**EXHIBIT 4.A**  ***ANR Pipeline Company*****and****Manufacturers Bank, N.A., Trustee** **INDENTURE****Dated as of May 13, 1991**   

 

 **Debt Securities****CROSS-REFERENCE TABLE**         **Indenture****TIA Section**   **Section**Section 310 (a)(1) 7.10  (a)(2) 7.10  (a)(3) N.A.  (a)(4) N.A.  (a)(5) 7.08  (b) 7.08; 7.10; 10.02  (c) N.A.Section 311 (a) 7.11  (b) 7.11  (c) N.A.Section 312 (a) 2.06  (b) 10.03  (c) 10.03Section 313 (a) 7.06  (b)(1) N.A.  (b)(2) 7.06  (c) 7.06;10.02  (d) 7.06Section 314 (a) 4.09; 10.02  (b) N.A.  (c)(1) 10.04  (c)(2) 10.04  (c)(3) N.A.  (d) N.A.  (e) 10.05  (f) N.A.Section 315 (a) 7.01(b)  (b) 7.05;10.02  (c) 7.01(a)  (d) 7.01(c)  (e) 6.11Section 316 (a)(last sentence) 2.10  (a)(1)(A) 6.05  (a)(1)(B) 6.04  (a)(2) N.A.  (b) 6.07  (c) 9.04Section 317 (a)(1) 6.08  (a)(2) 6.09  (b) 2.05Section 318 (a) 10.01 N.A. means Not Applicable.NOTE: This Cross-Reference Table shall not, for any purpose, bedeemed to be a part of this Indenture.

 

 **TABLE OF CONTENTS**       **Page**Recitals of the Company  1      **ARTICLE 1**     Definition and Incorporation by Reference         Section 1.01. Definitions  1 Section 1.02. Incorporation by Reference of Trust Indenture Act  9 Section 1.03. Rules of Construction  9      **ARTICLE 2**     The Securities         Section 2.01. Form of Securities  10 Section 2.02. Title and Terms  11 Section 2.03. Execution and Authentication  12 Section 2.04. Registrar and Paying Agent  14 Section 2.05. Paying Agent to Hold Money In Trust  15 Section 2.06. Securityholder Lists  15 Section 2.07. Transfer and Exchange  16 Section 2.08. Replacement Securities  16 Section 2.09. Outstanding Securities  17 Section 2.10. Treasury Securities  17 Section 2.11. Temporary Securities  17 Section 2.12. Cancellation  18 Section 2.13. Defaulted Interest  18 Section 2.14. Persons Deemed Owners  18      **ARTICLE 3A**     Redemption         Section 3A.01. Right of Redemption  19 Section 3A.02. Applicability of Article  19 Section 3A.03. Election to Redeem; Notice to Trustee  19 Section 3A.04. Selection by Trustee of Securities to be Redeemed  19 Section 3A.05. Notice of Redemption  20 Section 3A.06. Deposit of Redemption Price  21 Section 3A.07. Securities Payable on Redemption Date  21 Section 3A.08. Securities Redeemed in Part  21      **ARTICLE 3B**     Sinking Fund    

 

ii       **Page**Section 3B.01. Sinking Fund Payments  22 Section 3B.02. Satisfaction of Sinking Fund Payments with Securities  22 Section 3B.03. Redemption of Securities for Sinking Fund  23      **ARTICLE 4**     Covenants         Section 4.01. Payment of Securities  23 Section 4.02. Maintenance of Office or Agency  24 Section 4.03. Corporate Existence  24 Section 4.04. Payment of Taxes and Other Claims  25 Section 4.05. Notice of Defaults  25 Section 4.06. Maintenance of Properties  25 Section 4.07. Liquidation  26 Section 4.08. Compliance Certificate  27 Section 4.09. SEC Reports  27 Section 4.10. Waiver of Stay, Extension or Usury Laws  28 Section 4.11. Restrictions on Liens  28 Section 4.12. Restrictions on Sales and Leasebacks  30      **ARTICLE 5**     Successor Corporation         Section 5.01. When Company May Merge, etc.  30 Section 5.02. Successor Corporation Substituted  31      **ARTICLE 6**     Default And Remedies         Section 6.01. Events of Default  31 Section 6.02. Acceleration  33 Section 6.03. Other Remedies  34 Section 6.04. Waiver of Past Defaults  35 Section 6.05. Control by Majority  35 Section 6.06. Limitation on Suits  35 

 

iii       **Page**Section 6.07. Rights of Holders to Receive Payment  36 Section 6.08. Collection Suit by Trustee  36 Section 6.09. Trustee May File Proofs of Claim  36 Section 6.10. Priorities  37 Section 6.11. Undertaking for Costs  37      **ARTICLE 7**     Trustee         Section 7.01. Duties of Trustee  38 Section 7.02. Right of Trustee  39 Section 7.03. Individual Rights of Trustee  40 Section 7.04. Trustee’s Disclaimer  40 Section 7.05. Notice of Defaults  40 Section 7.06. Reports by Trustee to Holders  40 Section 7.07. Compensation and Indemnity  41 Section 7.08. Replacement of Trustee  41 Section 7.09. Successor Trustee by Merger, etc.  43 Section 7.10. Eligibility, Disqualification  43 Section 7.11. Preferential Collection of Claims Against Company  43      **Article 8**     Discharge Of Indenture          Section 8.01. Termination of Company’s Obligations  43 Section 8.02. Application of Trust Money  45 Section 8.03. Repayment to Company  45 Section 8.04. Reinstatement  45 Section 8.05. Indemnity for U.S. Government Obligations  46      **ARTICLE 9**     Amendments, Supplements And Waivers         Section 9.01. Without Consent of Holders  46 Section 9.02. With Consent of Holders  47 Section 9.03. Compliance With Trust Indenture Act  48 Section 9.04. Revocation and Effect of Consents  48 Section 9.05. Notation On or Exchange of Securities  49 Section9.06. Trustee to Sign Amendments, etc.  49 

 

iv       **Page****ARTICLE 10**     Miscellaneous         Section10.01. Trust Indenture Act Controls  50 Section10.02. Notices  50 Section 10.03. Communications by Holders With Other Holders  51 Section 10.04. Certificate and Opinion as to Conditions Precedent  51 Section 10.05. Statements Required in Certificate or Opinion  51 Section 10.06. Rules by Trustee, Paying Agent, Registrar  51 Section 10.07. Legal Holidays  52 Section 10.08. Governing Law  52 Section 10.09. No Adverse Interpretation of Other Agreements  52 Section 10.10. No Recourse Against Others  52 Section 10.11. Successors  52 Section 10.12. Duplicate Originals  52 Section 10.13. Separability  52 Section 10.14. Action of Holders when Securities are Denominated in Different Currencies  53 Section 10.15. Monies of Different Currencies to be Segregated  53 Section 10.16. Payment to be in Proper Currency  53      Signatures  55      Exhibit A—Form of Security  A-1  NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part ofthis Indenture.     INDENTURE, dated as of May 13, 1991, between ANR PipelineCompany, a Delaware corporation (the “Company”), and ManufacturersBank, N.A. (formerly Manufacturers National Bank of Detroit), a national banking associationincorporated and existing under the laws of the United States of America, as Trustee (the“Trustee”).**RECITALS OF THE COMPANY**     The Company has duly authorized the execution and delivery of this Indenture to provide forthe issuance from time to time of its unsecured notes, debentures or other evidences ofindebtedness (collectively, the “Securities”), to be issued from time to time in one or more series(a “Series”) as provided in this Indenture and as shall be provided*,*in respect of any Series, inor pursuant to the Authorizing Resolution hereinafter referred to and/or in the indenturesupplemental hereto (if any) relating to such Series.

 

  2**ARTICLE 1**Definition and Incorporation by Reference     Section 1.01. *Definitions*.     “Affiliate” of any specified person means any other person directly or indirectly controllingor controlled by or under direct or indirect common control with such specified person. For thepurposes of this definition, “control” when used with respect to any person means the power todirect the management and policies of such person, directly or indirectly, whether through the ownership of votingsecurities, by contract or otherwise; and the terms “controlling” and “controlled” have meaningscorrelative to the foregoing.     “Agent” means any Registrar, Paying Agent or co-Registrar.     “Attributable Debt” means, with respect to any Sale and Leaseback Transaction as of anyparticular time, the present value (discounted at the rate of interest implicit in the terms of thelease) of the obligations of the lessee under such lease for net rental payments during theremaining term of the lease (including any period for which such lease has been extended or may, atthe option of the Company, be extended).     “Authorizing Resolution” means a Board Resolution providing for the issuance of a Series ofSecurities.     “Bankruptcy Law” shall have the meaning provided in Section 6.01.

 

3     “Board of Directors” means the Board of Directors of the Company or any duly authorizedcommittee of the Board.     “Board Resolution” means a copy of a resolution certified by the Secretary or an AssistantSecretary of the Company to have been duly adopted by the Board of Directors and to be in fullforce and effect on the date of such certification, and delivered to the Trustee (except asprovided in Section 2.03).     “Business Day” means a day that is not a Legal Holiday.     “Capital Stock” means, with respect to any person, any and all shares, interests,participations or other equivalents (however designated) of corporate stock of such person otherthan Mandatory Redemption Preferred Stock.     “Capitalized Lease Obligation” means Indebtedness represented by obligations under a leasethat is required to be capitalized for financial reporting purposes in accordance with generallyaccepted accounting principles and the amount of such Indebtedness shall be the capitalized amountof such obligations determined in accordance with such principles.     “Company” means the party named as such in this Indenture until a successor replaces itpursuant to this Indenture and thereafter means the successor.     “Company Request” and “Company Order” mean, respectively, a written request or order signed inthe name of the Company by two Officers of the Company or by an Officer and the Treasurer, anAssistant Treasurer, the Secretary or an Assistant Secretary, and delivered to the Trustee inrespect of the Series to which the Company Request or Company Order shall relate.     “Custodian” shall have the meaning provided in Section 6.01.     “Default” means any event which is, or after notice or passage of time wouldbe, an Event of Default.     “Event of Default” shall have the meaning provided in Section 6.01.     “Extendible Securities” means Securities of any Series issued hereunder thefinal maturity of which is extendible for a stated period of time, as shall beprovided in, or pursuant to, the Authorizing Resolution and/or supplemental indenture (if any)relating to such Series.

 

4     “Funded Debt” means Indebtedness which does not mature within one year after the date as ofwhich any determination thereof is made (but excludes any such Indebtedness which will be retiredthrough or by means of any depositor payment required to be made within one year from such date under any prepayment provision,sinking fund, purchase fund or other similar fund) and Indebtedness which may not mature within oneyear after the date as of which any determination thereof is made due solely to such Indebtednessbeing renewable or outstanding pursuant to a revolving credit or similar agreement.     “General Mortgage” means the Company’s Mortgage and Deed Trust dated as of September 1, 1948,as supplemented and amended from time to time, and any other mortgage and deed of trust upon theproperty of the Company which may hereafter from time to time be created by the Company insubstitution, directly or indirectly, for said Mortgage and Deed of Trust, as from time to timesupplemented and amended; provided that any such mortgage and deedof trust hereafter created shall contain provisions with respect to property excepted from thelien thereof and liens permitted thereunder substantially similar to (but not necessarily identicalto) the provisions of said Mortgage and Deed of Trust, as supplemented and amended at the datehereof.     “Holder” or “Securityholder” means, with respect to any Security, the person in whose namesuch Security is registered on the Security Register.     “Indebtedness” means (i) any liability of any person (a) for borrowed money, (b) evidenced bya note, debenture or similar instrument (including a purchase money obligation) given in connectionwith the acquisition of any property or assets (other than inventory or similar property acquiredin the ordinary course of business), including securities, or (c) for the payment of money relatingto a Capitalized Lease Obligation; (ii) any guarantee by any person of any liability of othersdescribed in the preceding clause (i); and (iii) any amendment, renewal, extension of refunding ofany liability of the types referred to in clauses (i) and (ii) above.     “Indenture” means this Indenture as amended or supplemented from timeto time and shall include the forms and terms of particular Series of Securities establishedas contemplated hereunder.     “Interest Payment Date” means, for any Series of Securities issued and outstanding hereunder,the date or dates in each year on which any intereston such Series is paid or made available for payment.

