Exhibit 4.10


    
      

    


    Exhibit
      4.10

     

     

    JAMES
      RIVER COAL COMPANY

     

     

    INDENTURE

     

     

    DATED
      AS OF _______________, 200__

     

     

    _________________________,
      TRUSTEE

     

     

    


     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE
      OF CONTENTS

     

    
      	
              ARTICLE
                I

            	 	
            	 
	
              DEFINITIONS
                AND INCORPORATION BY REFERENCE

            	
            	
              1

            
	 	SECTION 1.1	
              Definitions.

            	
              1

            
	 	SECTION 1.2	
              Other
                Definitions.

            	
              4

            
	 	SECTION 1.3	
              Incorporation
                by Reference of Trust Indenture Act.

            	
              5

            
	 	SECTION 1.4	
              Rules
                Of Construction.

            	
              5

            
	
              ARTICLE
                II

            	 	
            	 
	
              THE
                SECURITIES

            	
            	
              6

            
	 	SECTION 2.1	
              Issuable
                In Series.

            	
              6

            
	 	SECTION 2.2	
              Establishment
                Of Terms Of Series Of Securities.

            	
              6

            
	 	SECTION 2.3	
              Execution
                and Authentication.

            	
              7

            
	 	SECTION 2.4 	
              Registrar
                and Paying Agent.

            	
              8

            
	 	SECTION 2.5 	
              Paying
                Agent to Hold Money in Trust.

            	
              9

            
	 	SECTION 2.6	
              Securityholder
                Lists.

            	
              9

            
	 	SECTION 2.7	
              Transfer
                and Exchange.

            	
              9

            
	 	SECTION 2.8	
              Mutilated,
                Destroyed, Lost and Stolen Securities.

            	
              9

            
	 	SECTION 2.9	
              Outstanding
                Securities.

            	
              10

            
	 	SECTION 2.10	
              Treasury
                Securities.

            	
              10

            
	 	SECTION 2.11	
              Temporary
                Securities.

            	
              10

            
	 	SECTION 2.12 	
              Cancellation.

            	
              11

            
	 	SECTION 2.13 	
              Defaulted
                Interest.

            	
              11

            
	 	SECTION 2.14	
              Global
                Securities.

            	
              11

            
	 	SECTION 2.15	
              CUSIP
                Numbers.

            	
              12

            
	
              ARTICLE
                III

            	 	
            	 
	REDEMPTION	 	
              12

            
	 	SECTION 3.1	
              Notice
                To Trustee.

            	
              12

            
	 	SECTION 3.2 	
              Selection
                of Securities to be Redeemed.

            	
              12

            
	 	SECTION 3.3	
              Notice
                of Redemption.

            	
              12

            
	 	SECTION 3.4	
              Effect
                of Notice of Redemption.

            	
              13

            
	 	SECTION 3.5 	
              Deposit
                of Redemption Price.

            	
              13

            
	 	SECTION 3.6	
              Securities
                Redeemed in Part.

            	
              13

            
	
              ARTICLE
                IV

            	 	
            	 
	
              COVENANTS

            	
               

            	
              14

            
	 	SECTION 4.1	
              Payment
                of Principal and Interest.

            	
              14

            
	 	SECTION 4.2	
              SEC
                Reports.

            	
              14

            
	 	SECTION 4.3	
              Compliance
                Certificate.

            	
              14

            
	 	SECTION 4.4	
              Stay,
                Extension and Usury Laws.

            	
              14

            
	 	SECTION 4.5	
              Corporate
                Existence.

            	
              14

            
	 	SECTION 4.6	
              Taxes.

            	
              15

            
	
              ARTICLE
                V

            	 	
            	 
	
              SUCCESSORS

            	
               

            	
              15

            
	 	SECTION 5.1	
              When
                Company May Merge, Etc.

            	
              15

            
	 	SECTION 5.2	
              Successor
                Corporation Substituted.

            	
              15

            
	
              ARTICLE
                VI

            	 	
            	 
	
              DEFAULTS
                AND REMEDIES

            	
            	
              15

            
	 	SECTION 6.1	
              Events
                of Default.

            	
              15

            
	 	SECTION 6.2 	
              Acceleration
                of Maturity; Rescission and Annulment.

            	
              16

            
	 	SECTION 6.3	
              Collection
                Of Indebtedness And Suits For Enforcement By Trustee.

            	
              17

            
	 	SECTION 6.4	
              Trustee
                May File Proofs Of Claim.

            	
              17

            
	 	SECTION 6.5 	
              Trustee
                May Enforce Claims Without Possession Of Securities.

            	
              18

            
	 	SECTION 6.6	
              Application
                of Money Collected.

            	
              18

            
	 	SECTION 6.7 	
              Limitation
                On Suits.

            	
              18

            
	 	SECTION 6.8	
              Unconditional
                Right of Holders to Receive Principal and Interest.

            	
              19

            
	 	SECTION 6.9	
              Restoration
                of Rights and Remedies.

            	
              19

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	SECTION 6.10	
              Rights
                and Remedies Cumulative.

            	
              19

            
	 	SECTION 6.11	
              Delay
                or Omission Not Waiver.

            	
              19

            
	 	SECTION 6.12	
              Control
                by Holders.

            	
              19

            
	 	SECTION 6.13	
              Waiver
                Of Past Defaults.

            	
              20

            
	 	SECTION 6.14	
              Undertaking
                For Costs.

            	
              20

            
	
              ARTICLE
                VII

            	 	
            	 
	TRUSTEE	 	
              20

            
	 	SECTION 7.1	
              Duties
                of Trustee.

            	
              20

            
	 	SECTION 7.2	
              Rights
                of Trustee.

