trustee shall not be deemed to know or have notice of a Default unless a Trust Officer at
the Corporate Trust Office of the Trustee receives written notice at the Corporate Trust Office of
the Trustee of that Default with specific reference to that Default.




          When a Default is cured, it ceases.




          Notwithstanding the foregoing provisions of this Section 6.01, if the principal of, premium
(if any) or interest on or Additional Amounts with respect to any Security is payable in a currency
or currencies (including a composite currency) other than Dollars and such currency or currencies
are not available to the Company for making payment thereof due to the imposition of exchange
controls or other circumstances beyond the control of the Company (a “Conversion Event”), the
Company will be entitled to satisfy its obligations to Holders of the Securities by making that
payment in Dollars in an amount equal to the Dollar equivalent of the amount







28









 







payable in such other
currency, as determined by the Company by reference to the Exchange Rate on the date of that
payment, or, if that rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this Section 6.01, any payment made
under such circumstances in Dollars where the required payment is in a currency other than Dollars
will not constitute an Event of Default under this Indenture.




          Promptly after the occurrence of a Conversion Event, the Company shall give written notice
thereof to the Trustee; and the Trustee, promptly after receipt of that notice, shall give notice
thereof in the manner provided in Section 12.02 to the Holders. Promptly after the making of any
payment in Dollars as a result of a Conversion Event, the Company shall give notice in the manner
provided in Section 12.02 to the Holders, setting forth the applicable Exchange Rate and describing
the calculation of those payments.




          A Default under clause (4) or (7) of this Section 6.01 is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount of the then
outstanding Securities of the series affected by that Default (or, in the case of a Default under
clause (4) of this Section 6.01, if outstanding Securities of other series are affected by that
Default, then at least 25% in principal amount of the then outstanding Securities so affected)
notify the Company and the Trustee, of the Default, and the Company fails to cure the Default
within 90 days after receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a “Notice of Default.”




SECTION 6.02 Acceleration.




          If an Event of Default with respect to any Securities of any series at the time outstanding
(other than an Event of Default specified in clause (5) or (6) of Section 6.01 hereof) occurs and
is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the then outstanding Securities of the series affected by that default (or, in the case
of an Event of Default described in clause (4) of Section 6.01, if outstanding Securities of other
series are affected by that Default, then at least 25% in principal amount of the then outstanding
Securities so affected) by notice to the Company and the Trustee, may declare the principal of (or,
if any of those Securities are Original Issue Discount Securities, that portion of the principal
amount as may be specified in the terms of that series) and all accrued and unpaid interest on all
then outstanding Securities of that series or of all series, as the case may be, to be due and
payable. Upon any such declaration, the amounts due and payable on those Securities shall be due
and payable immediately. If an Event of Default specified in clause (5) or (6) of Section 6.01
hereof occurs, those amounts shall ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee or any Holder. The Holders of a
majority in principal amount of the then outstanding Securities of the series affected by that
default or all series, as the case may be, by written notice to the Trustee may rescind an
acceleration and its consequences (other than nonpayment of principal of or premium or interest on
or any Additional Amounts with respect to the Securities) if the rescission would not conflict with
any judgment or decree and if all existing Events of Default with respect to Securities of that
series (or of all series, as the case may be) have been cured or waived, except nonpayment of
principal, premium, interest or any Additional Amounts that has become due solely because of the
acceleration.






29









 








SECTION 6.03 Other Remedies.




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




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




SECTION 6.04 Waiver of Defaults.




          Subject to Sections 6.07 and 9.02, the Holders of a majority in principal amount of the then
outstanding Securities of any series or of all series (acting as one class) by notice to the
Trustee may waive an existing or past Default or Event of Default with respect to that series or
all series, as the case may be, and its consequences (including waivers obtained in connection with
a tender offer or exchange offer for Securities of that series or all series or a solicitation of
consents in respect of Securities of that series or all series, provided that in each case that
offer or solicitation is made to all Holders of then outstanding Securities of that series or all
series (but the terms of that offer or solicitation may vary from series to series)), except (1) a
continuing Default or Event of Default in the payment of the principal of, or premium, if any, or
interest on or any Additional Amounts with respect to any Security or (2) a continued Default in
respect of a provision that under Section 9.02 cannot be amended or supplemented without the
consent of each Holder affected. Upon any such waiver, that Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.




SECTION 6.05 Control by Majority.




          With respect to Securities of any series, the Holders of a majority in principal amount of the
then outstanding Securities of that series may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default described in clause (1), (2), (3)
or (7) of Section 6.01, and with respect to all Securities, the Holders of a majority in principal
amount of all the then outstanding Securities affected may direct in writing the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it not relating to or arising under such an Event of Default. However, the
Trustee may refuse to follow any direction that conflicts with applicable law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of other Holders, or that may
involve the Trustee in personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with that direction. Prior to taking
any action hereunder, the Trustee shall be entitled to indemnification




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satisfactory to it in its
sole discretion from Holders directing the Trustee against all losses and expenses caused by taking
or not taking that action.




SECTION 6.06 Limitations on Suits.




          Subject to Section 6.07 hereof, a Holder of a Security of any series may pursue a remedy with
respect to this Indenture or the Securities of that series only if:





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




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




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




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




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



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




SECTION 6.07 Rights of Holders to Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal of and premium, if any, and interest on and any Additional Amounts
with respect to that Security, on or after the respective due dates expressed in that Security, or
to bring suit for the enforcement of any such payment on or after those respective dates, is
absolute and unconditional and shall not be impaired or affected without the consent of the Holder.




SECTION 6.08 Collection Suit by Trustee.




          If an Event of Default specified in clause (1) or (2) of Section 6.01 hereof occurs and is
continuing with respect to Securities of any series, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the amount of principal,
premium (if any), interest and any Additional Amounts remaining unpaid on the Securities of that
series, and interest on overdue principal and premium, if any, and, to the extent lawful, interest
on overdue interest, and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.




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SECTION 6.09 Trustee May File Proofs of Claim.