 

5     “Legal Holiday” shall have the meaning provided in Section 10.07.     “Lien” means any mortgage, lien, pledge, charge, or other security interest or encumbrance ofany kind.     “Mandatory Redemption Preferred Stock” means, with respect to any person, any and all sharesof preferred stock of such person now outstanding or hereafter issued, subject to mandatoryredemption provisions.     “Maturity” when used with respect to any Security means the date on whichthe principal of such Security becomes due and payable as therein or herein provided, whetherat the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.     “Maturity Date” means the date specified in each Security on which the principal thereof isdue and payable in full.     “Net Tangible Assets” means the total amount of assets (less depreciation and valuationreserves and other reserves and items deductible from the gross book value of specific assetaccounts) of the Company which would be included on a consolidated balance sheet of the Company,after deducting therefrom (without duplication of deductions) (1) all goodwill, trade names,trademarks, patents, unamortized debt discount and expense and other like intangibles which wouldbe so included on such balance sheet, and (2) all liabilities which would be so included on suchbalance sheet except: Funded Debt, reserves, deferred credits and Stock Accounts.     “Officer” means the Principal Executive Officer, Principal Financial Officeror Principal Accounting Officer of the Company.     “Officers’ Certificate” means a certificate signed by two Officers or by an Officer and theTreasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company anddelivered to the Trustee. See Sections 10.04 and 10.05.     “Opinion of Counsel” means a written opinion from legal counsel who is acceptable to theTrustee. The counsel may be an employee of or counsel to the Company. See Sections 10.04 and10.05.     “Original Issue Date” means the date on which a Security is issued to the original purchaserthereof, as specified in such Security.

 

6     “Original Issue Discount Securities” means Securities which provide for an amount less than100% of the principal amount thereof to be due and payable upon a declaration of acceleration ofthe Maturity thereof pursuant to Section 6.02.     “Paying Agent” shall have the meaning provided in Section 2.04, exceptthat for the purposes of Article 8 and Section 4.07 the Paying Agent shall not be the Companyor any Subsidiary.     “Permitted Liens” means the following:     (a) Liens upon rights-of-way for pipeline purposes;     (b) undetermined Liens and charges incidental to construction or maintenance;     (c) the right reserved to, or vested in, any municipality or public authority by the termsof any right, power, franchise, grant, license, permit or by any provision of law, to terminatesuch right, power, franchise, grant, license or permit, or to purchase or recapture or todesignate a purchaser of, any ofthe mortgaged property;     (d) Liens upon any property in which the Company has a leasehold estate and to which suchleasehold estate is or may become subject, and the rights reserved to lessors of such property,and to their successors and assigns, under applicable law or the instrument creating suchleasehold estate;     (e) the Lien of taxes and assessments (other than those constituting Liens uponrights-of-way for pipe line purposes) which are not at the time delinquent;     (f) the Lien of specified taxes and assessments (other than those constituting liens uponrights-of-way for pipe line purposes) which are delinquent but the validity of which is beingcontested at the time by the Company in good faith, unless thereby in the opinion of counsel orof the trustee under the General Mortgage any of the mortgaged property thereunder may be lostor forfeited;     (g) the Lien reserved in leases for rent and for compliance with the terms of the lease inthe case of leasehold estates;     (h) minor defects and irregularities in the titles to any property which do not materiallyimpair the use of such property for the purposes for which itis held by the Company;     (i) any Liens securing indebtedness, neither assumed nor guaranteed by the Company nor onwhich it customarily pays interest, existing upon real estate or rights in or relating to realestate (including rights-of-way and easements) acquired by the Company for pipeline, meteringstation or right-of-way purposes;

 

7     (j) easements, exceptions or reservations in any property of the Company granted orreserved for the purpose of pipe lines, roads, the removal of oil, gas, coal or other minerals,and other like purposes, or for the joint or common use of real property, facilities andequipment, which do not materially impair the use of such property for the purposes for whichit is held by the Company;     (k) rights reserved to or vested in any municipality or public authority to control orregulate any property of the Company, or to use such property in any manner which does notmaterially impair the use of such property forthe purposes for which it is held by the Company;     (1) any obligations or duties, affecting the property of the Company, to any municipalityor public authority with respect to any franchise, grant, license or permit;     (m) the Liens of any judgments in an aggregate amount not in excess of 1,000,000 UnitedStates dollars or the Lien of any judgment the executionof which has been stayed or which has been appealed and secured, if necessary, by thefiling of an appeal bond, or the Lien of any judgment in respect of which monies in the amountof the judgment have been deposited withthe trustee under the General Mortgage to be held as a part of the trustestate and to be withdrawn only as provided in §8.05 of the General Mortgage; and     (n) zoning laws and ordinances.     “person” means any individual, corporation, partnership, joint venture, association,joint-stock company, trust, unincorporated organization or government or other agency or politicalsubdivision thereof.     “principal” of a debt security means the principal of the security plus, when appropriate, thepremium, if any, on the security.     “Principal Domestic Property of the Company,, shall mean any property, plant, equipment orfacility of the Company which is located in the United States or any territory or politicalsubdivision thereof, except any property which the Board of Directors or management of the Companyor any such Subsidiary shall determine to be not material to the business or operations of theCompany and its Subsidiaries, taken as a whole.     “Redeemable Securities” means Securities of any Series which may be redeemed, at the option ofthe Company, prior to the Stated Maturity thereof,on the terms specified in or pursuant to the Authorizing Resolution and/or supplementalindenture relating to such Series and in accordance with Article 3A herein.

 

8     “Redemption Date” when used with respect to any Security of any Series to be redeemed meansthe date fixed for such redemption by or pursuant to the provisions of such Security, thisIndenture and the Authorizing Resolution and/or supplemental indenture relating to such Security.     “Redemption Price” when used with respect to any Security of any Seriesto be redeemed means the price at which it is to be redeemed pursuant to the provisions ofsuch Security, this Indenture and the Authorizing Resolution and/or supplemental indenture relatingto such Security.     “Registrar” shall have the meaning provided in Section 2.04.     “Regular Record Date” means, for the interest payable on any Interest Payment Date in respectof any Series of Securities, except as provided in, or pursuant to, the Authorizing Resolutionand/or supplemental indenture relating thereto, the day (whether or not a Business Day) that is fifteen days preceding theapplicable Interest Payment Date.     “Required Currency,, shall have the meaning provided in Section 10.16.     “Sale and Leaseback Transaction” shall have the meaning provided in Section 4.12.     “SEC” means the Securities and Exchange Commission.     “Securities” means the Securities, as amended or supplemented from timeto time pursuant to the terms of this Indenture, of the Company of any Series that are issuedunder this Indenture.     “Security Register” shall have the meaning provided in Section 2.04.     “Series” means, with respect to Securities issued hereunder, the Securities issued pursuant toany particular Authorizing Resolution and/or supplemental indenture (if any), subject to the right of the Board of Directors to specify in suchAuthorizing Resolution and/or supplemental indenture (if any) that such Securities shall constitutemore than one Series.     “Short-Term Borrowing” means all Indebtedness in respect of borrowed money maturing on demandor within one year from the date of the creation thereof and not directly or indirectly renewableor extendible, at the option of the debtor, by its terms or by the terms of any instrument oragreementrelating thereto, to a date one year or more from the date of the creation

 

9thereof; *provided,*that Indebtedness in respect of borrowed money arising under a revolving creditor similar agreement which obligates the lender or lenders to extend credit over a period of oneyear or more shall constitute Funded Debt and not Short-Term Borrowing even though the same matureson demand or within one year from the date as of which such Short-Term Borrowing is to bedetermined.     “Sinking Fund” means, with respect to any Sinking Fund Securities, a sinking fund provided forin Article 3B.     “Sinking Fund Securities” means Securities of any Series which are required to be redeemedfrom time to time prior to the Stated Maturity thereof in whole or in part under a Sinking Fund, onthe terms specified in the Authorizing Resolution and/or supplemental indenture (if any) relatingto such Series andin accordance with Article 3B herein.     “Special Record Date” shall have the meaning provided in Section 2.13.     “Stated Maturity” when used with respect to any Security or any installment of interest thereon means the date specified in such Security as the fixed date on whichthe principal of such Security or such installment of interest is due and payable.     “Stock” means any and all shares, interests, participations or other equivalents (howeverdesignated) of corporate stock.     “Stock Accounts”, as applied to a corporation, means the amount of such corporation’soutstanding Stock, other paid-in capital and retained earnings,all as shown in a statement of financial position of such corporation.     “Subsidiary” means (i) a corporation a majority of whose capital stock with voting power,under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned bythe Company, by the Company and a Subsidiary (or Subsidiaries) of the Company or by a Subsidiary(or Subsidiaries) of the Company or (ii) any other person (other than a corporation) in which theCompany, a Subsidiary (or Subsidiaries) of the Company or the Company and a Subsidiary (orSubsidiaries) of the Company, directly or indirectly, at the date of determination thereof has atleast majority ownership interest; *provided,*that no corporation shall be deemed a Subsidiary untilthe Company, a Subsidiary (or Subsidiaries) of the Company or the Company and a Subsidiary (orSubsidiaries) of the Company acquires more than 50% of the outstanding voting stock thereof and haselected a majority of its board of directors.

 

10     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on thedate of this Indenture except as provided in Section 9.03.     “Trustee” means the party named as such in this Indenture until a successor replaces it inaccordance with the provisions of this Indenture and thereafter means and includes the person oreach 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 shall mean the Trustee with respectto Securities of that Series.     “Trust Officer” means any officer or assistant officer of the Trustee assigned by the Trusteeto administer its corporate trust matters.     “U.S. Government Obligations” shall have the meaning provided in Section 8.01.     “Yield to Maturity” means, with respect to any Series of Securities, the yield to maturitythereof, calculated at the time of issuance thereof, or, if applicable, at the most recentredetermination of interest thereon, and calculated in accordance with accepted financial practice.     Section1.02.*Incorporation by Reference of Trust Indenture Act.*     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated byreference in and made a part of this Indenture. The following TIA terms used in this Indenturehave the following meanings:     “Commission” means the SEC;     “indenture securities” means the Securities;     “indenture security holder” means a Securityholder;     “indenture to be qualified” means this Indenture;     “indenture trustee” or “institutional trustee” means the Trustee; and     “obligor” on the indenture securities means the Company or any other obligor on theSecurities.     All other TIA terms used in this Indenture that are defined by the TIA, defined by TIAreference to another statute or defined by SEC rule and not otherwise defined herein have themeanings assigned to them therein.     Section 1.03.*Rules of Construction*.     Unless the context otherwise requires:     (1) a term has the meaning assigned to it;

 

11     (2) an accounting term not otherwise defined has the meaning assignedto it in accordance with generally accepted accounting principles in effecton the date hereof, and any other reference in this Indenture to “generally acceptedaccounting principles” refers to generally accepted accounting principles on the date hereof;     (3) “or” is not exclusive;     (4) words in the singular include the plural, and words in the plural include the singular;     (5) provisions apply to successive events and transactions; and     (6) “herein,” “hereof’ and other words of similar import refer to this Indenture as a wholeand not to any particular Article, Section or other Subdivision.**ARTICLE 2**The Securities     Section 2.01.*Form of Securities*.     The Securities of each Series and the certificate of authentication thereon shall be insubstantially the forms set forth in Exhibit A or in such other forms as shall be specified in, orpursuant to, the Authorizing Resolution and/or inthe indenture supplemental hereto (if any) relating to such Series, with such appropriateinsertions, omissions, substitutions and other variations as are required or permitted by thisIndenture or the said Authorizing Resolution and/or supplemental indenture (if any).     The definitive Securities of each Series shall be printed, lithographed or engraved orproduced by any combination of these methods on steel engraved borders or may be produced in anyother manner permitted by the rules ofany securities exchange on which the Securities may be listed, or, if they shall not be listedon any securities exchange, in any other manner consistent herewith, all as shall be determined bythe officers executing such Securities, as evidenced by their execution of such Securities. TheSecurities may have notations, legends or endorsements required by law, stock exchange rule orusage. The Company shall approve the form of the Securities and any notation,legend or endorsement on them.     The terms and provisions contained in the Securities, annexed hereto as Exhibit A or suchother forms as specified in the Authorizing Resolution and/or supplemental indenture (if any)relating thereto, shall constitute, andare hereby expressly made, a part of this Indenture.