            	
              21

            
	 	SECTION 7.3 	
              Individual
                Rights of Trustee.

            	
              22

            
	 	SECTION 7.4 	
              Trustee’s
                Disclaimer.

            	
              22

            
	 	SECTION 7.5	
              Notice
                Of Defaults.

            	
              22

            
	 	SECTION 7.6	
              Reports
                by Trustee to Holders.

            	
              23

            
	 	SECTION 7.7	
              Compensation
                and Indemnity.

            	
              23

            
	 	SECTION 7.8	
              Replacement
                of Trustee.

            	
              23

            
	 	SECTION 7.9	
              Successor
                Trustee by Merger, Etc.

            	
              24

            
	 	SECTION 7.10	
              Eligibility;
                Disqualification.

            	
              24

            
	 	SECTION 7.11	
              Referential
                Collection of Claims Against Company.

            	
              24

            
	
              ARTICLE
                VIII

            	 	
            	 
	
              SATISFACTION
                AND DISCHARGE; DEFEASANCE

            	
            	
              24

            
	 	SECTION 8.1	
              Satisfaction
                and Discharge of Indenture.

            	
              24

            
	 	SECTION 8.2	
              Application
                of Trust Funds; Indemnification.

            	
              25

            
	 	SECTION 8.3	
              Legal
                Defeasance of Securities of any Series.

            	
              26

            
	 	SECTION 8.4	
              Covenant
                Defeasance.

            	
              27

            
	 	SECTION 8.5	
              Repayment
                to Company.

            	
              27

            
	
              ARTICLE
                IX

            	 	
            	 
	
              AMENDMENTS
                AND WAIVERS

            	
            	
              28

            
	 	SECTION 9.1	
              Without
                Consent of Holders.

            	
              28

            
	 	SECTION 9.2	
              With
                Consent of Holders.

            	
              28

            
	 	SECTION 9.3 	
              Limitations.

            	
              28

            
	 	SECTION 9.4	
              Compliance
                With Trust Indenture Act.

            	
              29

            
	 	SECTION 9.5	
              Revocation
                and Effect of Consents.

            	
              29

            
	 	SECTION 9.6	
              Notation
                on or Exchange of Securities.

            	
              29

            
	 	SECTION 9.7	
              Trustee
                Protected.

            	
              30

            
	
              ARTICLE
                X

            	 	
            	 
	
              MISCELLANEOUS

            	
               

            	
              31

            
	 	SECTION 10.1	
              Trust
                Indenture Act Controls.

            	
              31

            
	 	SECTION 10.2	
              Notices.

            	
              31

            
	 	SECTION 10.3	
              Communication
                by Holders with Other Holders.

            	
              31

            
	 	SECTION 10.4	
              Certificate
                and Opinion as to Conditions Precedent.

            	
              31

            
	 	SECTION 10.5	
              Statements
                Required in Certificate or Opinion.

            	
              31

            
	 	SECTION 10.6	
              Rules
                by Trustee and Agents.

            	
              31

            
	 	SECTION 10.7	
              Legal
                Holidays.

            	
              31

            
	 	SECTION 10.8	
              No
                Recourse Against Others.

            	
              31

            
	 	SECTION 10.9	
              Counterparts.

            	
              32

            
	 	SECTION 10.10	
              Governing
                Laws.

            	
              32

            
	 	SECTION 10.11	
              No
                Adverse Interpretation of Other Agreements.

            	
              32

            
	 	SECTION 10.12	
              Successors.

            	
              32

            
	 	SECTION 10.13	
              Severability.

            	
              32

            
	 	SECTION 10.14	
              Table
                of Contents, Headings, Etc.

            	
              32

            
	
              ARTICLE
                XI

            	 	
            	 
	
              SINKING
                FUNDS

            	
            	
              32

            
	 	SECTION 11.1	
              Applicability
                of Article.

            	
              32

            
	 	SECTION 11.2	
              Satisfaction
                Of Sinking Fund Payments With Securities.

            	
              32

            
	 	SECTION 11.3	
              Redemption
                Of Securities For Sinking Fund.

            	
              33

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              ARTICLE
                XII

            	 	
            	 
	
              SUBORDINATION
                OF SECURITIES

            	
            	
              33

            
	 	SECTION 12.1	
              Agreement
                of Subordination.

            	
              33

            
	 	SECTION 12.2	
              Payments
                to Holders.

            	
              34

            
	 	SECTION 12.3	
              Subrogation
                of Securities.

            	
              35

            
	 	SECTION 12.4	
              Authorization
                to Effect Subordination.

            	
              36

            
	 	SECTION 12.5	
              Notice
                to Trustee.

            	
              36

            
	 	SECTION 12.6	
              Trustee’s
                Relation to Senior Indebtedness.

            	
              37

            
	 	SECTION 12.7	
              No
                Impairment of Subordination.

            	
              37

            
	 	SECTION 12.8	
              Article
                Applicable to Paying Agents.

            	
              37

            
	 	SECTION 12.9	
              Senior
                Indebtedness Entitled to Rely.