          The Trustee is authorized to file such proofs of claim and other papers or documents and to
take such actions, including participating as a member, voting or otherwise, of any committee of
creditors, as may be necessary or advisable to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceeding relative to the Company or its
creditors or properties and shall be entitled and empowered to collect, receive and distribute any
money or other property payable or deliverable on any such claims and any
Bankruptcy Custodian in any such judicial proceeding is hereby authorized by each Holder to
make those payments to the Trustee, and in the event that the Trustee shall consent to the making
of those payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, money, securities and other properties
which the Holders of the Securities may be entitled to receive in that proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.




SECTION 6.10 Priorities.




          If the Trustee collects any money pursuant to this Article VI, subject to Article X, it shall
pay out the money in the following order:




          First: to the Trustee for amounts due under Section 7.07;





     Second: to Holders for amounts due and unpaid on the Securities in respect of which or
for the benefit of which that money has been collected, for principal, premium (if any),
interest and any Additional Amounts ratably, without preference or priority of any kind,
according to the amounts due and payable on those Securities for principal, premium (if
any), interest and any Additional Amounts, respectively; and



          Third: to the Company.




          The Trustee, on prior written notice to the Company, may fix record dates and payment dates
for any payment to Holders pursuant to this Article VI.




          To the fullest extent allowed under applicable law, if for the purpose of obtaining a judgment
against the Company in any court it is necessary to convert the sum due in respect of the principal
of, premium (if any) or interest on or Additional Amounts with respect to the Securities of any
series (the “Required Currency”) into a currency in which a judgment will be rendered (the
“Judgment Currency”), the rate of exchange used shall be the rate at which in







32









 







accordance with
normal banking procedures the Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the New York Business Day next preceding that on which final judgment
is given. Neither the Company nor the Trustee shall be liable for any shortfall nor shall it
benefit from any windfall in payments to Holders of Securities under this Section 6.10 caused by a
change in exchange rates between the time the amount of a judgment against it is calculated as
above and the time the Trustee converts the Judgment Currency into the Required Currency to make
payments under this Section to Holders of
Securities, but payment of that judgment shall discharge all amounts owed by the Company on
the claim or claims underlying that judgment.




SECTION 6.11 Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.




ARTICLE VII



TRUSTEE




SECTION 7.01 Duties of Trustee.




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




          (b) Except during the continuance of an Event of Default with respect to the Securities of any
series:





     (1) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, on
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine those certificates and opinions to determine
whether, on their face, they appear to conform to the requirements of this Indenture.



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






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     (1) this paragraph does not limit the effect of Section 7.01(b);




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




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



          (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to the provisions of this Section 7.01.




          (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity reasonably satisfactory to it against any loss, liability or expense.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law. All money received by the
Trustee with respect to Securities of any series shall, until applied as herein provided, be held
in trust for the payment of the principal of, premium (if any) and interest on and Additional
Amounts with respect to the Securities of that series.




SECTION 7.02 Rights of Trustee.





     (a) The Trustee may rely on any document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.




     (b) Before the Trustee acts or refrains from acting, it may require instruction, an
Officers’ Certificate or an Opinion of Counsel or both to be provided. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance on that
instruction, Officers’ Certificate or Opinion of Counsel. The Trustee may consult with
counsel, and the written advice of that counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.




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




     (d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers conferred on it by
this Indenture.



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



SECTION 7.03 May Hold Securities.




          The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or any of its Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights and duties. However,
the Trustee is subject to Sections 7.10 and 7.11.




SECTION 7.04 Trustee’s Disclaimer.




          The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities; it shall not be accountable for the Company’s use of the proceeds from the Securities
or any money paid to the Company or upon the Company’s direction under any provision hereof; it
shall not be responsible for the use or application of any money received by any Paying Agent other
than the Trustee; and it shall not be responsible for any statement or recital herein or any
statement in the Securities other than its certificate of authentication.




SECTION 7.05 Notice of Defaults.




          If a Default or Event of Default with respect to the Securities of any series occurs and is
continuing and it is known to the Trustee, the Trustee shall mail to Holders of Securities of that
series a notice of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium (if any) and interest on
and Additional Amounts or any sinking fund installment with respect to the Securities of that
series, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of Holders of Securities of
that series.




SECTION 7.06 Reports by Trustee to Holders.




          Within 60 days after each May 15 of each year after the execution of this Indenture, the
Trustee shall mail to Holders of a series and the Company a brief report dated as of that reporting
date that complies with TIA § 313(a); provided, however, that if no event described in TIA §
313(a) has occurred within the twelve months preceding the reporting date with respect to a series,
no report need be transmitted to Holders of that series. The Trustee also shall comply with TIA §
313(b). The Trustee shall also transmit by mail all reports if and as required by TIA §§ 313(c)
and 313(d).




          A copy of each report at the time of its mailing to Holders of a series of Securities shall be
filed by the Company with the SEC and each securities exchange, if any, on which the Securities of
that series are listed. The Company shall notify the Trustee if and when any series of Securities
is listed on any stock exchange.






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SECTION 7.07 Compensation and Indemnity.




          The Company agrees to pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company agrees to
reimburse the Trustee on request for all reasonable disbursements, advances and expenses incurred
by it. Those expenses shall include the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.




          The Company hereby indemnifies the Trustee against any loss, liability or expense incurred by
it arising out of or in connection with the acceptance or administration of its duties under this
Indenture, except as set forth in the next paragraph. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel, and the Company
shall pay the reasonable fees and expenses of that counsel. The Company need not pay for any
settlement made without its consent.




          The Company shall not be obligated to reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through negligence or bad faith.




          To secure the payment obligations of the Company in this Section 7.07, the Trustee shall have
a lien prior to the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts
with respect to the Securities of any series. That lien shall survive the satisfaction and
discharge of this Indenture.




          When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(5) or (6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.




SECTION 7.08 Replacement of Trustee.




          A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only on the successor Trustee’s acceptance of appointment as provided in this Section
7.08.




          The Trustee may resign and be discharged at any time with respect to the Securities of one or
more series by so notifying the Company. The Holders of a majority in principal amount of the then
outstanding Securities of any series may remove the Trustee with
respect to the Securities of that series by so notifying the Trustee and the Company. The
Company may remove the Trustee if:





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




     (2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;



36









 






     (3) a Bankruptcy Custodian or public officer takes charge of the Trustee or its
property; or




     (4) the Trustee otherwise becomes incapable of acting.