 

12     Section 2.02.*Title and Terms*.     The aggregate principal amount of Securities which may be authenticated and delivered underthis Indenture is unlimited.     The Securities may be issued in one or more Series. The terms of each Series shall be asprovided in an Authorizing Resolution and/or supplemental indenture (if any) or shall be determinedin the manner specified therein. The terms to be specified in respect of each Series in theAuthorizing Resolution and/or supplemental indenture (if any), or by such person and/or proceduresas shall be provided therein, shall include the following:     (1) the title of the Securities of such Series, which shall distinguish such Series fromall other Series;     (2) the aggregate principal amount of the Securities of such Series which may beauthenticated and delivered under this Indenture (except for Securities of such Seriesauthenticated and delivered upon transfer of, or in exchange for, or in lieu of, otherSecurities pursuant to Section 2.07, 2.08, 2.11, 3A.08 or 9.05);     (3) the date or dates on which the principal of the Securities of such Series is payable,and, if the Series shall be Extendible Securities, the terms on which the Company or any otherperson shall have the option to extend the Maturity of such Securities and the rights, if any,of the Holders to require payment of the Securities;     (4) the rate or rates at which the Securities of such Series shall bear interest, if any(whether floating or fixed), the provisions, if any, for determining such interest rate or ratesand adjustments thereto, the date or dates from which such interest shall accrue, the InterestPayment Dates therefor and the Regular Record Dates (if different from those provided in theform of Security herein set forth) for the determination of Holders of the Securities of suchSeries to whom interest is payable;     (5) the place or places where the principal of and interest on Securities of such Seriesshall be payable (if other than as provided in Section 4.02);     (6) the price or prices at which, the period or periods within which and the terms andconditions upon which the Securities of such Series may be redeemed, in whole or in part, at theoption of the Company, pursuant to a Sinking Fund or otherwise;     (7) the obligation, if any, of the Company to redeem, purchase or repay Securities of suchSeries, in whole or in part, pursuant to a Sinking Fund or otherwise or at the option of aHolder thereof, and the price or prices at which, the period or periods within which and theterms and conditionsupon which such redemption, purchase or repayment shall be made;

 

13     (8) any Events of Default with respect to the Securities of such Series which may bedifferent from or in addition to those provided for herein, and any covenants or obligations ofthe Company to the Holders of the Securities of such Series different from or in addition tothose set forth herein;     (9) if less than 100% of the principal amount of the Securities of such Series is payableon acceleration under Section 6.02 or provable in bankruptcy under Section 6.09 at any time, aschedule of or the manner of computing the amounts which are so payable and provable from timeto time;     (10) the farm of the Securities of such Series (which may be, but which need not be,consistent with the form set forth in Exhibit A attached hereto);     (11) if other than United States dollars, the currency(ies) in which payment of theprincipal of or interest, if any, on the Securities of that Series shall be payable;     (12) if the principal of or interest, if any, on the Securities of that Seriesis to be payable, at the election of the Company or a Holder thereof, in a currency orcurrencies other than that in which the Securities are stated tobe payable, the period or periods within which, and the terms and conditions upon which,such election may be made;     (13) if the amount of payments of principal of (and premium, if any) or interest, if any,on the Securities of the Series may be determined with reference to an index based on a currencyor currencies other than that in which the Securities are stated to be payable, the manner inwhich such amounts shall be determined; and     (14) any other terms of the Securities of such Series; *provided,*that such other termsshall not be inconsistent with any express terms of this Inden-ture or in conflict with any express terms of any other Series of Securities which shall beissued and outstanding.     All Securities of any one Series shall be substantially identical in form except as todenomination and except as may be otherwise provided in and pursuantto the Authorizing Resolutions and/or supplemental indenture (if any) relating thereto.     Section 2.03. *Execution and Authentication*.     Two Officers or an Officer and the Secretary of the Company shall sign the Securities for theCompany by manual or facsimile signature. The Company’s seal shall be reproduced on the Securitiesand may be in facsimile form.     If an Officer or a Secretary whose signature is on a Security no longer holds that office atthe time the Trustee authenticates the Security, the Security shall be valid nevertheless.

 

14     A Security shall not be valid until the Trustee manually signs the certificate ofauthentication on the Security. The signature shall be conclusive evidence that the Security hasbeen authenticated under this Indenture.     At any time and from time to time after the execution and delivery of this Indenture, theCompany may deliver Securities of any Series executed by the Company to the Trustee, together witha Company Order for the authentica-tion and delivery of such Securities. The Company Order may provide thatthe Securities which are the subject thereof shall be authenticated and deliv-ered by the Trustee upon the telephonic, written or other order of persons designated in theCompany Order, and that such persons are authorized to specify the terms and conditions of suchSecurities, to the extent permitted by the Authorizing Resolution and/or supplemental indenture (ifany) relating thereto. The Trustee shall execute and deliver the supplemental indenture (if any)relating to said Securities and the Trustee shall authenticate and deliver said Securities asspecified in such Company Order; *provided*that, prior to authentication and delivery of the firstSecurities of any Series, the Trustee shall have received:     (1) a copy of the Authorizing Resolution, with a copy of the form of Security approvedthereby attached thereto, or a supplemental indenture in respect of the issuance of the Series,executed on behalf of the Company;     (2) an Officers’ Certificate to the effect that the Securities of such Series comply orwill comply with the requirements of this Indenture and the said Authorizing Resolution and/orsupplemental indenture (if any);     (3) an Opinion of Counsel (a) to the effect that (i) the Securities of such Series, theAuthorizing Resolution and/or the supplemental indenture (if any) relating thereto comply orwill comply with the requirements of this Indenture, and (ii) the Securities of such Series,when authenticated and delivered by the Trustee in accordance with the said Company Order, willconstitute valid and binding obligations of the Company enforceable in accordance with theirterms, subject to (A) bankruptcy and other laws affecting creditors’ rights generally as ineffect from time to time, (B) limitations of generally applicable equitable principles and (C)other exceptions acceptable to the Trustee and its counsel; and (b) relating to such othermatters as may reasonably be requested by the Trustee or its counsel; and     (4) if the Securities to be issued are Original Issue Discount Securities,an Officers’ Certificate setting forth the Yield to Maturity for the Securities or otherinformation sufficient to compute amounts due on acceleration, or specifying the manner in whichsuch amounts are to be determined, provided that such Yield to Maturity and other facts are notspecified in the form of the Securities.

 

15     Subject to Section 7.01 hereof, the Trustee shall be fully protected in relying upon thedocuments delivered to it as provided above in connection with the issuance of any Series ofSecurities.     The Trustee shall have the right to decline to authenticate and deliver any Securities underthis Section 2.03 if the Trustee, being advised by counsel, determines that such action may notlawfully be taken or if the Trustee in good faith shall determine that such action would expose theTrustee to liability to Holders of previously issued and outstanding Securities.     Each Security shall be dated the date of its authentication unless otherwise specified in theAuthorizing Resolution and/or supplemental indenture relating thereto.     The Trustee may appoint an authenticating agent reasonably acceptable to the Company toauthenticate Securities. An authenticating agent may authenticate Securities whenever the Trusteemay do so. Each reference in this Indenture to authentication by the Trustee includesauthentication by suchagent. An authenticating Agent has the same rights as an Agent to deal with the Company or anAffiliate of the Company     The Securities of each Series shall be issuable only in registered form without coupons andonly in denominations of $1,000 and any integral multiple thereof, or in such other currencies ordenominations as may be specified in, or pursuant to, the Authorizing Resolution and/orsupplemental indenture (ifany) relating to the Series.     Section 2.04.*Registrar and Paying Agent*.     The Company shall cause to be kept a register (the “Security Register”) atan office or agency where Securities may be presented for registration of transfer or forexchange (“Registrar”) and an office or agency where Securities may be presented for payment(“Paying Agent”). The Company may have one or more co-Registrars and one or more additional payingagents. The term “Paying Agent” includes any additional paying agent.     The Company shall enter into an appropriate agency agreement with any Agent not a party tothis Indenture. The agreement shall implement the provisions of this Indenture that relate to suchAgent. The Company shall give prompt written notice to the Trustee of the name and address of anysuch Agent and the Trustee shall have the right to inspect the Security Register atall reasonable times and to obtain copies thereof. If the Registrar shall not be

 

16the Trustee in respect of any Series, the Company shall promptly notify the Registrar as to theamounts and terms of each Security of such Series which shall be authenticated and deliveredhereunder, and as to the names in which such Securities shall be registered. If the Company failsto maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled toappropriate compensation therefor pursuant to Section 7.07.     The Company initially appoints the Trustee as Registrar and Paying Agent.     Section 2.05.*Paying Agent to Hold Money In Trust*.     Each Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee allmoney held by the Paying Agent for the payment of principalof or interest on the Securities (whether such money has been paid to it by the Company or anyother obligor on the Securities), and shall notify the Trustee of any default by the Company (orany other obligor on the Securities) in making any such payment. If the Company or a Subsidiaryacts as Paying Agent, it shall segregate the money and hold it as a separate trust fund. TheCompany at any time may require a Paying Agent to pay all money held by it to the Trustee andaccount for any funds disbursed and the Trustee may atany time during the continuance of any payment default, upon written request to a PayingAgent, require such Paying Agent to pay all money held by it tothe Trustee and to account for any funds disbursed. Upon doing so the Paying Agent shall haveno further liability for the money.     Section 2.06.*Securityholder Lists*     The Trustee shall preserve in as current a form as is reasonably practicable the most recentlist furnished to it of the names and addresses of Securityholders. If the Trustee is not theRegistrar, the Company shall furnish to the Trustee ten days before each Interest Payment Date andat such other timesas the Trustee may request in writing a list in such form and as of such date as the Trusteemay reasonably require of the names and addresses of Holders of Securities of any Series and theCompany shall otherwise comply with Section 312(a) of the TIA.     The Trustee shall be entitled to rely upon a certificate of the Registrar, the Company or suchother Paying Agent, as the case may be, as to the namesand addresses of the Holders of Securities of any Series and the principal amounts and serialnumbers of such Securities.

 

17     Section 2.07.*Transfer and Exchange*.     When Securities are presented to the Registrar or a co-Registrar with a request to registerthe transfer or to exchange them for an equal principal amount of Securities of the same Series andStated Maturity of other authorized denominations, the Registrar shall register the transfer ormake the exchange as requested if its requirements for such transactions are met. To permitregistrations of transfers and exchanges, the Company shall executeand the Trustee shall authenticate Securities at the Registrar’s request. No service chargeshall be made to any Holder for any registration of transfer or exchange, but the Company or theTrustee may require payment of a sum sufficient to cover any transfer tax or similar governmentalcharge payable in connection therewith (other than any such transfer taxes or similar governmentalcharge payable upon exchanges pursuant to Section 2.11, 3A.08 or 9.05 in which case such transfertaxes or similar governmental charges shall be paid by the Company).     The Company shall not be required (i) to issue, register the transfer of or exchange anySecurity of any Series during a period beginning at the opening of the day which is 15 BusinessDays before the day of the mailing of a notice of redemption of Securities of such Series selectedfor redemption under Section 3A.04 or 3B.01 and ending at the close of business on the day of suchmailing, or (ii) to register the transfer of or exchange any Security so selected for redemption inwhole or in part, except, in the case of any Security to be redeemed in part, the portion thereofnot to be redeemed.     Section 2.08.*Replacement Securities*.     If a mutilated Security is surrendered to the Trustee or if the Holder of a Security claimsthat the Security has been lost, destroyed or wrongfully taken, the Company shall issue and theTrustee shall authenticate a replacement Security of like tenor, Series and principal amount,bearing a number not assigned to any Security of the same Series then outstanding, if the Trustee’srequirements are met. If required by the Trustee or the Company, an indemnity bond must besufficient in the judgment of the Trustee to protect the Company, the Trustee or any Agent from anyloss which any of them may suffer if a Security is replaced. The Company may charge such Holderfor its expenses in replacing a Security.     Every replacement Security is an additional obligation of the Company.