            	
              38

            


    

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    CROSS
      REFERENCE TABLE

     

    
      	
              Trust
                Indenture Act Section

            	Indenture
              Section
	 	 	 
	
              Section 310

            	
              (a)(1)

            	
              7.10

            
	 	
              (a)(2)

            	
              7.10

            
	 	
              (a)(3)

            	
              N/A

            
	 	
              (a)(4)

            	
              N/A

            
	 	
              (a)(5)

            	
              7.10

            
	 	
              (b)

            	
              7.10

            
	
              Section 311

            	
              (a)

            	
              7.11

            
	 	
              (b)

            	
              7.11

            
	 	
              (c)

            	
              N/A

            
	
              Section 312

            	
              (a)

            	
              2.6

            
	 	
              (b)

            	
              10.3

            
	 	
              (c)

            	
              10.3

            
	
              Section 313

            	
              (a)

            	
              7.6

            
	 	
              (b)(1)

            	
              7.6

            
	 	
              (b)(2)

            	
              7.6

            
	 	
              (c)(1)

            	
              7.6

            
	 	
              (d)

            	
              7.6

            
	
              Section 314

            	
              (a)

            	
              4.2,
                10.5

            
	 	
              (b)

            	
              N/A

            
	 	
              (c)(1)

            	
              10.4

            
	 	
              (c)(2)

            	
              10.4

            
	 	
              (c)(3)

            	
              N/A

            
	 	
              (d)

            	
              N/A

            
	 	
              (e)

            	
              10.5

            
	 	
              (f)

            	
              N/A

            
	
              Section 315

            	
              (a)

            	
              7.1

            
	 	
              (b)

            	
              7.5

            
	 	
              (c)

            	
              7.1

            
	 	
              (d)

            	
              7.1

            
	 	
              (e)

            	
              6.14

            
	
              Section 316

            	
              (a)

            	
              2.10

            
	 	
              (a)(1)(A)

            	
              6.12

            
	 	
              (a)(1)(B)

            	
              6.13

            
	 	
              (b)

            	
              6.8

            
	
              Section 317

            	
              (a)(1)

            	
              6.3

            
	 	
              (a)(2)

            	
              6.4

            
	 	
              (b)

            	
              2.5

            
	
              Section 318

            	
              (a)

            	
              10.1

            


    

    


    * This
      Cross Reference Table shall not, for any purpose, be deemed to be part of the
      Indenture.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    INDENTURE,
      dated as of _______________, 200__ between JAMES RIVER COAL COMPANY, a Virginia
      corporation (“Company”),
      and
      ____________________, as trustee (“Trustee”).

     

    Each
      party agrees as follows for the benefit of the other party and for the equal
      and
      ratable benefit of the Holders of the Securities issued under this
      Indenture:

     

    ARTICLE
      I

     

    DEFINITIONS
      AND INCORPORATION BY REFERENCE

     

    SECTION
      1.1 Definitions.

     

    “Additional
      Amounts”
means
      any additional amounts which are required hereby or by any Security, under
      circumstances specified herein or therein, to be paid by the Company in respect
      of certain taxes imposed on Holders specified herein or therein and which are
      owing to such Holders.

     

    “Affiliate”
of
      any
      specified person means any other person directly or indirectly controlling
      or
      controlled by or under direct or indirect common control with such specified
      person. For the purposes of this definition, “control” (including, with
      correlative meanings, the terms “controlled by” and “under common control
      with”), as used with respect to any person, shall mean the possession, directly
      or indirectly, of the power to direct or cause the direction of the management
      or policies of such person, whether through the ownership of voting securities
      or by agreement or otherwise.

     

    “Agent”
means
      any Registrar, Paying Agent or Service Agent.

     

    “Authorized
      Newspaper”
means
      a
      newspaper in an official language of the country of publication customarily
      published at least once a day for at least five days in each calendar week
      and
      of general circulation in the place in connection with which the term is used.
      If it shall be impractical in the opinion of the Trustee to make any publication
      of any notice required hereby in an Authorized Newspaper, any publication or
      other notice in lieu thereof that is made or given by the Trustee shall
      constitute a sufficient publication of such notice.

     

    “Bearer”
means
      anyone in possession from time to time of a Bearer Security.

     

    “Bearer
      Security”
means
      any Security, including any interest coupon appertaining thereto, that does
      not
      provide for the identification of the Holder thereof.

     

    “Board
      of Directors”
means
      the Board of Directors of the Company or any duly authorized committee
      thereof.

     

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

     

    “Business
      Day”
means,
      unless otherwise provided by Board Resolution, Officers’ Certificate or
      supplemental indenture hereto for a particular Series, any day except a
      Saturday, Sunday or a legal holiday in the City of New York on which banking
      institutions are authorized or required by law, regulation or executive order
      to
      close.

     

    “Capital
      Stock”
means
      any and all shares, interests, participations, rights or other equivalents
      (however designated) of corporate stock.

     

    “Company”
means
      the party named as such above until a successor replaces it and thereafter
      means
      the successor.

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

       

    

    “Company
      Order”
means
      a
      written order signed in the name of the Company by two Officers, one of whom
      must be the Company’s principal executive officer, principal financial officer
      or principal accounting officer.

     

    “Company
      Request”
means
      a
      written request signed in the name of the Company by its Chief Executive
      Officer, the President or a Vice President, and by its Treasurer, an Assistant
      Treasurer, its Secretary or an Assistant Secretary, and delivered to the
      Trustee.

     

    “Corporate
      Trust Office”
means
      the office of the Trustee at which at any particular time its corporate trust
      business shall be principally administered.

     

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

     

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

     

    “Designated
      Senior Indebtedness”
means
      any of our senior indebtedness that expressly provides that it is “designated
      senior indebtedness” for purposes of this Indenture (provided that the
      instrument, agreement or other document creating or evidencing such Senior
      Indebtedness may place limitations and conditions on the right of such Senior
      Indebtedness to exercise the rights of Designated Senior
      Indebtedness).

     

    “Discount
      Security”
means
      any Security that provides for an amount less than the stated principal amount
      thereof to be due and payable upon declaration of acceleration of the maturity
      thereof pursuant to Section 6.2.

     

    “Dollars”
and
      “$”
means
      the currency of The United States of America.