          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more series, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of those series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). Within one year after the successor Trustee with respect
to the Securities of any series takes office, the Holders of a majority in principal amount of the
Securities of that series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.




          If a successor Trustee with respect to the Securities of any series does not take office
within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the then outstanding Securities of that
series may petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of that series.




          If the Trustee with respect to the Securities of a series fails to comply with Section 7.10,
any Holder of Securities of that series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of
that series.




          In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and
to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and duties of the retiring
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07.




          In case of the appointment of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more (but not all) series shall execute and deliver an
indenture supplemental hereto in which each successor Trustee shall accept that appointment and
that (1) shall confer to each successor Trustee all the rights, powers and duties of the retiring
Trustee with respect to the Securities of that or those series to which the appointment of that
successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall confirm that all the rights, powers and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee. Nothing herein or in that supplemental indenture
shall constitute those Trustees co-trustees of the same trust, and each such Trustee shall be
trustee of a




37









 




trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee. Upon the execution and delivery of that supplemental
indenture, the resignation or removal of the retiring Trustee shall become effective to the extent
provided therein, and each such successor Trustee shall have all the rights, powers and duties of
the retiring Trustee with respect to the Securities of that or those series to which the
appointment of that successor Trustee relates. On the request of the Company or any successor
Trustee, that retiring Trustee shall transfer to that successor Trustee all property held by that
retiring Trustee as Trustee with respect to the Securities of that or those series to which the
appointment of that successor Trustee relates.




          Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.08, the
obligations of the Company under Section 7.07 shall continue for the benefit of the retiring
Trustee or Trustees.




SECTION 7.09 Successor Trustee by Merger, etc.




          Subject to Section 7.10, if the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee; provided, however, that in the
case of a transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee’s liabilities
hereunder.




          In case any Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to that authenticating Trustee may
adopt that authentication and deliver the Securities so authenticated; and in case at that time any
of the Securities shall not have been authenticated, any successor to the Trustee may authenticate
those Securities either in the name of any predecessor hereunder or in the name of the successor to
the Trustee; and in all those cases those certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall
have.




SECTION 7.10 Eligibility; Disqualification.




          There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States, any State thereof or the District of Columbia
and authorized under those laws to exercise corporate trust power, shall be subject to supervision
or examination by Federal or State (or the District of Columbia) authority
and shall have, or be a Subsidiary of a bank or bank holding company having, a combined
capital and surplus of at least $50 million as set forth in its most recent published annual report
of condition.




          The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1),
310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA §
310(b) during the period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA § 310(b).




38









 





SECTION 7.11 Preferential Collection of Claims Against Company.




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




ARTICLE VIII



DISCHARGE OF INDENTURE




SECTION 8.01 Termination of Company’s Obligations.




          (a) This Indenture shall cease to be of further effect with respect to the Securities of a
series (except as to any surviving rights of conversion or of registration of transfer or exchange
of Securities expressly provided for herein and except that the Company’s obligations under Section
7.07, the Trustee’s and Paying Agent’s obligations under Section 8.03 and the rights, powers,
protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee,
on demand of the Company, shall execute proper instruments acknowledging the satisfaction and
discharge of this Indenture with respect to the Securities of that series, when:




          (1) either





          (A) all outstanding Securities of that series theretofore authenticated and
issued (other than destroyed, lost or stolen Securities that have been replaced or
paid) have been delivered to the Trustee for cancellation; or




          (B) all outstanding Securities of that series not theretofore delivered to the
Trustee for cancellation:




          (i) have become due and payable, or




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




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



and, in the case of clause (i), (ii) or (iii) above, the Company has irrevocably
deposited or caused to be deposited with the Trustee as funds (immediately available
to the Holders in the case of clause (i)) in trust for that purpose (x) cash in an
amount, or (y) Government Obligations, maturing as to principal and interest at such
times and in such amounts as will ensure the availability of cash in an amount or
(z) a combination thereof, which will be sufficient, in the opinion (in the case of
clauses (y) and (z)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge the entire indebtedness on the Securities of that series for
principal and any interest and any Additional Amounts to the date of





39









 








that deposit
(in the case of Securities which have become due and payable) or for principal,
premium, if any, interest and any Additional Amounts to the Stated Maturity or
Redemption Date, as the case may be; or




          (C) the Company has properly fulfilled such other means of satisfaction and
discharge as is specified, as contemplated by Section 2.01, to be applicable to the
Securities of that series;




     (2) the Company has paid or caused to be paid all other sums payable by it hereunder
with respect to the Securities of that series; and




     (3) the Company has delivered to the Trustee an Officers’ Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of that series have been complied with, together with an Opinion of Counsel to
the same effect.



          (b) Unless this Section 8.01(b) is specified as not being applicable to Securities of a series
as contemplated by Section 2.01, the Company may terminate certain of its obligations under this
Indenture (“covenant defeasance”) with respect to the Securities of a series if:





     (1) the Company has irrevocably deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for and dedicated solely to the benefit of the Holders of
Securities of that series, (i) money in the currency in which payment of the Securities of
that series is to be made in an amount, or (ii) Government Obligations with respect to that
series, maturing as to principal and interest at such times and in such amounts as will
ensure the availability of money in the currency in which payment of the Securities of that
series is to be made in an amount or (iii) a combination thereof, that is sufficient, in the
opinion (in the case of clauses (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, to pay, without consideration of the reinvestment of any such amounts and after
payment of all taxes or other charges or assessments in respect thereof
payable by the Trustee, the principal of and premium (if any) and interest on and any
Additional Amounts with respect to all Securities of that series on each date that such
principal, premium (if any), interest or Additional Amounts are due and payable and (at the
Stated Maturity thereof or on redemption as provided in Section 8.01(e)) to pay all other
sums payable by it hereunder; provided that the Trustee shall have been irrevocably
instructed to apply that money and/or the proceeds of those Government Obligations to the
payment of said principal, premium (if any), interest and Additional Amounts with respect to
the Securities of that series as the same shall become due;




     (2) the Company has delivered to the Trustee an Officers’ Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of that series have been complied with, and an Opinion of Counsel to the same
effect;



40









 






     (3) no Default or Event of Default with respect to the Securities of that series shall
have occurred and be continuing on the date of that deposit;




     (4) the Company shall have delivered to the Trustee an Opinion of Counsel from counsel
reasonably acceptable to the Trustee or a tax ruling to the effect that the Holders of
Securities of that series will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company’s exercise of its option under this Section 8.01(b) and
will be subject to Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if that option had not been exercised;




     (5) the Company has complied with any additional conditions specified pursuant to
Section 2.01 to be applicable to the discharge of Securities of that series pursuant to this
Section 8.01; and




     (6) that deposit and discharge shall not cause the Trustee to have a conflicting
interest as defined in TIA § 310(b).