 

18     Section 2.09.*Outstanding Securities.*     Securities, or Securities of any particular Series, outstanding at any time are all suchSecurities that have been authenticated and delivered by the Trustee except for those cancelled byit, those delivered to it for cancellation and those described in this Section as not outstanding.A Security does not cease to be outstanding because the Company or one of its Affiliates holds theSecurity.     If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless theTrustee receives proof satisfactory to it that the replaced Security is held by a bona fidepurchaser.     If the Trustee or Paying Agent (other than the Company or a Subsidiary) holds on the MaturityDate or Redemption Date money sufficient to pay Securities payable on such date, then on and afterthat date such Securities cease to be outstanding and interest on them ceases to accrue; *provided*that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuantto this Indenture or provision therefor satisfactory to the Trustee has been made.     Section 2.10.*Treasury Securities*.     In determining whether the Holders of the required principal amount of Securities of anySeries have concurred in any direction, waiver or consent (a) the principal amount of an OriginalIssue Discount Security of such Series that shall be deemed to be outstanding for such purposesshall be the amount that would be due and payable as of the date of determination upon adeclarationof acceleration thereof pursuant to Section 6.02 and (b) Securities of such Series owned bythe Company or an Affiliate of the Company shall be disregarded, except that for the purposes ofdetermining whether the Trustee shall be protected in relying on any such direction, waiver orconsent, only Securities of such Series which the Trustee actually knows are so owned shall be sodisregarded. Upon the request of the Trustee, the Company shall furnish tothe Trustee an Officers” Certificate identifying all Securities of such Series, if any, knownby the Company to be owned by it or any of its Affiliates.     Section 2.11.*Temporary Securities*     Until definitive Securities of any Series are ready for delivery, the Company may prepare andexecute and, upon compliance with the requirements of Section 2.03, the Trustee shall authenticatetemporary Securities of such Series. Temporary Securities of any Series shall be substantially inthe form of

 

19definitive Securities of such Series but may have variations that the Company considersappropriate for temporary Securities. Without unreasonable delay, the Company shall prepare andthe Trustee shall authenticate definitive Securities for such Series in exchange for temporarySecurities of such Series in an exchange pursuant to Section 2.07.     Section 2.12.*Cancellation*.     The Company at any time may deliver Securities to the Trustee for cancellation. The Registrarand the Paying Agent shall forward to the Trustee any Securities surrendered to them for transfer,exchange or payment. The Trustee and no one else shall cancel all Securities surrendered fortransfer, exchange, payment or cancellation or for credit against any Sinking Fund Payment inrespect of such Series pursuant to Section 3B.02. The Company may not issue new Securities toreplace Securities it has paid or delivered to the Trustee for cancellation.     Section 2.13.*Defaulted Interest*.     If the Company defaults in a payment of interest on the Securities of any Series, it shall paythe defaulted interest, plus any interest payable on the defaulted interest, to the persons who areHolders of such Securities on a subsequent special record date (“Special Record Date”) and suchterm, as used in this Section 2.13 with respect to the payment of any defaulted interest, shallmean the fifteenth day next preceding the date fixed by the Company for the payment of defaultedinterest, whether or not such day is a Business Day. At least 15 days before the Special RecordDate, the Company shall mail to each holder of such Securities a notice that states the SpecialRecord Date, the payment date and the amount of defaulted interest to be paid.     Section 2.14.*Persons Deemed Owners**.*     The Company, the Trustee and any Agent may treat the person in whose name any Security isregistered as the owner of such Security for the purpose of receiving payment of principal of and(subject to Section 2.13) interest on such Security and for all other purposes whatsoever, whetheror not such Security shall have matured, and neither the Company, the Trustee nor any Agent shallbe affected by any notice to the contrary.

 

20**ARTICLE 3A**Redemption     Section 3A.01.*Right of Redemption.*     Redeemable Securities may be redeemed otherwise than through the operation of the Sinking Fundprovided for in Article 3B at the election of the Company at the times, on the conditions and atthe Redemption Prices specified therein, in (or pursuant to) the Authorizing Resolution relatingthereto or in the supplemental indenture (if any) executed in connection with the issuance of suchSecurities to the extent provided therein, any Redemption Price to be accompanied by accruedinterest to the Redemption Date.     Section 3A.02.*Applicability of Article*.     Redemption of Securities at the election of the Company or otherwise, as permitted or requiredby any provision referred to in Section 3A.01, shall be made in accordance with such provision andthis Article.     Section 3A.03.*Election to Redeem; Notice to Trustee*.     The election of the Company to redeem any Securities of any Series shall be evidenced by aBoard Resolution or set forth in an Officers’ Certificate which states that such election has beenduly authorized by all requisite corporate action on the part of the Company. In case of anyredemption at the electionof the Company of less than all of the Securities of such Series the Company shall, at least60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall besatisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principalamount of Securities of the Series or the several Series, as the case may be, to be redeemed. Inthe case of any redemption of Securities prior to the expiration of any restriction on suchredemption provided in the Securities or elsewhere in this Indenture, the Company shall furnish theTrustee with an Officers’ Certificate evidencing compliance with such restriction.     Section 3A.04.*Selection by Trustee of Securities to be Redeemed*.     If less than all the Securities of any Series are to be redeemed, the particular Securities ofsuch Series to be redeemed shall be selected not more than 90 days prior to the Redemption Date bythe Trustee, from the outstanding Securities of such Series not previously called for redemption,in compliance

 

21with the requirements of the principal national securities exchange, if any, on which suchSecurities are listed or, if the Securities are not listed on a national securities exchange, on a*pro rata*basis or by lot. The Trustee may select for redemption portions (equal to the minimumauthorized denomination of the Series or any integral multiple thereof) of the principal amount ofsuch Securities of a denomination larger than such minimum denomination. If the Company shall sospecify, Securities held by the Company or any of its Subsidiaries or Affiliates shall not beincluded in the Securities selected for redemption.     The Trustee shall promptly notify the Company in writing of the Securities selected forredemption and, in the case of any Securities selected for partial redemption, the principal amountthereof to be redeemed.     For all purposes of this Indenture, unless the context otherwise requires, all provisionsrelating to the redemption of Securities shall relate, in the case of any Securities redeemed or tobe redeemed only in part, to the portion of the principal amount of such Security which has been oris to be redeemed.     Section 3A.05.*Notice of Redemption*.     Notice of redemption shall be given by first class mail, postage prepaid, mailed not less than30 nor more than 60 days prior to the Redemption Date,to each Holder of Securities to be redeemed, at his address appearing in the SecurityRegister.     All notices of redemption shall state:     (1) the Redemption Date;     (2) the Redemption Price;     (3) if less than all outstanding Securities of the Series are to be redeemed, theidentification (and, in the case of partial redemption, the principal amount) of the particularSecurities to be redeemed;     (4) that or, the Redemption Date the Redemption Price will become due and payable upon eachsuch Security, and that interest thereon shall ceaseto accrue on and after said date;     (5) that the redemption is for a Sinking Fund, if such is the case; and     (6) the place or places where such Securities are to be surrendered for payment of theRedemption Price.     Notice of redemption of Securities to be redeemed at the election of the Company shall begiven by the Company or, at the Company’s request, by the Trustee in the name of and at the expenseof the Company.

 

22     Section 3A.06.*Deposit of Redemption Price*.     On or prior to any Redemption Date, the Company shall deposit with the Trustee or with aPaying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust asprovided in Section 2.05) an amount of money sufficient to pay the Redemption Price of, and (exceptif the Redemption Date shall be an Interest Payment Date) any accrued interest on, all theSecurities or portions thereof which are to be redeemed on that date.     Section 3A.07.*Securities Payable on Redemption Date*.     Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,on the Redemption Date, become due and payable at the Redemption Price thereof and from and aftersuch date (unless the Company shall default in the payment of the Redemption Price and accruedinterest)such Securities shall cease to bear interest. Upon surrender of any such Security forredemption in accordance with said notice such Security shall be paid by the Company at theRedemption Price, together with accrued interest tothe Redemption Date; *provided, however,*that installments of interest whose Stated Maturity ison or prior to the Redemption Date shall be payable to the Holders of such Securities registered assuch on the relevant Regular or Special Record Date according to their terms and the provisions ofsuch Security and Section 2.13.     If any Security called for redemption shall not be so paid upon surrender thereof forredemption, the principal shall, until paid or duly provided for,bear interest from the Redemption Date at the rate borne by the Security or,in the case of Original Issue Discount Securities, at a rate equal to the Yield to Maturitythereof.     Section 3A.08.*Securities Redeemed in Part.*     Any Security which is to be redeemed only in part shall be surrendered at the office or agencyof the Company maintained for that purpose pursuant to Section 4.02 (with, if the Company or theTrustee so requires, due endorsement by, or a written instrument of transfer in form satisfactoryto the Companyand the Trustee duly executed by, the Holder thereof or his attorney duly authorized inwriting), and the Company shall execute and the Trustee shall authenticate and deliver to theHolder of such Security, without service charge, a new Security or Securities of the same Series,of any authorized denomination as requested by such Holder in aggregate principal amount equal toandin exchange for the unredeemed portion of the principal of the Security so surrendered.

 

23**ARTICLE 3B**Sinking Fund     Section 3B.01.*Sinking Fund Payments*.     As and for a Sinking Fund for the retirement of Sinking Fund Securities,the Company will, until all such Securities are paid or payment thereof is duly provided for,deposit in accordance with Section 3A.06, at such times and subject to such terms and conditions asshall be specified in the provisions of such Securities and the Authorizing Resolution and/orsupplemental indenture (if any) relating thereto, such amounts in cash or such other Required Currency as shallbe required or permitted under such provisions in order to redeem Securities on the specifiedRedemption Dates at a Redemption Price equal to their principal amounts, less in each such case theamount of any credit against such payment received by the Company under Section 3B.02. Each suchSinking Fund payment shall be applied to the redemption of Securities on the specified RedemptionDate as herein provided.     Section 3B.02.*Satisfaction of Sinking Fund Payments with Securities*.     The Company (1) may deliver Securities of the same Series (other than any Securities of suchSeries previously called for redemption pursuant to the Sinking Fund or theretofore applied as acredit against a Sinking Fund payment) and (2) may apply as a credit Securities of the same Seriesredeemed at the election of the Company pursuant to Section 3A.01 or through the operation of theSinking Fund in any period in excess of the minimum amount required for such period under Section3B.01 and not theretofore applied as a credit against a Sinking Fund payment, in each case insatisfaction of all orany part of any Sinking Fund payment required to be made pursuant to Section 3B.01. Each such Security so delivered or applied shall be credited for such purpose bythe Trustee at a Redemption Price equal to its principal amount or, in the case of an OriginalIssue Discount Security, its then accreted value, and the required amount of such Sinking Fundpayment in respect of such Series shall be reduced accordingly.