     

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

     

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

     

    “Global
      Security”
or
      “Global
      Securities”
means
      a
      Security or Securities, as the case may be, in the form established pursuant
      to
Section 2.2
      evidencing all or part of a Series of Securities, issued to the Depository
      for
      such Series or its nominee, and registered in the name of such Depository or
      nominee.

     

    “Holder”
or
      “Securityholder”
means
      a
      person in whose name a Security is registered or the holder of a Bearer
      Security.

     

    “indebtedness”
means,
      with respect to any person, and without duplication, (a) all indebtedness,
      obligations and other liabilities (contingent or otherwise) of such person
      for
      borrowed money (including obligations of the Company in respect of overdrafts,
      foreign exchange contracts, currency exchange agreements, interest rate
      protection agreements, and any loans or advances from banks, whether or not
      evidenced by notes or similar instruments) or evidenced by bonds, debentures,
      notes or similar instruments (whether or not the recourse of the lender is
      to
      the whole of the assets of such person or to only a portion thereof) (other
      than
      any account payable or other accrued current liability or obligation incurred
      in
      the ordinary course of business in connection with the obtaining of materials
      or
      services), (b) all reimbursement obligations and other liabilities
      (contingent or otherwise) of such person with respect to letters of credit,
      bank
      guarantees or bankers’ acceptances, (c) all obligations and liabilities
      (contingent or otherwise) in respect of leases of such person required, in
      conformity with generally accepted accounting principles, to be accounted for
      as
      capitalized lease obligations on the balance sheet of such person and all
      obligations and other liabilities (contingent or otherwise) under any lease
      or
      related document (including a purchase agreement) in connection with the lease
      of real property which provides that such person is contractually obligated
      to
      purchase or cause a third party to purchase the leased property and thereby
      guarantee a minimum residual value of the leased property to the lessor and
      the
      obligations of such person under such lease or related document to purchase
      or
      to cause a third party to purchase such leased property, (d) all
      obligations of such person (contingent or otherwise) with respect to an interest
      rate or other swap, cap or collar agreement or other similar instrument or
      agreement or foreign currency hedge, exchange, purchase or similar instrument
      or
      agreement, (e) all direct or indirect guaranties or similar agreements by
      such person in respect of, and obligations or liabilities (contingent or
      otherwise) of such person to purchase or otherwise acquire or otherwise assure
      a
      creditor against loss in respect of indebtedness, obligations or liabilities
      of
      another person of the kind described in clauses (a) through (d),
      (f) any indebtedness or other obligations described in clauses
      (a) through (e) secured by any mortgage, pledge, lien or other
      encumbrance existing on property which is owned or held by such person,
      regardless of whether the indebtedness or other obligation secured thereby
      shall
      have been assumed by such person and (g) any and all refinancings,
      replacements, deferrals, renewals, extensions and refundings of, or amendments,
      modifications or supplements to, any indebtedness, obligation or liability
      of
      the kind described in clauses (a) through (f).

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

       

    

    “Indenture”
means
      this Indenture as amended or supplemented, from time to time and shall include
      the form and terms of particular Series of Securities established as
      contemplated hereunder.

     

    “interest”
with
      respect to any Discount Security which by its terms bears interest only after
      Maturity, means interest payable after Maturity.

     

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

     

    “Officer”
means
      the Chief Executive Officer, the President, any Vice President, the Treasurer,
      the Secretary, any Assistant Treasurer or any Assistant Secretary of the
      Company.

     

    “Officers’
      Certificate”
means
      a
      certificate signed by two Officers, one of whom must be the Company’s principal
      executive officer, principal financial officer or principal accounting
      officer.

     

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

     

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

     

    “principal”
of
      a
      Security means the principal of the Security plus, when appropriate, the
      premium, if any, on, and any Additional Amounts in respect of, the
      Security.

     

    “Representative”
means
      the (a) indenture trustee or other trustee, agent or representative for any
      Senior Indebtedness or (b) with respect to any Senior Indebtedness that
      does not have any such trustee, agent or other representative, (i) in the
      case of such Senior Indebtedness issued pursuant to an agreement providing
      for
      voting arrangements as among the holders or owners of such Senior Indebtedness,
      any holder or owner of such Senior Indebtedness acting with the consent of
      the
      required persons necessary to bind such holders or owners of such Senior
      Indebtedness and (ii) in the case of all other such Senior Indebtedness,
      the holder or owner of such Senior Indebtedness.

     

    “Responsible
      Officer”
means
      any officer of the Trustee in its Corporate Trust Office and also means, with
      respect to a particular corporate trust matter, any other officer to whom any
      corporate trust matter is referred because of his or her knowledge of and
      familiarity with a particular subject.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    “SEC”
means
      the Securities and Exchange Commission.

     

    “Securities”
means
      the debentures, notes or other debt instruments of the Company of any Series
      authenticated and delivered under this Indenture.

     

    “Senior
      Indebtedness”
means
      the principal, premium, if any, and interest, including any interest accruing
      after bankruptcy, and rent or termination payment on or other amounts due on
      our
      current or future Indebtedness, whether created, incurred, assumed, guaranteed
      or in effect guaranteed by us, including any deferrals, renewals, extensions,
      refundings, amendments, modifications or supplements to the above. However,
      Senior Indebtedness does not include: (i) Indebtedness that expressly provides
      that it shall not be senior in right of payment to the Securities or expressly
      provides that it is on the same basis or junior to the Securities; (ii) our
      indebtedness to any of our majority-owned subsidiaries; and (iii) the
      Securities.

     

    “Series”
or
      “Series
      of Securities”
means
      each series of debentures, notes or other debt instruments of the Company
      created pursuant to Sections 2.1
      and 2.2
      hereof.