          In that event, this Indenture shall cease to be of further effect (except as set forth in this
paragraph), and the Trustee, on demand of the Company, shall execute proper instruments
acknowledging satisfaction and discharge under this Indenture. However, the Company’s obligations
in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 5.01, 7.07, 7.08 and 8.04, the Trustee’s and
Paying Agent’s obligations in Section 8.03 and the rights, powers, protections and privileges
accorded the Trustee under Article VII shall survive until all Securities of that series are no
longer outstanding. Thereafter, only the Company’s obligations in Section 7.07 and the Trustee’s
and Paying Agent’s obligations in Section 8.03 shall survive with respect to Securities of that
series.




          After making the irrevocable deposit pursuant to this Section 8.01(b) and following
satisfaction of the other conditions set forth herein, the Trustee on request shall acknowledge in
writing the discharge of the Company’s obligations under this Indenture with respect to the
Securities of that series, except for those surviving obligations specified above.




          In order to have money available on a payment date to pay principal of or premium (if any) or
interest on or any Additional Amounts with respect to the Securities, the Government Obligations
shall be payable as to principal or interest on or before that payment date in such amounts as will
provide the necessary money. Any such Government Obligations shall not be callable at the issuer’s
option.




          (c) If the Company has previously complied or is concurrently complying with Section 8.01(b)
(other than any additional conditions specified pursuant to Section 2.01 that are expressly
applicable only to covenant defeasance) with respect to Securities of a series, then, unless this
Section 8.01(c) is specified as not being applicable to Securities of that series as contemplated
by Section 2.01, the Company may elect to be discharged (“legal defeasance”) from its obligations
to make payments with respect to Securities of that series, if:





     (1) no Default or Event of Default under clauses (5) and (6) of Section 6.01 hereof
shall have occurred at any time during the period ending on the 91st day after the



41









 





date of
deposit contemplated by Section 8.01(b) (it being understood that this condition shall not
be deemed satisfied until the expiration of that period);




     (2) unless otherwise specified with respect to Securities of that series as
contemplated by Section 2.01, the Company has delivered to the Trustee an Opinion of
Counsel from counsel reasonably acceptable to the Trustee to the effect referred to in
Section 8.01(b)(4) with respect to that legal defeasance, which opinion is based on (i) a
private ruling of the Internal Revenue Service addressed to the Company, (ii) a published
ruling of the Internal Revenue Service or (iii) a change in the applicable federal income
tax law (including regulations) after the date of this Indenture;




     (3) the Company has complied with any other conditions specified pursuant to Section
2.01 to be applicable to the legal defeasance of Securities of that series pursuant to this
Section 8.01(c); and




     (4) the Company has delivered to the Trustee a Company Request requesting legal
defeasance of the Securities of that series and an Officers’ Certificate stating that all
conditions precedent with respect to legal defeasance of the Securities of that series have
been complied with, together with an Opinion of Counsel to the same effect.



          In that event, the Company will be discharged from its obligations under this Indenture and
the Securities of that series to pay principal of, premium (if any) and interest on, and any
Additional Amounts with respect to, Securities of that series, the Company’s obligations under
Sections 4.01, 4.02 and 5.01 shall terminate with respect to those Securities, and the entire
indebtedness of the Company evidenced by those Securities shall be deemed paid and discharged.




          (d) If and to the extent additional or alternative means of satisfaction, discharge or
defeasance of Securities of a series are specified to be applicable to that series as contemplated
by Section 2.01, the Company may terminate any or all of its obligations under this Indenture with
respect to Securities of a series and any or all of its obligations under the
Securities of that series if it fulfills such other means of satisfaction and discharge as may
be so specified, as contemplated by Section 2.01, to be applicable to the Securities of that
series.




          (e) If Securities of any series subject to subsections (a), (b), (c) or (d) of this Section
8.01 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for that redemption, and the Company shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.




SECTION 8.02 Application of Trust Money.




          The Trustee or a trustee reasonably satisfactory to the Trustee and the Company shall hold in
trust money or Government Obligations deposited with it pursuant to Section 8.01 hereof. It shall
apply the deposited money and the money from Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series




42









 




with respect to which the
deposit was made. Money and securities held in trust are not subject to Article X.




SECTION 8.03 Repayment to Company.




          The Trustee and the Paying Agent shall promptly pay to the Company at any time on the written
request of the Company any excess money or Government Obligations (or proceeds therefrom) held by
them.




          Subject to the requirements of any applicable abandoned property laws, the Trustee and the
Paying Agent shall pay to the Company on written request any money held by them for the payment of
principal, premium (if any), interest or any Additional Amounts that remain unclaimed for two years
after the date on which that payment shall have become due. After payment to the Company, Holders
entitled to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability of the Trustee and
the Paying Agent with respect to that money shall cease.




SECTION 8.04 Reinstatement.




          If the Trustee or the Paying Agent is unable to apply any money or Government Obligations
deposited with respect to Securities of any series in accordance with Section 8.01 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 that application, the obligations of the Company
under this Indenture with respect to the Securities of that series and
under the Securities of that series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is permitted
to apply all such money or Government Obligations in accordance with Section 8.01; provided,
however, that if the Company has made any payment of principal of, premium (if any) or interest on
or any Additional Amounts with respect to any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of those Securities to
receive such payment from the money or Government Obligations held by the Trustee or the Paying
Agent.




ARTICLE IX



SUPPLEMENTAL INDENTURES AND AMENDMENTS




SECTION 9.01 Without Consent of Holders.