 

24     Section 3B.03.*Redemption of Securities for Sinking Fund*.     If in any year the Company shall elect to redeem in excess of the minimum principal amount ofSecurities of any Series required to be redeemed pursuant to Section 3B.01 or to satisfy all or anypart of any Sinking Fund payment by delivering or crediting Securities of the same Series pursuantto Section 3B.02, then at least 45 days prior to the date on which the Sinking Fund payment inquestion shall be due (or such shorter period as shall be approved by the Trustee), the Companyshall deliver to the Trustee an Officers’ Certificate specifying the amount of the Sinking Fundpayment and the portions thereof which are to be satisfied by payment of cash or such otherRequired Currency, by delivery of Securities of such Series or by crediting Securities of suchSeries, and, at least 45 days prior to the Sinking Fund payment date (or such shorter period asshall be approved by the Trustee), will also deliver to the Trusteethe Securities of such Series to be so delivered. Such Officers’ Certificate shall also statethat the Securities forming the basis of any such credit do not include any Securities which havebeen redeemed through the operation of the Sinking Fund in the minimum amount required underSection 3B.01 or previously credited against any Sinking Fund payment. The Trustee shall, upon thereceipt of such Officers’ Certificate (or, if it shall not have received such an Officers’Certificate at least 45 days prior to the Sinking Fund payment date, then following such 45th day),select the Securities of such Series to be redeemed upon the next Sinking Fund payment date, in themanner specified in Section 3A.04, and cause notice of the redemption thereof to be given in thename of and at the expense of the Company in the manner provided in Section 3A.05. Such noticehaving been duly given, the redemption of such Securities shall be made upon the terms and in themanner stated in Sections 3A.06, 3A.07 and 3A.08.**ARTICLE 4**Covenants     Section 4.01.*Payment of Securities*     The Company shall pay the principal of and interest on the Securities of each Series on thedates and in the manner provided in the Securities and in this Indenture. An installment ofprincipal or interest shall be considered paid on the date due if the Trustee or Paying Agent(other than the Company or a Subsidiary) holds on that date money designated for and sufficient topay the installment.

 

25     The Company shall pay interest on overdue principal at the respective rates borne by suchSecurities or, in the case of Original Issue Discount Securities, at rates equal to the respectiveYields to Maturity thereof; it shall pay interest on overdue installments of interest at therespective rates borne by such Securities to the extent lawful.     Section 4.02.*Maintenance of Office or Agency*.     Except as otherwise provided in the Authorizing Resolutions and/or supplemental indenture (ifany) relating to any Series, the Company will maintain in the City of Detroit, Michigan, an officeor agency where Securities may be surrendered for registration of transfer or exchange or forpresentation for payment and where notices and demands to or upon the Company in respectto the Securities and this Indenture may be served. The Company will give prompt writtennotice to the Trustee of the location, and any change in the location, of such office or agency.If at any time the Company shall fail to maintain any such required office or agency or shall failto furnish the Trustee with the address thereof, such presentations, surrenders, notices anddemands may be made or served at the address of the Trustee set forth in Section 10.02.     The Company may from time to time change such office or agency or designate one or more otheroffices or agencies where the Securities of any Series or a particular Series may be presented orsurrendered for any or all such purposes and may from time to time rescind such designations;*provided,*that no such change, designation or rescission shall in any manner relieve the Company ofits obligation to maintain an office or agency for such purposes. The Company will give promptwritten notice to the Trustee of any such change, designation or rescission and of any change inthe location of any such office or agency.     The Company hereby initially designates the Trustee in the City of Detroit, Michigan, as anagency of the Company in accordance with Section 2.04.     Section 4.03.*Corporate Existence*.     Subject to Article 5 and Section 4.07, the Company will do or cause to be done all thingsnecessary to preserve and keep in full force and effect its corporate existence and the corporate,partnership or other existence of each

 

26material Subsidiary in accordance with the respective organizational documents of each suchSubsidiary and the rights (charter and statutory) and material franchises of the Company and itsmaterial Subsidiaries; *provided, however,*that the Company shall not be required to preserve anysuch right or franchise, or the corporate existence of any material Subsidiary, if the Boardof Directors or management of the Company or such Subsidiary shall determine that thepreservation thereof is no longer desirable in the conduct of the business of the Company and itsSubsidiaries, taken as a whole, and if the loss thereof is not, and will not be, adverse in anymaterial respect to the Holders.     Section 4.04.*Payment of Taxes and Other Claims*     The Company will pay or discharge or cause to be paid or discharged, before the same shallbecome delinquent, (1) all material taxes, assessments and governmental charges levied or imposedupon the Company or any Subsidiary or upon the income, profits or property of the Company or anySubsidiary and (2) all lawful claims for labor, materials and supplies which, if unpaid, might bylaw become a material Lien upon the property of the Company or any Subsidiary; *provided, however,*that the Company shall not be required to pay or discharge or cause to be paid or discharged anysuch tax, assessment, charge or claim whose amount, applicability or validity is being contested ingood faith by appropriate proceedings and for which appropriate provision has been made.     Section 4.05.*Notice of Defaults*.     In the event that any Indebtedness of the Company or any of its Subsidiaries is declared dueand payable before its maturity because of the occurrence of any default (or any event which, withnotice or the lapse of time, or both, shall constitute such default) under such Indebtedness, theCompany will promptly give written notice to the Trustee of such declaration.     Section 4.06.*Maintenance of Properties*     Subject to Section 4.07, the Company will cause all material properties owned by or leased toit or any Subsidiary and used or useful in the conductof its business or the business of any Subsidiary to be maintained and kept in normalcondition, repair and working order and supplied with all necessary equipment and will cause to bemade all necessary repairs, renewals, replacements, betterments and improvements thereof, all as inthe judgment of the

 

27Company may be necessary, so that the business carried on in connection therewith may beproperly and advantageously conducted at all times; *provided, however,*that nothing in this Sectionshall prevent the Company or any Subsidiary from discontinuing the use, operation or maintenance ofany of such properties, or disposing of any of them, if such discontinuance or disposal is, in thejudgment of the Board of Directors or of the board of directors, board of trustees or managingpartners of the Subsidiary concerned, or of an officer (or other agent employed by the Company orof any of its Subsidiaries) of the Company or such Subsidiary having managerial responsibility forany such property, desirable in the conduct of the business of the Company or any Subsidiary, andif such discontinuance or disposal is not disadvantageous in any material respect to the Holders.     Section 4.07.*Liquidation*.     The Board of Directors or the stockholders of the Company may not adopta plan of liquidation which provides for, contemplates or the effectuation of which ispreceded by (i) the sale, lease, conveyance or other disposition of all or substantially all of theassets of the Company otherwise than substantiallyas an entirety (Article 5 of this Indenture being the Article which governs any such sale,lease, conveyance or other disposition substantially as an entirety) and (ii) the distribution ofall or substantially all of the proceeds of such sale, lease, conveyance or other disposition andof the remaining assets of the Company to the holders of Capital Stock of the Company, unless theCompany shall in connection with the adoption of such plan make provisions for, or agree that priorto making any liquidating distributions it will make provisions for, the satisfaction of theCompany’s obligations hereunder and under the Securities of each Series as to the payment ofprincipal and interest. The Company shall be deemed to make provision for such payments only if(a) the Company delivers in trust to the Trustee or Paying Agent (other than the Company or aSubsidiary) (i) in the case of any Securities of any Series denominated in United States dollars,an amount of cash sufficient to pay principal of and interest on such outstanding Securities attheir respective Stated Maturities or U.S. Government Obligations in an aggregate principal amountequal to the unpaid principal amount of such Securities and having maturities and interest paymentdates that shall coincide, as nearly as may be practicable, with the dates that the principal ofand interest on such Securities are due and (ii) in the case of any Securities of any Seriesdenominated in any currency other than United States dollars, an amount of the Required Currencysuffi-

 

28cient to pay principal of and interest on such outstanding Securities at their respectiveStated Maturities or (b) there is an express assumption of the due and punctual payment of theCompany’s obligations hereunder and under the Securities of each Series and the performance andobservance of all covenants and conditions to be performed by the Company hereunder, by theexecution and delivery of a supplemental indenture in form satisfactory to the Trusteeby a person which acquires or will acquire (otherwise than pursuant to a lease) a portion ofthe assets of the Company, and which person will have assets (immediately after the acquisition)and aggregate net earnings (for such person’s four full fiscal quarters immediately preceding theacquisition) equal to not less than the assets of the Company (immediately preceding theacquisition) and the aggregate net earnings of the Company (for its four full fiscal quartersimmediately preceding such acquisition), respectively, and which is organized and existing underthe laws of the United States, any State thereofor the District of Columbia; *provided, however,*that the Company shall not make anyliquidating distribution until after the Company shall have certified to the Trustee with anOfficers’ Certificate and an Opinion of Counsel at least five days prior to the making of anyliquidating distribution that it has complied with the provisions of this Section 4.07.     Section 4.08.*Compliance Certificate*.     The Company shall deliver to the Trustee within 90 days after the end of each fiscal quarterof the Company an Officers’ Certificate stating whether or not the signers know of any Default orEvent of Default by the Company that occurred during such fiscal quarter and whether all of theconditions and covenants of the Company have been complied with regardless of any period of graceor requirement of notice provided under the Indenture. If they do know of such a Default or Eventof Default, the certificate shall describe the Default or Event of Default, as the case may be, andits status. The first Officers’ Certificate to be delivered pursuant to this Section 4.08 shall befor the fiscal quarter ending immediately after the Original Issue Date.     Section 4.09.*SEC Reports*.     (a) The Company shall file with the Trustee within 15 days after it files them with the SECcopies of the annual reports and of the information, documents and other reports (or copies of suchportions of any of the foregoing as theSEC may by rules and regulations prescribe) which the Company is requiredto file with the SEC pursuant to Section 13 or 15(d) of the Securities ExchangeAct of 1934, as amended. The Company also shall comply with the other provisions of TIA §314(a).

 

29     (b) So long as the Securities of any Series remain outstanding, the Company shall cause itsannual report to stockholders and any quarterly or other financial reports furnished by it tostockholders to be mailed to the Holders of Securities outstanding at their addresses appearing inthe Security Register.     Section 4.10.*Waiver of Stay, Extension or Usury Laws*     The Company covenants (to the extent that it may lawfully do so) that itwill not at any time insist upon, plead, or in any manner whatsoever claim or take the benefitor advantage of, any stay or extension law or any usury law or other law, which would prohibit orforgive the Company from paying all or any portion of the principal of and/or interest on theSecurities of any Seriesas contemplated herein, wherever enacted, now or at any time hereafter in force, or which mayaffect the covenants or the performance of this Indenture; and (to the extent that it may lawfullydo so) the Company hereby expressly waives all benefit or advantage of any such law, and covenantsthat 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 beenenacted.     Section 4.11.*Restrictions on Liens*.     The Company will not incur, create, assume or otherwise become liable in respect of anyIndebtedness secured by a Lien, or guarantee any Indebtedness with a guarantee which is secured bya Lien, on any Principal Domestic Property of the Company without effectively providing that theSecurities of each Series (together with, if the Company shall so determine, any other Indebtednessof the Company then existing or thereafter created ranking equally with the Securities of eachSeries) shall be secured equally and ratably with (or, at the option of the Company, prior to) suchsecured Indebtedness, so long as such secured Indebtedness shall be so secured; *provided, however,*that this Section 4.11 shall not apply to Indebtedness secured by:     (1) Liens existing on the date of this Indenture;     (2) Liens securing Indebtedness issued pursuant to the GeneralMortgage;     (3) Permitted Liens;

 