     

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

     

    “Subsidiary”
of
      any
      specified person means any corporation, association or other business entity
      of
      which more than 50% of the total voting power of shares of Capital Stock
      entitled (without regard to the occurrence of any contingency) to vote in the
      election of directors, managers or trustees thereof is at the time owned or
      controlled, directly or indirectly, by such person or one or more of the other
      Subsidiaries of that person or a combination thereof.

     

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

     

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

     

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

     

    SECTION
      1.2 Other
      Definitions.

     

    
      	
              Term

            	 	
              Defined
                in Section

            	 
	
              Bankruptcy
                Law

            	 	 	
              6.1

            	 
	
              Custodian

            	 	 	
              6.1

            	 
	
              Event
                of Default

            	 	 	
              6.1

            	 
	
              Legal
                Holiday

            	 	 	
              10.7

            	 
	
              mandatory
                sinking fund payment

            	 	 	
              11.1

            	 
	
              optional
                sinking fund payment

            	 	 	
              11.1

            	 
	
              Paying
                Agent

            	 	 	
              2.4

            	 
	
              Payment
                Blockage Date

            	 	 	
              12.2

            	 
	
              Registrar

            	 	 	
              2.4

            	 
	
              Service
                Agent

            	 	 	
              2.4

            	 
	
              successor
                person

            	
            	
            	
              5.1

            	
            


    

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    SECTION
      1.3 Incorporation
      by Reference of Trust Indenture Act.

     

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

     

    “Commission”
means
      the SEC.

     

    “indenture
      securities”
means
      the Securities.

     

    “indenture
      security holder”
means
      a
      Securityholder.

     

    “indenture
      to be qualified”
means
      this Indenture.

     

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

     

    “obligor”
on
      the
      indenture securities means the Company and any successor obligor upon the
      Securities.

     

    All
      other
      terms used in this Indenture that are defined by the TIA, defined by TIA
      reference to another statute or defined by SEC rule under the TIA and not
      otherwise defined herein are used herein as so defined.

     

    SECTION
      1.4 Rules
      Of Construction.

     

    Unless
      the context otherwise requires:

     

    
      	 	
              (a)

            	
              a
                term has the meaning assigned to it;

            
	 	 	 
	 	
              (b)

            	
              an
                accounting term not otherwise defined has the meaning assigned to
                it in
                accordance with generally accepted accounting
                principles;

            
	 	 	 
	 	
              (c)

            	
              references
                to “generally accepted accounting principles” and “GAAP” shall mean
                generally accepted accounting principles in effect as of the time
                when and
                for the period as to which such accounting principles are to be
                applied;

            
	 	 	 
	 	
              (d)

            	
              “or”
                is not exclusive;

            
	 	 	 
	 	
              (e)

            	
              words
                in the singular include the plural, and in the plural include the
                singular; and

            
	 	 	 
	 	
              (f)

            	
              provisions
                apply to successive events and
                transactions.

            


    

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      II

     

    THE
      SECURITIES

     

    SECTION
      2.1 Issuable
      In Series.

     

    The
      aggregate principal amount of Securities that may be authenticated and delivered
      under this Indenture is unlimited. The Securities may be issued in one or more
      Series. All Securities of a Series shall be identical except as may be set
      forth
      or determined in the manner provided in a Board Resolution, supplemental
      indenture or Officers’ Certificate detailing the adoption of the terms thereof
      pursuant to authority granted under a Board Resolution. In the case of
      Securities of a Series to be issued from time to time, the Board Resolution,
      Officers’ Certificate or supplemental indenture detailing the adoption of the
      terms thereof pursuant to authority granted under a Board Resolution may provide
      for the method by which specified terms (such as interest rate, maturity date,
      record date or date from which interest shall accrue) are to be determined.
      Securities may differ between Series in respect of any matters, provided that
      all Series of Securities shall be equally and ratably entitled to the benefits
      of the Indenture, but all Securities issued hereunder shall be subordinate
      and
      junior in right of payment, to the extent and in the manner set forth in
Article XII,
      to all
      Senior Indebtedness of the Company.

     

    SECTION
      2.2 Establishment
      Of Terms Of Series Of Securities.

     

    At
      or
      prior to the issuance of any Securities within a Series, the following shall
      be
      established (as to the Series generally, in the case of Subsection
      2.2.1
      and
      either as to such Securities within the Series or as to the Series generally
      in
      the case of Subsections
      2.2.2 through 2.2.21)
      by or
      pursuant to a Board Resolution, and set forth or determined in the manner
      provided in a Board Resolution, supplemental indenture or an Officers’
Certificate:

     

    2.2.1 the
      title
      of the Series (which shall distinguish the Securities of that particular Series
      from the Securities of any other Series);

     

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

     

    2.2.3 any
      limit
      upon the aggregate principal amount of the Securities of the Series which may
      be
      authenticated and delivered under this Indenture (except for Securities
      authenticated and delivered upon registration of transfer of, or in exchange
      for, or in lieu of, other Securities of the Series pursuant to Section 2.7,
      2.8, 2.11, 3.6 or 9.6);

     

    2.2.4 the
      date
      or dates on which the principal of the Securities of the Series is
      payable;

     

    2.2.5 the
      rate
      or rates (which may be fixed or variable) per annum or, if applicable, the
      method used to determine such rate or rates (including, but not limited to,
      any
      commodity, commodity index, stock exchange index or financial index) at which
      the Securities of the Series shall bear interest, if any, the date or dates
      from
      which such interest, if any, shall accrue, the date or dates on which such
      interest, if any, shall commence and be payable and any regular record date
      for
      the interest payable on any interest payment date;

     