          The Company and the Trustee may amend or supplement this Indenture or the Securities or waive
any provision hereof or thereof without the consent of any Holder:




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




          (2) to comply with Section 5.01;




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     (3) to provide for uncertificated Securities in addition to or in place of certificated
Securities, or to provide for the issuance of bearer Securities (with or without coupons);




     (4) to provide any security for any series of Securities or to add Guarantees of any
series of Securities;




     (5) to comply with any requirement in order to effect or maintain the qualification of
this Indenture under the TIA;




     (6) to add to the covenants of the Company for the benefit of the Holders of all or any
series of Securities (and if those covenants are to be for the benefit of less than all
series of Securities, stating that those covenants are expressly being included solely for
the benefit of that series), or to surrender any right or power herein conferred on the
Company;




     (7) to add any additional Events of Default with respect to all or any series of the
Securities (and, if any such Event of Default is applicable to less than all series of
Securities, specifying the series to which that Event of Default is applicable);




     (8) to change or eliminate any of the provisions of this Indenture; provided that any
such change or elimination shall become effective only when there is no outstanding Security
of any series created prior to the execution of that amendment or supplemental indenture
that is adversely affected in any material respect by that change in or elimination of that
provision;




     (9) to establish the form or terms of Securities of any series as permitted by Section
2.01;




     (10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Section 8.01; provided, however, that any such action shall not adversely affect
the interest of the Holders of Securities of that series or any other series of Securities
in any material respect; or




     (11) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 7.08.



          Upon the request of the Company, accompanied by a Board Resolution, and upon receipt by the
Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06,
join with the Company in the execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and stipulations that may be
therein contained.




44









 





SECTION 9.02 With Consent of Holders.




          Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture with the written consent (including consents obtained in connection with
a tender offer or exchange offer for Securities of any one or more series or all series or a
solicitation of consents in respect of Securities of any one or more series or all series, provided
that in each case that offer or solicitation is made to all Holders of then outstanding Securities
of each such series (but the terms of that offer or solicitation may vary from series to series))
of the Holders of at least a majority in principal amount of the then outstanding Securities of all
series affected by that amendment or supplement (acting as one class).




          Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06, join with
the Company in the execution of that amendment or supplemental indenture.




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




          The Holders of a majority in principal amount of the then outstanding Securities of one or
more series or of all series may waive compliance in a particular instance by the Company with any
provision of this Indenture with respect to Securities of that series (including waivers obtained
in connection with a tender offer or exchange offer for Securities of that series
or a solicitation of consents in respect of Securities of that series, provided that in each
case that offer or solicitation is made to all Holders of then outstanding Securities of that
series (but the terms of that offer or solicitation may vary from series to series)).




          However, without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not:





     (1) reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver;




     (2) reduce the rate of or change the time for payment of interest, including default
interest, on any Security;




     (3) reduce the principal of, premium on or any mandatory sinking fund payment with
respect to, or change the Stated Maturity of, any Security or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable on a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02;




     (4) reduce the premium, if any, payable on the redemption of any Security or change the
time at which any Security may or shall be redeemed;




     (5) change any obligation of the Company to pay Additional Amounts with respect to any
Security;



45









 






     (6) change the coin or currency or currencies (including composite currencies) in which
any Security or any premium, interest or Additional Amounts with respect thereto are
payable;




     (7) impair the right to institute suit for the enforcement of any payment of principal
of, premium (if any) or interest on or any Additional Amounts with respect to any Security
pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;




     (8) make any change in the percentage of principal amount of Securities necessary to
waive compliance with certain provisions of this Indenture pursuant to Section 6.04 or 6.07
or make any change in this sentence of Section 9.02;




     (9) modify the provisions of this Indenture with respect to the subordination of any
Security in a manner adverse to the Holder thereof; or




     (10) waive a continuing Default or Event of Default in the payment of principal of,
premium (if any) or interest on or Additional Amounts with respect to the Securities.



          An amendment under this Section may not make any change that adversely affects the rights
under Article X of any holder of an issue of Senior Indebtedness of the Company unless the holders
of the issue pursuant to its terms consent to the change.




          A supplemental indenture that changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the Holders of
Securities of that series with respect to that covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other series.




          The right of any Holder to participate in any consent required or sought pursuant to any
provision of this Indenture (and the obligation of the Company to obtain any such consent otherwise
required from that Holder) may be subject to the requirement that such Holder shall have been the
Holder of record of any Securities with respect to which that consent is required or sought as of a
date identified by the Company in a notice furnished to Holders in accordance with the terms of
this Indenture.




          After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders of each Security affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail that notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver.




SECTION 9.03 Compliance with Trust Indenture Act.




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






46









 








SECTION 9.04 Revocation and Effect of Consents.




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




          The Company may, but shall not be obligated to, fix a record date (which need not comply with
Section 316(c) of the TIA) for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver or to take any other action under this Indenture. If a record date
is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons
who were Holders at that record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to that amendment, supplement or waiver or to revoke any consent
previously given, whether or not those Persons continue to be Holders after that record date. No
consent shall be valid or effective for more than 90 days after that record date unless consents
from Holders of the principal amount of Securities required hereunder for that amendment or waiver
to be effective shall have also been given and not revoked within that 90-day period.




          After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it is of the type described in any of clauses (1) through (9) of Section 9.02 hereof. In that
case, the amendment, supplement or waiver shall bind each Holder who has consented to it and every
subsequent Holder that evidences the same debt as the consenting Holder’s Security.




SECTION 9.05 Notation on or Exchange of Securities.




          If an amendment or supplement changes the terms of an outstanding Security, the Company may
require the Holder of the Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security at the request of the Company regarding the changed terms and
return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for
the Security shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of that amendment or supplement.




          Securities of any series authenticated and delivered after the execution of any amendment or
supplement may, and shall if required by the Company, bear a notation in form approved by the
Company as to any matter provided for in that amendment or supplement.




SECTION 9.06 Trustee to Sign Amendments, etc.