30     (4) Liens which require the consent of the holders of indebtedness issued pursuant to theGeneral Mortgage and such consent has been received in accordance with the General Mortage;     (5) Liens which consist of pledges of indebtedness issued pursuant to the General Mortgageto secure other indebtedness provided that the principal amount of indebtedness so pledged shallnot exceed the amount of the other indebtedness secured thereby;     (6) Liens in favor of governmental bodies to secure progress, advance or other payments;     (7) Liens existing on property, shares of stock or Indebtedness at the time of acquisitionthereof (including acquisition through lease, merger or consolidation) or Liens to secure thepayment of all or any part of the purchase price thereof or the purchase price of construction,installation, renovation, improvement or development thereon or thereof or to secure anyIndebtedness incurred prior to, at the time of, or within 360 days after the later ofthe acquisition, completion of such construction, installation, renovation, improvement ordevelopment or the commencement of full operation of such property or within 360 days after theacquisition of such shares or Indebtedness for the purpose of financing all or any part of thepurchase price thereof;     (8) Liens securing Indebtedness in an aggregate amount which, at the time of incurrence andtogether with all outstanding Attributable Debt in respect of Sale and Leaseback Transactionspermitted by clause (y) of the second paragraph of Section 4.12, does not exceed five percent ofthe Net Tangible Assets of the Company; and     (9) any extension, renewal or replacement (or successive extensions, renewals orreplacements), as a whole or in part, of any Lien referred to inthe foregoing clauses (1) to (8) inclusive; *provided,*that such extension, renewal orreplacement of such Lien is limited to all or any part of the same property that secured theLien extended, renewed or replaced (plus improvements on such property), and that such securedIndebtedness at such timeis not increased.     If at any time the Company shall incur, create, assume or otherwise become liable in respectof any Indebtedness secured by a Lien, or guarantee any Indebtedness with a guarantee which issecured by a Lien, on any Principal Domestic Property of the Company other than as permitted underclauses (1) through (9) of this Section 4.11, the Company shall promptly deliver to the Trustee (i)an Officers’ Certificate stating that the covenant of the Company to secure the Securities equallyand ratably with such secured Indebtedness pursuant to this Section 4.11 has been complied with and(ii) an Opinion of

 

31Counsel that such covenant has been complied with and that any instruments executed by theCompany in performance of such covenant comply with the requirements of such covenant.     Section 4.12.*Restrictions on Sales and Leasebacks*.     The Company will not sell or transfer any Principal Domestic Property of the Company, with theCompany taking back a lease of such Principal Domestic Property of the Company (a “Sale andLeaseback Transaction”), unless (i) such Principal Domestic Property of the Company is sold within360 days from the date of acquisition of such Principal Domestic Property of the Company or thedate of the completion of construction or commencement of full operations on such PrincipalDomestic Property of the Company, whicheveris later, or (ii) the Company, within 120 days after such sale, applies or causes to beapplied to the retirement of Funded Debt of the Company (other than Funded Debt of the Companywhich by its terms or the terms of the instru-ment pursuant to which it was issued is subordinate in right of payment to the Securities ofeach Series) an amount not less than the greater of (A) the net proceeds of the sale of suchPrincipal Domestic Property of the Company or (B) the fair value (as determined in any mannerapproved by the Board of Directors) of such Principal Domestic Property of the Company.     The provisions of this Section 4.12 shall not prevent a Sale and Leaseback Transaction (x) ifthe lease entered into by the Company in connection therewith is for a period, including renewals,of not more than 36 months or (y) if the Company would, at the time of entering into such Sale andLeaseback Transaction, be entitled, without equally and ratably securing the Securities,to create or assume a Lien on such Principal Domestic Property securing Indebtedness in anamount at least equal to the Attributable Debt in respectof such Sale and Leaseback Transaction pursuant to clause (8) of Section 4.11.**ARTICLE 5**Successor Corporation     Section 5.01.*When Company May Merge, etc*.     The Company shall not consolidate with or merge with or into any other corporation or transferall or substantially all of its properties and assets as an entirety to any person, unless:

 

32     (1) either the Company shall be the continuing person, or the person (if other than theCompany) formed by such consolidation or into which the Company is merged or to which all orsubstantially all of the properties and assets of the Company as an entirety are transferredshall be a corporation organized and existing under the laws of the United States or any Statethereof or the District of Columbia and shall expressly assume, by an indenture supplementalhereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all theobligations of the Company under the Securities of each Series and this Indenture;     (2) immediately before and immediately after giving effect to such transaction, no Event ofDefault and no Default shall have occurred and be continuing; and     (3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion ofCounsel, each stating that such consolidation, merger or transfer and such supplementalindenture comply with this Article and that all conditions precedent herein provided forrelating to such transactions have been complied with.     Notwithstanding the foregoing, any Subsidiary may consolidate with, merge into or transfer allor part of its properties and assets to the Company or any other Subsidiary or Subsidiaries.     Section 5.02.*Successor Corporation Substituted*.     Upon any consolidation or merger, or any transfer of all or substantially all of theproperties and assets of the Company in accordance with Section 5.01, the successor corporationformed by such consolidation or into which the Company is merged or to which such transfer is madeshall succeed to, and be substituted for, and may exercise every right and power of, the Companyunder this Indenture with the same effect as if such successor corporation had been named asthe Company herein.**ARTICLE 6**Default And Remedies     Section 6.01.*Events of Default*.     An “Event of Default” occurs if, with respect to any Series of Securities, unless it is eitherinapplicable to a particular Series or it is specifically deleted or modified in the AuthorizingResolution and/or supplemental indenture (if any) in respect of the Series, and upon any otherevents which may be specified

 

33as Events of Default in the Authorizing Resolution and/or supplemental indenture (if any) inrespect of such Series:     (1) the Company defaults in the payment of interest on any Securities of such Series whenthe same becomes due and payable and the default continues for a period of 30 days;     (2) the Company defaults in the payment of the principal of any Securities of such Serieswhen the same becomes due and payable at its Maturityor otherwise or defaults in the deposit of any Sinking Fund installment in respect of suchSeries, when and as payable by the terms of Section 3B.01 hereof;     (3) the Company fails to comply with any of its other agreements contained in theSecurities of such Series or this Indenture (other than an agreement relating exclusively toanother Series of Securities) and the default continues for the period and after the noticespecified below;     (4) there shall be a default under any bond, debenture, note or other evidence ofindebtedness for money borrowed or under any mortgage, indenture or other instrument under whichthere may be issued or by which there may be secured or evidenced any indebtedness for moneyborrowedby the Company or under any guarantee of payment by the Company of indebtedness for moneyborrowed, whether such indebtedness or guarantee now exists or shall hereafter be created, andthe effect of such default is to cause such indebtedness to become due prior to its statedmaturity; *provided, however,*that no default under this clause (4) shall exist if all suchdefaults do not relate to such indebtedness or such guarantees with an aggregate principalamount in excess of $5,000,000 at the time outstanding;     (5) the Company pursuant to or within the meaning of any Bankruptcy Law:          (A) commences a voluntary case or proceeding,          (B) consents to the entry of an order for relief against it in an involuntary case orproceeding,          (C) consents to the appointment of a Custodian of it or for all or substantially all ofits 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 Lawthat:          (A) is for relief against the Company in an involuntary case or proceeding,          (B) appoints a Custodian of the Company for all or substantially all of its properties,or

 

34          (C) orders the liquidation of the Company,and in each ease the order or decree retrains unstayed and in effect for 60 days; or     (7) final judgments for the payment of money which in the aggregate exceed $5,000,000 atthe time outstanding shall be rendered against the Company by a court of competent jurisdictionand shall remain undischarged for a period (during which execution shall not be effectivelystayed) of 60 days after such judgment becomes final and nonappealable.     The term “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state law forthe relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator,sequestrator or similar official under any Bankruptcy Law.     A Default under clause (3) is not an Event of Default until the Trustee notifies the Company,or the Holders of at least 25% in principal amount ofthe outstanding Securities of such Series notify the Company and the Trustee, of the Defaultand the Company does not cure the Default within 30 days after receipt of the notice. The noticemust specify the Default, demand that it be remedied and state that the notice is a “Notice ofDefault.” When a Default is cured, it ceases. Such notice shall be given by the Trustee if sorequested by the Holders of at least 25% in principal amount of the Securities of such Series thenoutstanding.     Subject to the provisions of Sections 7.01 and 7.02, the Trustee shall not be charged withknowledge of any Event of Default unless written notice thereof shall have been given to a TrustOfficer at the corporate trust office of the Trustee by the Company, the Paying Agent, any Holderor an agent of any Holder.     Section 6.02.*Acceleration*.     If an Event of Default (other than an Event of Default specified in Section 6.01(5) or (6))with respect to Securities of any Series occurs and is continuing, the Trustee may, by notice tothe Company, or the Holders of at least 25% in principal amount of such Securities of such Seriesthen outstanding may, by notice to the Company and the Trustee, and the Trustee shall, upon therequest of such Holders, declare all unpaid principal (or, if such Securities are Original IssueDiscount Securities, such portion of the principal amount as may thenbe payable on acceleration as provided in the terms thereof) and accrued

 

35interest to the date of acceleration on all such Securities of such Series then outstanding(if not then due and payable) to be due and payable and, uponany such declaration, the same shall become and be immediately due and payable. If an Eventof Default specified in Section 6.01(5) or (6) occurs, all unpaid principal (or, if any Securitiesare Original Issue Discount Securities, such portion of the principal amount as may then be payableon accelerationas provided in the terms thereof) and accrued interest on all Securities of every Series thenoutstanding shall *ipso facto*become and be immediately due and payable without any declaration orother act on the part of the Trustee or any Securityholder. Upon payment of such principal amountand interest, all ofthe Company’s obligations under such Securities of such Series and this Indenture with respectto such Securities of such Series, other than obligations under Section 7.07, shall terminate. TheHolders of a majority in principal amount of the Securities of such Series then outstanding bynotice to the Trustee may rescind an acceleration and its consequences if (i) all existing Eventsof Default, other than the non-payment of the principal of the Securities of such Series which has become due solely by such declaration of acceleration, have beencured or waived, (ii) to the extent the payment of such interest is lawful, interest on overdueinstallments of interest and overdue principal, which has become due otherwise than by suchdeclaration of acceleration, has been paid, (iii) the rescission would not conflict with anyjudgment or decree of a court of competent jurisdiction and (iv) all payments due to the Trusteeand any predecessor Trustee under Section 7.07 have been made. Anything herein contained to thecontrary notwithstanding, in the event of any acceleration pursuant to this Section 6.02, theCompany shall not be obligated to pay any premium in connection with any repayment arising from anEvent of Default.     Section 6.03.*Other Remedies*.     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedyby proceeding at law or in equity to collect the payment of principal of or interest on theSecurities of the Series as to which the Event of Default shall have occurred or to enforce theperformance of any provision of such Securities or the Indenture.     The Trustee may maintain a proceeding even if it does not possess any ofthe Securities of the Series as to which the Event of Default shall have occurred or does notproduce any of them in the proceeding. A delay or omission by

 

36the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event ofDefault shall not impair the right or remedy or constitute a waiver of or acquiescence in the Eventof Default. No remedy is exclusive of any other remedy. All available remedies are cumulative tothe extent permitted by law.     Section 6.04.*Waiver of Past Defaults*.     Subject to Sections 6.07 and 9.02, the Holders of a majority in principal amount of theoutstanding Securities of a Series by written notice to the Trustee may waive an existing Defaultor Event of Default and its consequences, except a Default in the payment of principal of orinterest on anysuch Security as specified in clauses (1) and (2) of Section 6.01. When a Default or Event ofDefault is waived, it is cured and ceases.     Section 6.05.*Control by Majority*.     The Holders of a majority in principal amount of the outstanding Securities of a Series (or,if more than one Series is affected, of all such Series voting as a single class) may direct thetime, method and place of conducting any proceeding for any remedy available to the Trustee orexercising any trust or power conferred on it. However, the Trustee may refuse to follow anydirection that conflicts with any law or this Indenture that theTrustee determines may be unduly prejudicial to the rights of another Securityholder, or that may involve the Trusteein personal liability; *provided*that the Trustee may take any other action deemed proper by theTrustee which is not inconsistent with such direction.     Section 6.06.*Limitation on Suits*.     A Securityholder may not pursue any remedy with respect to this Indenture or the Securities ofthe applicable Series unless.     (1) the Holder gives to the Trustee written notice of a continuing Eventof Default;     (2) the Holders of at least 25% in principal amount of the outstanding Securities of theSeries in respect of which the Event of Default has occurred make a written request to theTrustee to pursue a remedy;     (3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trusteeagainst any loss, liability or expense;     (4) the Trustee does not comply with the request within 60 days after receipt of therequest and the offer of indemnity; and

 