    2.2.6 the
      place
      or places where the principal of and interest, if any, on the Securities of
      the
      Series shall be payable, where the Securities of such Series may be surrendered
      for registration of transfer or exchange and where notices and demands to or
      upon the Company in respect of the Securities of such Series and this Indenture
      may be served, and the method of such payment, if by wire transfer, mail or
      other means;

     

    2.2.7 if
      applicable, the period or periods within which, the price or prices at which
      and
      the terms and conditions upon which the Securities of the Series may be
      redeemed, in whole or in part, at the option of the Company;

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

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

     

    2.2.9 the
      dates, if any, on which and the price or prices at which the Securities of
      the
      Series will be repurchased by the Company at the option of the Holders thereof
      and other detailed terms and provisions of such repurchase
      obligations;

     

    2.2.10 if
      other
      than denominations of $1,000 and any integral multiple thereof, the
      denominations in which the Securities of the Series shall be
      issuable;

     

    2.2.11 the
      forms
      of the Securities of the Series in bearer or fully registered form (and, if
      in
      fully registered form, whether the Securities will be issuable as Global
      Securities);

     

    2.2.12 if
      other
      than the principal amount thereof, the portion of the principal amount of the
      Securities of the Series that shall be payable upon declaration of acceleration
      of the maturity thereof pursuant to Section 6.2;

     

    2.2.13 the
      provisions, if any, relating to any security provided for the Securities of
      the
      Series;

     

    2.2.14 any
      addition to or change in the Events of Default which applies to any Securities
      of the Series and any change in the right of the Trustee or the requisite
      Holders of such Securities to declare the principal amount thereof due and
      payable pursuant to Section 6.2;

     

    2.2.15 any
      addition to or change in the covenants set forth in Articles
      IV or V
      which
      applies to Securities of the Series;

     

    2.2.16 any
      other
      terms of the Securities of the Series (which may modify or delete any provision
      of this Indenture insofar as it applies to such Series); and

     

    2.2.17 any
      depositories, interest rate calculation agents, exchange rate calculation agents
      or other agents with respect to Securities of such Series if other than those
      appointed herein.

     

    All
      Securities of any one Series need not be issued at the same time and may be
      issued from time to time, consistent with the terms of this Indenture, if so
      provided by or pursuant to the Board Resolution, supplemental indenture hereto
      or Officers’ Certificate referred to above, and the authorized principal amount
      of any Series may not be increased to provide for issuances of additional
      Securities of such Series, unless otherwise provided in such Board Resolution,
      supplemental indenture or Officers’ Certificate.

     

    SECTION
      2.3 Execution
      and Authentication.

     

    Two
      Officers shall sign the Securities for the Company by manual or facsimile
      signature.

     

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

     

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

     

    The
      Trustee shall at any time, and from time to time, authenticate Securities for
      original issue in the principal amount provided in the Board Resolution,
      supplemental indenture hereto or Officers’ Certificate, upon receipt by the
      Trustee of a Company Order. Such Company Order may authorize authentication
      and
      delivery pursuant to oral or electronic instructions from the Company or its
      duly authorized agent or agents, which oral instructions shall be promptly
      confirmed in writing. Each Security shall be dated the date of its
      authentication unless otherwise provided by a Board Resolution, a supplemental
      indenture hereto or an Officers’ Certificate.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    The
      aggregate principal amount of Securities of any Series outstanding at any time
      may not exceed any limit upon the maximum principal amount for such Series
      set
      forth in the Board Resolution, supplemental indenture hereto or Officers’
Certificate delivered pursuant to Section 2.2,
      except
      as provided in Section 2.8.

     

    Prior
      to
      the issuance of Securities of any Series, the Trustee shall have received and
      (subject to Section 7.2)
      shall
      be fully protected in relying on: (a) the Board Resolution, supplemental
      indenture hereto or Officers’ Certificate establishing the form of the
      Securities of that Series or of Securities within that Series and the terms
      of
      the Securities of that Series or of Securities within that Series, (b) an
      Officers’ Certificate complying with Section 10.4,
      and
      (c) an Opinion of Counsel complying with Section 10.4.

     

    The
      Trustee shall have the right to decline to authenticate and deliver any
      Securities of such Series: (a) if the Trustee, being advised by counsel,
      determines that such action may not be taken lawfully; or (b) if the
      Trustee in good faith by its board of directors or trustees, executive committee
      or a trust committee of directors and/or Vice Presidents shall determine that
      such action would expose the Trustee to personal liability to Holders of any
      then outstanding Series of Securities.

     

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

     

    SECTION
      2.4 Registrar
      and Paying Agent.

     

    The
      Company shall maintain, with respect to each Series of Securities, at the place
      or places specified with respect to such Series pursuant to Section
      2.2,
      an
      office or agency where Securities of such Series may be presented or surrendered
      for payment (“Paying
      Agent”),
      where
      Securities of such Series may be surrendered for registration of transfer or
      exchange (“Registrar”)
      and
      where notices and demands to or upon the Company in respect of the Securities
      of
      such Series and this Indenture may be served (“Service
      Agent”).
      The
      Registrar shall keep a register with respect to each Series of Securities and
      to
      their transfer and exchange. The Company will give prompt written notice to
      the
      Trustee of the name and address, and any change in the name or address, of
      each
      Registrar, Paying Agent or Service Agent. If at any time the Company shall
      fail
      to maintain any such required Registrar, Paying Agent or Service Agent or shall
      fail to furnish the Trustee with the name and address thereof, such
      presentations, surrenders, notices and demands may be made or served at the
      Corporate Trust Office of the Trustee, and the Company hereby appoints the
      Trustee as its agent to receive all such presentations, surrenders, notices
      and
      demands.