          The Trustee shall sign any amendment or supplement authorized pursuant to this Article if the
amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of
the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign
that amendment or supplement, the Trustee shall be entitled to receive, and,






47









 







subject to Section
7.01 hereof, shall be fully protected in relying on, an Opinion of Counsel provided at the expense
of the Company as conclusive evidence that such amendment or supplement is authorized or permitted
by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding on
the Company in accordance with its terms.




ARTICLE X



SUBORDINATION




SECTION 10.01 Securities Subordinated to Senior Indebtedness.




          The Company and each Holder of a Security, by his or her acceptance thereof, agree that (a)
the payment of the principal of, premium (if any) and interest on and any Additional Amounts with
respect to each and all the Securities and (b) any other payment in respect of the Securities,
including on account of the acquisition or redemption of Securities by the Company, is
subordinated, to the extent and in the manner provided in this Article X, to the prior payment in
full of all Senior Indebtedness of the Company, whether outstanding at the date of this Indenture
or thereafter created, incurred, assumed or guaranteed, and that these subordination provisions are
for the benefit of the holders of Senior Indebtedness of the Company.




          Each Holder of a Security, by his or her acceptance thereof, acknowledges and agrees that the
provisions of this Article X are, and are intended to be, an inducement and a consideration to all
Persons who, in reliance on such provisions, become holders of, or continue to hold, Senior
Indebtedness of the Company, and such provisions are made for the benefit of the holders of Senior
Indebtedness of the Company, and those holders are made obligees hereunder, and any one or more of
them may enforce such provisions.




SECTION 10.02 No Payment on Securities in Certain Circumstances.





     (a) Unless otherwise specified with respect to Securities of a series as contemplated
by Section 2.01, no payment shall be made by or on behalf of the Company on account of the
principal of, premium (if any) or interest on or any Additional Amounts with respect to the
Securities of any series or to acquire any of those Securities (including any repurchases of
those Securities pursuant to the provisions thereof at the option of the Holder of those
Securities) for cash or property (other than Junior securities of the Company), or on
account of any redemption provisions of those Securities, in the event of default in payment
of any principal of, premium (if any) or interest on any Senior Indebtedness of the Company
when the same becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise (a “Payment Default”), unless and until that
Payment Default has been cured or waived or otherwise has ceased to exist.




     (b) Unless otherwise specified with respect to Securities of a series as contemplated
by Section 2.01, no payment shall be made by or on behalf of the Company on account of the
principal of, premium (if any) or interest on or any Additional Amounts with respect to the
Securities of any series or to acquire any of those Securities (including any repurchases of
those Securities pursuant to the provisions thereof at the option of the



48









 





Holder of those
Securities) for cash or property (other than Junior securities of the Company), or on
account of the redemption provisions of those Securities, in the event of any event of
default (other than a Payment Default) with respect to any Designated Senior Indebtedness
permitting the holders of that Designated Senior Indebtedness (or a trustee or other
representative on behalf of the holders thereof) to declare that Designated Senior
Indebtedness due and payable prior to the date on which it would otherwise have become due
and payable, on written notice thereof to the Company and the Trustee by any holders of
Designated Senior Indebtedness (or a trustee or other representative on behalf of the
holders thereof) (the “Payment Blocking Notice”), unless and until that event of default
shall have been cured or waived or otherwise has ceased to exist; provided, that such
payments may not be prevented pursuant to this Section 10.02(b) for more than 179 days after
an applicable Payment Blocking Notice has been received by the Trustee unless the Designated
Senior Indebtedness in respect of which that event of default exists has been declared due
and payable in its entirety, in which case no such payment may be made until that
acceleration has been rescinded or annulled or that Designated Senior Indebtedness has been
paid in full. Unless otherwise specified with respect to Securities of a series as
contemplated by Section 2.01, no event of default that existed or was continuing on the date
of any Payment Blocking Notice (whether or not
that event of default is on the same issue of Designated Senior Indebtedness) may be
made the basis for the giving of a second Payment Blocking Notice, and only one such Payment
Blocking Notice may be given in any period of 365 consecutive days.




     (c) In furtherance of the provisions of Section 10.01, in the event that,
notwithstanding the foregoing provisions of this Section 10.02, any payment or distribution
of assets of the Company (other than Junior securities of the Company) shall be received by
the Trustee or the Holders of the Securities of any series or any Paying Agent with respect
thereto at a time when that payment or distribution was prohibited by the provisions of this
Section 10.02, then, unless that payment or distribution is no longer prohibited by this
Section 10.02, that payment or distribution (subject to the provisions of Section 10.07)
shall be received and held in trust by the Trustee or such Holders or Paying Agent for the
benefit of the holders of Senior Indebtedness of the Company, and shall be paid or delivered
by the Trustee or such Holders or Paying Agent, as the case may be, to the holders of Senior
Indebtedness of the Company remaining unpaid or unprovided for or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing that Senior Indebtedness of the Company may have been issued,
ratably, according to the aggregate amounts remaining unpaid on account of that Senior
Indebtedness of the Company held or represented by each, for application to the payment of
all Senior Indebtedness of the Company in full after giving effect to all concurrent
payments and distributions to or for the holders of that Senior Indebtedness.



SECTION 10.03 Securities Subordinated to Prior Payment of All Senior Indebtedness on Dissolution,
Liquidation or Reorganization.




          Upon any distribution of assets of the Company or upon any dissolution, winding up, total or
partial liquidation or reorganization of the Company, whether voluntary or involuntary, in
bankruptcy, insolvency, receivership or






49









 







similar proceeding or upon assignment for the benefit of
creditors:





     (a) the holders of all Senior Indebtedness of the Company shall first be entitled to
receive payments in full before the Holders of Securities of any series are entitled to
receive any payment (other than in the form of Junior securities of the Company) on account
of the principal of, premium (if any) or interest on or any Additional Amounts with respect
to those Securities;




     (b) any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than Junior securities of the Company), to
which the Holders of Securities of any series or the Trustee on behalf of those Holders
would be entitled, except for the provisions of this Article X, shall be paid by the
liquidating trustee or agent or other Person making such a payment or distribution directly
to the holders of that Senior Indebtedness or their representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all that Senior Indebtedness remaining
unpaid after giving effect to all concurrent payments and distributions to the holders
of that Senior Indebtedness; and