37     (5) during such 60-day period the Holders of a majority in principal amount of theoutstanding Securities of such Series do not give the Trusteea direction which, in the opinion of the Trustee, is inconsistent with the request.     A Holder of Securities of any Series may not use this Indenture to prejudice the rights of anyother Holders of Securities of that Series or to obtain a preference or priority over any otherHolders of Securities of that Series.     Section 6.07.*Rights of Holders to Receive Payment*.     Notwithstanding any other provision of this Indenture, the right of any Holder to receivepayment of principal of and interest on the Security, on or after the respective due datesexpressed in such Security, or to bring suit forthe enforcement of any such payment on or after such respective dates, shall not be impairedor affected without the consent of such Holder.     Section 6.08.*Collection Suit by Trustee*.     If an Event of Default in payment of interest or principal specified in Section 6.01(1) or (2)occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of anexpress trust against the Company or any other obligor on the Securities of the Series in respectof which the Event of Default has occurred for the whole amount of principal and accrued interestremaining unpaid, together with interest overdue on principal or, in the caseof Original Issue Discount Securities, the then accreted value, and to the extent that paymentof such interest is lawful, interest on overdue installments of interest, in each case at the rateper annum borne by such Securities or, in the case of Original Issue Discount Securities, at a rateequal to the Yield to Maturity thereof, and such further amount as shall be sufficient to cover thecosts and expenses of collection, including the reasonable compensation, expenses, disbursementsand advances of the Trustee, its agents and counsel.     Section 6.09.*Trustee May File Proofs of Claim*.     The Trustee may file such proofs of claim and other papers or documents as may be necessary oradvisable in order to have the claims of the Trustee (including any claim for the reasonablecompensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and theSecurityholders allowed in any judicial proceedings relative to the Company (or any other obligorupon the Securities), its creditors or its property and shall be entitled

 

38and empowered to collect and receive any monies or other property payableor deliverable on any such claims and to distribute the same, and any Custodian in any suchjudicial proceedings is hereby authorized by each Securityholder to make such payments to theTrustee and, in the event thatthe Trustee shall consent to the making of such payments directly to the Securityholders, topay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursementsand advances of the Trustee, its agents and counsel, and any other amounts due the Trustee underSection 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan ofreorganization, arrangement, adjustment or composition affecting the Securities of any Series orthe rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim ofany Securityholder in any such proceeding.     Section 6.10.*Priorities*.     If the Trustee collects any money or property pursuant to this Article 6 with respect toSecurities of a Series, it shall pay out the money or property 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 of such Series in respectof which monies have been collected for principal and interest, ratably, without preference orpriority of any kind, according to the amounts due and payable on such Securities for principaland interest, respectively; and     Third: to the Company.     The Trustee, upon prior written notice to the Company, may fix a record date and payment datefor any payment to Securityholders pursuant to this Section 6.10.     Section 6.11.*Undertaking for Costs.*     In any suit for the enforcement of any right or remedy under this Indenture or in any suitagainst the Trustee for any action taken or omitted by it as Trustee, a court in its discretion mayrequire the filing by any party litigant in the suit of are undertaking to pay the costs of thesuit, 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

 

39faith of the claims or defenses made by the party litigant. This Section 6.11 does not applyto a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by any Holder or agroup of Holders of more than 10% in principal amount of the outstanding Securities of all Series(or, if the matter in issue does not relate to all Series of Securities, then the Holders of 10% inprincipal amount of the outstanding Securities of all Series to which such issue relates) (treatedas a single class).**ARTICLE 7**TrusteeSection 7.01.*Duties of Trustee*     (a) The Trustee, except during the continuance of an Event of Default known to it pursuant toSection 6.01, undertakes to perform such duties and only such duties as are specifically set forthin this Indenture. If an Event of Default known to the Trustee pursuant to Section 6.01 hasoccurred and is continuing, the Trustee shall exercise such of the rights and powers vested init by this Indenture and use the same degree of care and skill in their exercise as a prudentperson would exercise or use under the circumstances in the conduct of his own affairs.     (b) Except during the continuance of an Event of Default known to the Trustee pursuant toSection 6.01:     (1) the Trustee need perform only those duties as are specifically set forth in thisIndenture and no others and no implied covenants or obligationsshall be read into this Indenture against the Trustee;     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to thetruth of the statements and the correctness of the opinions expressed therein, upon certificatesor opinions furnished to the Trustee and conforming to the requirements of this Indenture;however, the Trustee shall examine the certificates and opinions to determine whether or notthey conform to the requirements of this indenture.     (c) The Trustee may not be relieved from liability for its own negligent action, its ownnegligent failure to act, or its own willful misconduct, except that:     (1) this paragraph does not limit the effect of paragraphs (a) and (b) of this Section7.01;     (2) the Trustee shall not be liable for any error of judgement made in good faith by aTrust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinentfacts;

 

40     (3) the Trustee shall not be liable with respect to any action it takes or omits to take ingood faith in accordance with a direction received by it pursuant to Section 6.05.     (d) No provision of this Indenture shall require the Trustee to expend or risk its own fundsor otherwise incur any financial liability in the performance of any of its duties hereunder or inthe exercise of any of its rights or powers if it shall have reasonable grounds for believing thatrepayment of such funds or adequate indemnity against such risk or liability is not reasonablyassured toit.     (e) Every provision of this Indenture that in any way relates to the Trustee is subject toparagraphs (a), (b), (c) and (d) of this Section 7.01.     (f) The Trustee shall not be liable for interest on any money received by it except as theTrustee may agree with the Company in writing. Money held in trust by the Trustee need not besegregated from other funds except to the extent required by law.     Section 7.02.*Right of Trustee*.     Subject to Section 7.01:     (a) the Trustee may rely on any document believed by it to be genuine and to have beensigned or presented by the proper person; the Trustee need not investigate any fact or matterstated in the document;     (b) before the Trustee acts or refrains from acting, it may require an Officers’Certificate or an Opinion of Counsel, which shall conform to Section 10.05; the Trustee shallnot be liable for any action it takes or omits to take in good faith in reliance on suchcertificate or opinion;     (c) the Trustee may act through its attorneys and agents and shall not be responsible forthe 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 takein good faith which it reasonably believes to be authorized or within its rights or powers;     (e) the Trustee may consult with counsel and the advice or opinion of such counsel as tomatters of law shall be full and complete authorization and protection in respect of any actiontaken, omitted or suffered by it hereunder in good faith and in accordance with the advice oropinion of such counsel; and

 

41     (f) the Trustee shall be under no obligation to exercise any of the rightsor powers vested in it by this Indenture at the request or direction of the Holders,including, without limitation, the duties, rights and powers specified in Section 6.02 hereof,unless such Holders have offered to the Trustee reasonable security or indemnity against thecosts, expenses and liabilities which might be incurred by the Trustee in compliance with suchrequest or action.     Section 7.03.*Individual Rights of Trustee*.     The Trustee in its individual or any other capacity may become the owneror pledgee of Securities and may otherwise deal with the Company or its Affiliates with thesame rights it would have if it were not Trustee. Any Agent may do the same with like rights.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 theSecurities of any Series, it shall not be accountable for the recitals contained in this Indentureor for the Company’s use of the proceeds from the Securities of any Series, and it shall not beresponsible for any statement in the Securities of any Series, or in any prospectus used to sellthe Securities of any Series, other than its certificate of authentication.     Section 7.05.*Notice of Defaults*.     If a Default or an Event of Default occurs and is continuing with respect of any Series ofSecurities, and if it is actually known to the Trustee pursuant to Section 6.01 hereof, the Trusteeshall mail to each Holder of the Securities of such Series notice of the Default or Event ofDefault within 60 days after it occurs. Except in the case of a Default or an Event of Default inpayment of principal of or interest on any Security or in the payment of any Sinking Fundinstallment, the Trustee away withhold such notice if and so long as a committee of its TrustOfficers in good faith determines that withholding the notice is in the interest ofSecurityholders.     Section 7.06.*Reports by Trustee to Holders*     The Trustee shall transmit to the Holder such reports concerning, among other things, theTrustee and its action under this Indenture as may be required pursuant to the TIA at the time and in compliance with TIA§313(a). The Trustee alsoshall comply with TIA§313(b)(2) and 313(c).

 

42     A copy of each such report at the time of its mailing to Securityholders shall be filed withthe SEC and each stock exchange, if any, on which the Securities of any Series are listed.     The Company shall notify the Trustee if the Securities of any Series become listed on anystock exchange.     Section 7.07.*Compensation and Indemnity*.     The Company shall pay to the Trustee from time to time such compensation as shall be agreedupon in writing by the Company and the Trustee. The Trustee’s compensation shall not be limited byany law on compensation of a trustee of an express trust. The Company shall reimburse the Trusteeupon request for all reasonable disbursements, expenses and advances incurred or made by it. Suchexpenses shall include the reasonable compensation, disbursements and expenses of the Trustee’sagents and counsel.     The Company shall indemnify the Trustee for, and hold it harmless against, any loss orliability incurred by it in connection with the administration of this trust and its dutieshereunder, including the reasonable expenses of defending itself against any claim of liabilityarising hereunder. The Trustee shall notify the Company promptly of any claim asserted against theTrustee for which it may seek indemnity. The Company need not pay for any settlement made withoutits written consent, which consent shall not be unreasonably withheld. The Company need notreimburse any expense or indemnify against any loss or liability incurred by the Trustee throughnegligence or bad faith.     To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have alien prior to the Securities of each Series on all money or property held or collected by theTrustee, in its capacity as Trustee, except money or property held in trust to pay principal of orinterest on particular Securities.     When the Trustee incurs expenses or renders services after an Event of Default specified inSection 6.01(5) or (6) occurs, the expenses and the compensation for the services are intended toconstitute expenses of administration under any Bankruptcy Law.     Section 7.08.*Replacement of Trustee*.     The Trustee may resign by so notifying the Company in writing. The Holders of a majority inprincipal amount of the outstanding Securities of all Series

 

43(voting as a single class) may remove the Trustee by so notifying the Trustee in writing andmay appoint a successor Trustee with the Company’s consent. 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;     (3) a receiver or other public officer takes charge of the Trustee or its property; or     (4) the Trustee becomes incapable of acting.     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for anyreason, the Company shall promptly appoint a successor Trustee. Within one year after thesuccessor Trustee takes office, the Holders of a majority in principal amount of the Securities ofall Series (voting as a single class) may appoint a successor Trustee to replace the successorTrustee appointed by the Company.     A successor Trustee shall deliver a written acceptance of its appointment to the retiringTrustee and to the Company. Immediately after that, the retiring Trustee shall transfer, afterpayment of all sums then owing to the Trustee pursuant to Section 7.07, all property held by it asTrustee to the successor Trustee, subject to the lien provided in Section 7.07, the resignation orremoval of the retiring Trustee shall become effective, and the successor Trustee shall have allthe rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mailnotice of its succession to each Securityholder.     If a successor Trustee does not take office within 60 days after the retiring Trustee resignsor is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amountof the outstanding Securities of all Series (voting as a single class) may petition any court ofcompetent jurisdiction for the appointment of a successor Trustee.     If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court ofcompetent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.Any successor Trustee shall comply with TIA § 310(a)(5).     Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’sobligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
 

 
 44     Section 7.09.*Successor Trustee by Merger, etc*.     If the Trustee consolidates with, merges or converts into, or transfers all or substantiallyall of its corporate trust business to, another corporation, the resulting, surviving or transfereecorporation without any further act shall be the successor Trustee.     Section 7.10.*Eligibility, Disqualification*.ThisIndenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1). The Trustee shall have a combined capital and surplus of at least$50,000,000 as set forth in its most recent published annual report of condition. The Trusteeshall comply with TIA § 310(b), including the provision permitted by the second sentence of TIA §310(b).     Section 7.11.*Preferential Collection of Claims Against Company*.     The Trustee shall comply with TIA § 311(a), excluding from the operation of § 311(a) anycreditor 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.**ARTICLE 8**Discharge Of Indenture     Section 8.01.*Termination of Company’s Obligations*     The Company may terminate its obligations under the Securities of any Series and thisIndenture with respect to such Series, except those obligations referred to in the immediatelysucceeding paragraph, (a) if all Securities of such Series previously authenticated and delivered(other than destroyed, lost or stolen Securities of such Series which have been replaced or paid orSecurities of such Series for whose payment money or securities have theretofore been held in trustand thereafter repaid to the Company, as provided in Section 8.03) have been delivered to theTrustee for cancellation and the Company has paid all sums payable by it hereunder, or (b) if,following the date on whichthe Company shall have given notice to the Trustee of its intention to defease all of theSecurities of such Series, the Company has irrevocably deposited or caused to be deposited with theTrustee or a Paying Agent (other than the Company or a Subsidiary), under the terms of anirrevocable trust agreement
 