     

    The
      Company may also from time to time designate one or more co-registrars,
      additional paying agents or additional service agents and may from time to
      time
      rescind such designations; provided, however, that no such designation or
      rescission shall in any manner relieve the Company of its obligations to
      maintain a Registrar, Paying Agent and Service Agent in each place so specified
      pursuant to Section 2.2
      for
      Securities of any Series for such purposes. The Company will give prompt written
      notice to the Trustee of any such designation or rescission and of any change
      in
      the name or address of any such co-registrar, additional paying agent or
      additional service agent. The term “Registrar” includes any co-registrar; the
      term “Paying Agent” includes any additional paying agent; and the term “Service
      Agent” includes any additional service agent.

     

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

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    SECTION
      2.5 Paying
      Agent to Hold Money in Trust.

     

    The
      Company shall require each Paying Agent other than the Trustee to agree in
      writing that the Paying Agent will hold in trust, for the benefit of
      Securityholders of any Series of Securities, or the Trustee, all money held
      by
      the Paying Agent for the payment of principal of or interest on the Series
      of
      Securities, and will notify the Trustee of any default by the Company in making
      any such payment. While any such default continues, the Trustee may require
      a
      Paying Agent to pay all money held by it to the Trustee. The Company at any
      time
      may require a Paying Agent to pay all money held by it to the Trustee. Upon
      payment over to the Trustee, the Paying Agent (if other than the Company or
      a
      Subsidiary of the Company) shall have no further liability for the money. If
      the
      Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate
      and hold in a separate trust fund for the benefit of Securityholders of any
      Series of Securities all money held by it as Paying Agent.

     

    SECTION
      2.6 Securityholder
      Lists.

     

    The
      Trustee shall preserve in as current a form as is reasonably practicable the
      most recent list available to it of the names and addresses of Securityholders
      of each Series of Securities and shall otherwise comply with TIA
      Section 312(a). If the Trustee is not the Registrar, the Company shall
      furnish to the Trustee at least ten days before each interest payment date
      and
      at such other times as the Trustee may request in writing a list, in such form
      and as of such date as the Trustee may reasonably require, of the names and
      addresses of Securityholders of each Series of Securities.

     

    SECTION
      2.7 Transfer
      and Exchange.

     

    Where
      Securities of a Series are presented to the Registrar or a co-registrar with
      a
      request to register a transfer or to exchange them for an equal principal amount
      of Securities of the same Series, the Registrar shall register the transfer
      or
      make the exchange if its requirements for such transactions are met. To permit
      registrations of transfers and exchanges, the Trustee shall authenticate
      Securities at the Registrar’s request. No service charge shall be made for any
      registration of transfer or exchange (except as otherwise expressly permitted
      herein), but the Company may require payment of a sum sufficient to cover any
      transfer tax or similar governmental charge payable in connection therewith
      (other than any such transfer tax or similar governmental charge payable upon
      exchanges pursuant to Sections 2.11,
      3.6 or 9.6).

     

    Neither
      the Company nor the Registrar shall be required (a) to issue, register the
      transfer of, or exchange Securities of any Series for the period beginning
      at
      the opening of business fifteen days immediately preceding the mailing of a
      notice of redemption of Securities of that Series selected for redemption and
      ending at the close of business on the day of such mailing, or (b) to
      register the transfer of or exchange Securities of any Series selected, called
      or being called for redemption as a whole or the portion being redeemed of
      any
      such Securities selected, called or being called for redemption in
      part.

     

    SECTION
      2.8 Mutilated,
      Destroyed, Lost and Stolen Securities.

     

    If
      any
      mutilated Security is surrendered to the Trustee, the Company shall execute
      and
      the Trustee shall authenticate and make available for delivery in exchange
      therefor a new Security of the same Series and of like tenor and principal
      amount and bearing a number not contemporaneously outstanding.

     

    If
      there
      shall be delivered to the Company and the Trustee (i) evidence to their
      satisfaction of the destruction, loss or theft of any Security and (ii) such
      security or indemnity as may be required by them to save each of them and any
      agent of either of them harmless, then, in the absence of notice to the Company
      or the Trustee that such Security has been acquired by a bona fide purchaser,
      the Company shall execute and upon its request the Trustee shall authenticate
      and make available for delivery, in lieu of any such destroyed, lost or stolen
      Security, a new Security of the same Series and of like tenor and principal
      amount and bearing a number not contemporaneously outstanding.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    In
      case
      any such mutilated, destroyed, lost or stolen Security has become or is about
      to
      become due and payable, the Company in its discretion may, instead of issuing
      a
      new Security, pay such Security.

     

    Upon
      the
      issuance of any new Security under this Section, the Company may require the
      payment of a sum sufficient to cover any tax or other governmental charge that
      may be imposed in relation thereto and any other expenses (including the fees
      and expenses of the Trustee) connected therewith.

     

    Every
      new
      Security of any Series issued pursuant to this Section in lieu of any destroyed,
      lost or stolen Security shall constitute an original additional contractual
      obligation of the Company, whether or not the destroyed, lost or stolen Security
      shall be at any time enforceable by anyone, and shall be entitled to all the
      benefits of this Indenture equally and proportionately with any and all other
      Securities of that Series duly issued hereunder.

     

    The
      provisions of this Section are exclusive and shall preclude (to the extent
      lawful) all other rights and remedies with respect to the replacement or payment
      of mutilated, destroyed, lost or stolen Securities.

     

    SECTION
      2.9 Outstanding
      Securities.

     

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

     

    If
      a
      Security is replaced pursuant to Section 2.8,
      it
      ceases to be outstanding until the Trustee receives proof satisfactory to it
      that the replaced Security is held by a bona fide purchaser.