     (c) in the event that, notwithstanding the foregoing, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or securities
(other than Junior securities of the Company), shall be received by the Trustee or the
Holders of Securities of any series or any Paying Agent with respect thereto (or, if the
Company or any Affiliate of the Company is acting as its own Paying Agent, money for any
such payment or distribution shall be segregated or held in trust) on account of the
principal of, premium (if any) or interest on or any Additional Amounts with respect to the
Securities of that series before all Senior Indebtedness of the Company is paid in full,
that payment or distribution (subject to the provisions of Section 10.07) shall be received
and held in trust by the Trustee or such Holder or Paying Agent for the benefit of the
holders of that Senior Indebtedness, or their respective representatives, ratably according
to the respective amounts of that Senior Indebtedness held or represented by each, to the
extent necessary to make payment as provided herein of all that Senior Indebtedness
remaining unpaid after giving effect to all concurrent payments and distributions and all
provisions therefor to or for the holders of that Senior Indebtedness, but only to the
extent that as to any holder of that Senior Indebtedness, as promptly as practical following
notice from the Trustee to the holders of that Senior Indebtedness that such prohibited
payment has been received by the Trustee, Holder(s) or Paying Agent (or has been segregated
as provided above), that holder (or a representative therefor) notifies the Trustee of the
amounts then due and owing on that Senior Indebtedness, if any, held by that holder, and
only the amounts specified in those notices to the Trustee shall be paid to the holders of
that Senior Indebtedness.



SECTION 10.04 Subrogation to Rights of Holders of Senior Indebtedness.




          Subject to the payment in full of all Senior Indebtedness of the Company as provided herein,
the Holders of the Securities shall be subrogated (to the extent of the payments





50









 







or distributions
made to the holders of that Senior Indebtedness pursuant to the provisions of this Article X) to
the rights of the holders of that Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to that Senior Indebtedness until all amounts owing on the
Securities shall be paid in full. For the purpose of that subrogation, no such payments or
distributions to the holders of that Senior Indebtedness by the Company, or by or on behalf of the
Holders of the Securities by virtue of this Article X, which otherwise would have been made to
those Holders shall, as among the Company, its creditors other than the holders of Senior
Indebtedness of the Company and those Holders, be deemed to be payment by the Company or on account
of that Senior Indebtedness, it being understood that the provisions of this Article X are and are
intended solely for the purpose of defining the relative rights of the Holders of the Securities,
on the one hand, and the holders of that Senior Indebtedness, on the other hand.




          If any payment or distribution to which the Holders of the Securities would otherwise have
been entitled but for the provisions of this Article X shall have been applied,
pursuant to the provisions of this Article X, to the payment of amounts payable under Senior
Indebtedness of the Company, then those Holders shall be entitled to receive from the holders of
that Senior Indebtedness any payments or distributions received by those holders of Senior
Indebtedness of the Company in excess of the amount sufficient to pay all amounts payable under or
in respect of that Senior Indebtedness in full.




SECTION 10.05 Obligations of the Company Unconditional.




          Nothing contained in this Article X or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company and the Holders of the Securities of any
series, the obligation of the Company, which is absolute and unconditional, to pay to those Holders
the principal of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of that series as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of those Holders and creditors
of the Company other than the holders of Senior Indebtedness of the Company, nor shall anything
herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law on default under this Indenture, subject to the rights, if any, under
this Article X, of the holders of Senior Indebtedness of the Company in respect of cash, property
or securities of the Company received on the exercise of any such remedy. Notwithstanding anything
to the contrary in this Article X or elsewhere in this Indenture or in the Securities, on any
distribution of assets of the Company referred to in this Article X, the Trustee, subject to the
provisions of Sections 7.01 and 7.02, and the Holders of the Securities shall be entitled to rely
on any order or decree made by any court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, or a certificate of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to those
Holders for the purpose of ascertaining the Persons entitled to participate in that distribution,
the holders of Senior Indebtedness of the Company and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article X so long as that court has been apprised of the provisions
of, or the order, decree or certificate makes reference to, the provisions of this Article X.






51









 








SECTION 10.06 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice.




          The Trustee shall not at any time be charged with knowledge of the existence of any facts that
would prohibit the making of any payment to or by the Trustee unless and until a Responsible
Officer of the Trustee or any Paying Agent shall have received, no later than two Business Days
prior to that payment, written notice thereof from the Company or from one or more holders of
Senior Indebtedness of the Company or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be
entitled in all respects conclusively to assume that no such fact exists.




SECTION 10.07 Application by Trustee of Amounts Deposited with It.




          Amounts deposited in trust with the Trustee pursuant to and in accordance with Article VIII
shall be for the sole benefit of Holders of the Securities of the series for the benefit of which
those amounts were deposited, and, to the extent allocated for the payment of Securities of that
series, shall not be subject to the subordination provisions of this Article X. Otherwise, any
deposit of assets with the Trustee or the Paying Agent (whether or not in trust) for the payment of
principal of, premium (if any) or interest on or any Additional Amounts with respect to any
Securities shall be subject to the provisions of Sections 10.01, 10.02, 10.03 and 10.04; provided
that if prior to two Business Days preceding the date on which by the terms of this Indenture any
such assets may become distributable for any purpose (including, without limitation, the payment of
either principal of, premium (if any) or interest on or any Additional Amounts with respect to any
Security), the Trustee or such Paying Agent shall not have received with respect to those assets
the written notice provided for in Section 10.06, then the Trustee or such Paying Agent shall have
full power and authority to receive those assets and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary that may be received by
it on or after that date; and provided further that nothing contained in this Article X shall
prevent the Company from making, or the Trustee from receiving or applying, any payment in
connection with the redemption of Securities if the first publication of notice of that redemption
(whether by mail or otherwise in accordance with this Indenture) has been made, and the Trustee has
received that payment from the Company, prior to the occurrence of any of the contingencies
specified in Section 10.02 or 10.03.




SECTION 10.08 Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of
Senior Indebtedness.