 
 45in form and substance satisfactory to the Trustee and any such Paying Agent, as trust funds intrust solely for the benefit of the Holders for that purpose, (i) in the case of any Securities ofany Series denominated in United States dollars, an amount of cash sufficient to pay principal ofand interest on such outstanding Securities at their respective Stated Maturities, or directnon-callable obligations of, or non-callable obligations guaranteed by, the United States ofAmerica for the payment of which guarantee or obligation the full faith and credit of the UnitedStates is pledged, including but not limited to depository receipts issued by a bank as custodianwith respect to any such security heldby the custodian for the benefit of the holder of such depository receipt (“U.S. GovernmentObligations”), maturing as to principal and interest in such amounts and at such times as aresufficient without consideration of any reinvestment of such interest, to pay principal of andinterest on such outstanding Securities at their respective Stated Maturities and (ii) in the caseof any Securities of any Series denominated in any currency other than United States dollars, anamount of the Required Currency sufficient to pay principal of and interest on such outstandingSecurities at their respective Stated Maturities; *provided*that the Trustee or such Paying Agentshall have been irrevocably instructed to apply such cash, the proceeds of such U.S. GovernmentObligations or the Required Currency, as the case may be, to the payment of said principal andinterest with respect to the Securities of such Series; and *provided further,*that if suchirrevocable deposit in trust with the Trustee of cash, U.S. Government Obligations or the RequiredCurrency, as the case may be, is made on or prior to one year from the Stated Maturity for paymentof principal of the Securities of the applicable Series, the Company shall have delivered to theTrustee either an Opinion of Counsel with no material qualifications in form and substancesatisfactory to the Trustee to the effect that Holders ofsuch Securities (i) will not recognize income, gain or loss for Federal income tax purposes asa result of such deposit (and the defeasance contemplated in connection therewith) and (ii) will besubject to Federal income tax on the same amounts and in the same manner and at the same times aswould have been the case if such deposit and defeasance had not occurred, or an applicablefavorable ruling to that effect received from or published by the Internal Revenue Service.     Notwithstanding the foregoing paragraph, the Company’s obligations in Sections 2.04, 2.05,2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 7.08, 8.03 and 8.04, and except as otherwise provided in theAuthorizing Resolution and/or the supplemental indenture (if any) in respect of any Series, shallsurvive until the
 

 
 46Securities are no longer outstanding. Thereafter, the Company’s obligations in Sections 7.07,8.03 and 8.04 shall survive.     After any such irrevocable deposit the Trustee upon request shall acknowledge in writing thedischarge of the Company’s obligations under the Securities of the applicable Series and thisIndenture with respect to such Series except for those surviving obligations specified above.     Section 8.02.*Application of Trust Money*.     The Trustee or Paying Agent shall hold in trust cash, U.S. Government Obligations or theRequired Currency, as the case may be, deposited with it pursuant to Section 8.01, and shall applythe deposited cash, the money from U.S. Government Obligations or the Required Currency, as thecase may be, in accordance with this Indenture to the payment of principal of and intereston the Securities.     Section 8.03.*Repayment to Company*.     Subject to Section 8.01, the Trustee and the Paying Agent shall promptly pay to the Companyupon request any excess money held by them at any time. Subject to the provisions of applicablelaw, the Trustee and the Paying Agent shall pay to the Company upon request any money held by themfor the payment of principal or interest that remains unclaimed for two years; *provided, however,*the Trustee or such Paying Agent before being required to make any payment may at the expense ofthe Company cause to be published once in a newspaper of general circulation in The City of NewYork or mail to each Holder entitled to such money notice that such money remains unclaimed and that, aftera date specified therein which shall be at least 30 days from the date of such publication ormailing, any unclaimed balance of such money then remaining will be repaid to the Company. Afterpayment to the Company, the Trustee shall be released from all further liability with respectto such money and Securityholders entitled to money must look to the Company for payment asgeneral creditors unless an applicable abandoned property law designates another person.     Section 8.04.*Reinstatement*.     If the Trustee or Paying Agent is unable to apply any cash, U.S. Govern-ment Obligations or the Required Currency, as the case may be, in accordance with Section 8.01by reason of any legal proceeding or by reason of any order
 

 
 47or judgment of any court or governmental authority enjoining, restraining or otherwiseprohibiting such application, the Company’s obligations under this Indenture (with respect to theapplicable Series) and the Securities of the applicable Series shall be revived and reinstated asthough no deposit had occurred pursuant to Section 8.01 until such time as the Trustee or PayingAgent is permitted to apply all such cash, U.S. Government Obligations and Required Currency, asthe case may be, in accordance with Section 8.01; *provided, however,*that if the Company has madeany payment of interest on or principal of any Securities of any Series because of thereinstatement of its obligations, the Company shall be subrogated to the rights of the Holders ofsuch Securities to receive such payment from the cash, U.S. Government Obligations or the RequiredCurrency, as the case may be, held by the Trustee or Paying Agent.     Section 8.05.*Indemnity for U.S. Government Obligations*     The Company shall pay, and shall indemnify the Trustee against, any tax, fee or other chargeimposed on or assessed against U.S. Government Obligations deposited pursuant to Section 8.01 orthe principal and interest received on such U.S. Government Obligations.**ARTICLE 9**Amendments, Supplements And Waivers     Section 9.01.*Without Consent of Holders*     The Company, when authorized by a Board Resolution, and the Trusteemay amend or supplement this Indenture or the Securities of any Series without notice to orconsent of any Securityholder:     (1) to cure any ambiguity, defect or inconsistency;     (2) to comply with Article 5;     (3) to provide for uncertificated Securities in addition to certificated Securities;     (4) to secure the Securities in connection with Section 4.11;     (5) to make any change that does not adversely affect the rights of any Securityholder ofsuch Series;     (6) to provide for the issuance and the terms of any particular Series of Securities, therights and obligations of the Company and the Holders of the
 

 
 48Securities of such Series, the form or forms of the Securities of such Series and suchother matters in connection therewith as the Board of Directors of the Company shall considerappropriate, including, without limitation, provisions for (a) additional or differentcovenants, restrictions or conditions applicable to such Series, (b) additional or differentEvents of Default in respect of such Series, (c) a longer or shorter period of grace and/ornotice in respect of any provision applicable to such Series than is provided in Section 6.01, (d)immediate enforcement of any Event of Default in respect of such Series or (e) limitations uponthe remedies available in respect of any Events of Default in respect of such Series or upon therights of the holders of Securities of such Series to waive any such Event of Default; *provided,*that this paragraph (6) shall not be deemed to require the execution of a supplemental indentureto provide for the issuance of any Series of Securities unless the same shall be provided for inthe Authorizing Resolution relating thereto; or     (7) to provide for a separate Trustee for one or more Series.     Section 9.02.*With Consent of Holders*.     Subject to Section 6.07, with the written consent of the Holders of at least a majority inprincipal amount of the outstanding Securities of all Series affected thereby (voting as a singleclass), the Company, when authorized by a Board Resolution, and the Trustee may amend or supplementthis Indenture or such Securities without notice to any Securityholder. Subject to Section 6.07,the Holders of a majority in principal amount of the outstanding Securities of all Series affectedthereby (voting as a single class) may waive compliance by the Company with any provision of thisIndenture or such Securities without notice to any Securityholder; *provided,*that, only the holdersof a majority in principal amount of Securities of a particular Series may waive compliance with aprovision of this Indenture or the Securities of such Series having applicability solely to suchSeries. However, without the consent of each Securityholder affected, an amendment, supplement orwaiver, including a waiver pursuant to Section 6.04, may not:     (1) reduce the amount of Securities of such Series or all Series (voting as a singleclass), as the case may be, whose Holders must consent to an amendment, supplement or waiver;     (2) reduce the rate or change the Stated Maturity for payment of interest on any Security;     (3) reduce the principal or any premium payable upon the redemption of or change the StatedMaturity of any Security;
 

 
 49     (4) waive a Default in the payment of the principal of or interest on any Security;     (5) make any changes in Section 6.04, 6.07 or the third sentence of this Section 9.02; or     (6) make any Security payable in money other than that stated in the Security.A supplemental indenture which changes or eliminates any covenant or other provision of thisIndenture which has expressly been included solely for the benefit of one or more particular Seriesof Securities, or which modifies the rights of the Holders of Securities of such Series withrespect to such covenant or other provision, shall be deemed not to affect the rights under theIndenture of the Holders of Securities of any other Series.     It shall not be necessary for the consent of the Holders under this Section to approve theparticular form of any proposed amendment, supplement or waiver, but it shall be sufficient if suchconsent approves the substance thereof.     After an amendment, supplement or waiver under this Section becomes effective, the Companyshall mail to the Holders affected thereby a notice briefly describing the amendment, supplement orwaiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however,in any way impair or affect the validity of any such supplemental indenture.     Section 9.03.*Compliance with Trust Indenture Act*.     Every amendment to or supplement of this Indenture or the Securities shall comply with the TIAas then in effect.     Section 9.04.*Revocation and Effect of Consents*.     Until an amendment or waiver becomes effective, a consent to it by a Holder is a continuingconsent by the Holder and every subsequent Holder of such Security or portion of such Security thatevidences the same debt as the consenting Holder’s Security, even if notation of the consent is notmade on any Security. However, any such Holder or subsequent Holder may revoke in writing theconsent as to his Security or portion of a Security. Such revocation shall be effective only ifthe Trustee receives the written notice of revocation before the date the amendment, supplement orwaiver becomes effective.
 

 
 50     The Company may, but shall not be obligated to, fix a record date for the purpose ofdetermining the Holders entitled to consent to any amendment, supplement or waiver which shall beat least 30 days prior to the first solicitation of such consent. If a record date is fixed, thennotwithstanding the last two sentences of the immediately preceding paragraph, those persons whowere Holders at such record date (or their duly designated proxies), and only those persons, shallbe entitled to consent to such amendment, supplement or waiver or to revoke any consent previouslygiven, whether or not such persons continue to be Holders after such record date. No such consentshall be valid or effective for more than 90 days after such record date.     After an amendment, supplement or waiver becomes effective, it shall bind every Holder of aSecurity of such Series, unless it makes a change described in any of clauses (1) through (6) ofSection 9.02. In that case the amendment, supplement or waiver shall bind each Holder of aSecurity who has consented to it and every subsequent Holder of a Security or portion of a Securityof the same Series that evidences the same debt as the consenting Holder’s Security.     Section 9.05.*Notation On or Exchange of Securities*.     Ifan amendment, supplement or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trusteemay place an appropriate notation on the Security about the changed terms and return it to theHolder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and theTrustee shall authenticate a new Security of the same Series that reflects the changed terms.     Section 9.06.*Trustee to Sign Amendments, etc*.     The Trustee shall be entitled to receive, and shall be fully protected in relying upon, anOfficers’ Certificate and an Opinion of Counsel stating that the execution of any amendment,supplement or waiver authorized pursuantto this Article 9 is authorized or permitted by this Indenture. The Trustee may, but shallnot be obligated to, execute any such amendment, supplement or waiver which affects the Trustee’sown rights, duties or immunities under this Indenture or otherwise.
 

 
 51**ARTICLE 10**Miscellaneous     Section 10.01.*Trust Indenture Act Controls*     If any provision of this Indenture limits, qualifies, or conflicts with another provisionwhich is required to be included in this Indenture by the TIA, the required provision shallcontrol.     Section 10.02.*Notices*.     Any notice or communication shall be sufficiently given if in writing and delivered in personor mailed by first-class mail addressed as follows:if to the Company:ANR Pipeline Company