          No right of any present or future holders of any Senior Indebtedness of the Company to enforce
the subordination provisions contained in this Article X shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof that any such holder may have or be otherwise
charged with. The holders of Senior Indebtedness of the Company may extend, renew, modify or amend
the terms of the Senior Indebtedness or any security therefor and release, sell or exchange that
security and otherwise deal freely with the Company, all without affecting the liabilities and
obligations of the parties to this Indenture or the Holders of the Securities.






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SECTION 10.09 Trustee to Effectuate Subordination of Securities.




          Each Holder of a Security by his acceptance thereof authorizes and expressly directs the
Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the
subordination provisions contained in this Article X and to protect the rights of the
Holders of the Securities pursuant to this Indenture, and appoints the Trustee his
attorney-in-fact for that purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors of the Company), the filing of a
claim for the unpaid balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof of debt in the
form required in that proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of Senior Indebtedness of the Company or their representative is
hereby authorized to have the right to file and is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness of the Company or their representative
to authorize or consent to or accept or adopt on behalf of any Holder of Securities any plan of
reorganization, arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee or the holders of Senior Indebtedness of the
Company or their representative to vote in respect of the claim of any Holder of the Securities in
any such proceeding.




SECTION 10.10 Right of Trustee to Hold Senior Indebtedness.




          The Trustee in its individual capacity shall be entitled to all of the rights set forth in
this Article X in respect of any Senior Indebtedness of the Company at any time held by it to the
same extent as any other holder of Senior Indebtedness of the Company, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such holder.




SECTION 10.11 Article X Not to Prevent Events of Default.




          The failure to make a payment on account of principal of or premium (if any) or interest on or
any Additional Amounts with respect to the Securities by reason of any provision of this Article X
shall not be construed as preventing the occurrence of a Default or an Event of Default under
Section 6.01 or in any way prevent the Holders of the Securities from exercising any right
hereunder other than the right to receive payment on the Securities.




SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.




          The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company, and shall not be liable to any of those holders (other than for its
willful misconduct or gross negligence) if it shall in good faith mistakenly pay over or distribute
to the Holders of the Securities or the Company or any other Person, cash, property or securities
to which any holders of Senior Indebtedness of the Company shall be entitled by virtue of this
Article X or otherwise. Nothing in this Section 10.12 shall affect the obligation of any other
such Person to hold that payment for the benefit of, and to pay that payment over to, the holders
of Senior Indebtedness of the Company or their representative.




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SECTION 10.13 Article Applicable to Paying Agent.




          In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article X shall in that
case (unless the context shall otherwise require) be construed as extending to and including that
Paying Agent within its meaning as fully for all intents and purposes as if that Paying Agent were
named in this Article in addition to or in place of the Trustee; provided, however, that this
Section 10.13 shall not apply to the Company or any Affiliate of the Company if it or that
Affiliate acts as Paying Agent.




ARTICLE XI



GUARANTEES




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




ARTICLE XII



MISCELLANEOUS




SECTION 12.01 Trust Indenture Act Controls.




          If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
operation of TIA § 318(c), the imposed duties shall control.




SECTION 12.02 Notices.




          Any notice or communication by the Company or the Trustee to the other is duly given if in
writing and delivered in person or mailed by first-class mail (registered or certified, return
receipt requested), telex, facsimile or overnight air courier guaranteeing next day delivery, to
the other’s address:



If to the Company:


Encore Acquisition Company

777 Main Street, Suite 1400

Fort Worth, Texas 76102

Attention: General Counsel


If to the Trustee:


Wells Fargo Bank, National Association

505 Main Street

Suite 301

Fort Worth, Texas 76102



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






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          All notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.




          Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid,
to the Holder’s address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.




          If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except in the case of
notice to the Trustee, it is duly given only when received.




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




          All notices or communications, including without limitation notices to the Trustee or the
Company by Holders, shall be in writing, except as otherwise set forth herein.




          In case by reason of the suspension of regular mail service, or by reason of any other cause,
it shall be impossible to mail any notice required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute a sufficient
mailing of that notice.




SECTION 12.03 Communication by Holders with Other Holders.




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




SECTION 12.04 Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee at the expense of
the Company:





     (1) an Officers’ Certificate (which shall include the statements set forth in Section
11.05) stating that, in the opinion of the signers, all conditions precedent and covenants,
if any, provided for in this Indenture relating to the proposed action have been complied
with; and




     (2) an Opinion of Counsel (which shall include the statements set forth in Section
11.05 hereof) stating that, in the opinion of that counsel, all those conditions precedent
and covenants have been complied with.



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SECTION 12.05 Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:





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




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




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




     (4) a statement as to whether or not, in the opinion of that Person, that condition or
covenant has been complied with.



SECTION 12.06 Rules by Trustee and Agents.




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




SECTION 12.07 Legal Holidays.




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




SECTION 12.08 No Recourse Against Others.




          A director, officer, employee, stockholder, partner or other owner of the Company, any
guarantor or the Trustee (other than a stockholder, partner or other owner which itself is the
Company or a guarantor of the Securities), as such, shall not have any liability for any
obligations of the Company under the Securities or for any obligations of the Company, any
guarantor or the Trustee under this Indenture or for any claim based on, in respect of or by reason
of those obligations or their creation. Each Holder by accepting a Security waives and releases
all that liability. The waiver and release shall be part of the consideration for the issue of
Securities.




SECTION 12.09 Governing Law.




          THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF







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LAWS
THEREUNDER TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.




SECTION 12.10 No Adverse Interpretation of Other Agreements.




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




SECTION 12.11 Successors.




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




SECTION 12.12 Severability.




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




SECTION 12.13 Counterpart Originals.




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




SECTION 12.14 Table of Contents, Headings, etc.




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




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




	 	 	 	 	 
	 	 	Encore Acquisition Company
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Louie B. Nivens, Jr.
	 

	 	 	 	 
	 

	 	 	 	Louie B. Nivens, Jr.
	 

	 	 	 	Senior Vice President, Chief Financial Officer,
	 

	 	 	 	Treasurer and Corporate Secretary
	 
	 	 	 	 
	 	 	Wells Fargo Bank, National Association
	 	 	as Trustee
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Melissa Scott
	 

	 	 	 	 
	 

	 	 	 	Melissa Scott
	 

	 	 	 	Vice President







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