     

    If
      the
      Paying Agent (other than the Company, a Subsidiary of the Company or an
      Affiliate of the Company) holds on the Maturity of Securities of a Series money
      sufficient to pay such Securities payable on that date, then on and after that
      date such Securities of the Series cease to be outstanding and interest on
      them
      ceases to accrue.

     

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

     

    In
      determining whether the Holders of the requisite principal amount of outstanding
      Securities have given any request, demand, authorization, direction, notice,
      consent or waiver hereunder, the principal amount of a Discount Security that
      shall be deemed to be outstanding for such purposes shall be the amount of
      the
      principal thereof that would be due and payable as of the date of such
      determination upon a declaration of acceleration of the Maturity thereof
      pursuant to Section 6.2.

     

    SECTION
      2.10 Treasury
      Securities.

     

    In
      determining whether the Holders of the required principal amount of Securities
      of a Series have concurred in any request, demand, authorization, direction,
      notice, consent or waiver, Securities of a Series owned by the Company shall
      be
      disregarded, except that for the purposes of determining whether the Trustee
      shall be protected in relying on any such request, demand, authorization,
      direction, notice, consent or waiver, only Securities of a Series that the
      Trustee knows are so owned shall be so disregarded.

     

    SECTION
      2.11 Temporary
      Securities.

     

    Until
      definitive Securities are ready for delivery, the Company may prepare and the
      Trustee shall authenticate temporary Securities upon a Company Order. Temporary
      Securities shall be substantially in the form of definitive Securities but
      may
      have variations that the Company considers appropriate for temporary Securities.
      Without unreasonable delay, the Company shall prepare and the Trustee upon
      request shall authenticate definitive Securities of the same Series and date
      of
      maturity in exchange for temporary Securities. Until so exchanged, temporary
      securities shall have the same rights under this Indenture as the definitive
      Securities.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    SECTION
      2.12 Cancellation.

     

    The
      Company at any time may deliver Securities to the Trustee for cancellation.
      The
      Registrar and the Paying Agent shall forward to the Trustee any Securities
      surrendered to them for registration of transfer, exchange or payment. The
      Trustee shall cancel all Securities surrendered for transfer, exchange, payment,
      replacement or cancellation and deliver such canceled Securities to the Company,
      unless the Company otherwise directs; provided that the Trustee shall not be
      required to destroy Securities. The Company may not issue new Securities to
      replace Securities that 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 a Series of Securities, it shall
      pay the defaulted interest, plus, to the extent permitted by law, any interest
      payable on the defaulted interest, to the persons who are Securityholders of
      the
      Series on a subsequent special record date. The Company shall fix the record
      date and payment date. At least 10 days before the record date, the Company
      shall mail to the Trustee and to each Securityholder of the Series a notice
      that
      states the record date, the payment date and the amount of interest to be paid.
      The Company may pay defaulted interest in any other lawful manner.

     

    SECTION
      2.14 Global
      Securities.

     

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

     

    2.14.2 Transfer
      And Exchange.
      Notwithstanding any provisions to the contrary contained in Section 2.7
      of the
      Indenture and in addition thereto, any Global Security shall be exchangeable
      pursuant to Section 2.7
      of the
      Indenture for Securities registered in the names of Holders other than the
      Depository for such Security or its nominee only if (i) such Depository
      notifies the Company that it is unwilling or unable to continue as Depository
      for such Global Security or if at any time such Depository ceases to be a
      clearing agency registered under the Exchange Act, and, in either case, the
      Company fails to appoint a successor Depository registered as a clearing agency
      under the Exchange Act within 90 days of such event, (ii) the Company
      executes and delivers to the Trustee an Officers’ Certificate to the effect that
      such Global Security shall be so exchangeable or (iii) an Event of Default
      with respect to the Securities represented by such Global Security shall have
      happened and be continuing. Any Global Security that is exchangeable pursuant
      to
      the preceding sentence shall be exchangeable for Securities registered in such
      names as the Depository shall direct in writing in an aggregate principal amount
      equal to the principal amount of the Global Security with like tenor and
      terms.

     

    Except
      as
      provided in this Section 2.14.2,
      a
      Global Security may not be transferred except as a whole by the Depository
      with
      respect to such Global Security to a nominee of such Depository, by a nominee
      of
      such Depository to such Depository or another nominee of such Depository or
      by
      the Depository or any such nominee to a successor Depository or a nominee of
      such a successor Depository.

     

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

     

    “This
      Security is a Global Security within the meaning of the Indenture hereinafter
      referred to and is registered in the name of the Depository or a nominee of
      the
      Depository. This Security is exchangeable for Securities registered in the
      name
      of a person other than the Depository or its nominee only in the limited
      circumstances described in the Indenture, and may not be transferred except
      as a
      whole by the Depository to a nominee of the Depository, by a nominee of the
      Depository to the Depository or another nominee of the Depository or by the
      Depository or any such nominee to a successor Depository or a nominee of such
      a
      successor Depository.”

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    2.14.4 Acts
      Of Holders.
      The
      Depository, as a Holder, may appoint agents and otherwise authorize participants
      to give or take any request, demand, authorization, direction, notice, consent,
      waiver or other action which a Holder is entitled to give or take under the
      Indenture.

     

    2.14.5 Payments.
      Notwithstanding the other provisions of this Indenture, unless otherwise
      specified as contemplated by Section 2.2,
      payment
      of the principal of and interest, if any, on any Global Security shall be made
      to the Holder thereof.

     

    2.14.6 Consents,
      Declaration And Directions.
      Except
      as provided in Section
      2.14.5,
      the
      Company, the Trustee and any Agent shall treat a person as the Holder of such
      principal amount of outstanding Securities of such Series represented by a
      Global Security as shall be specified in a written statement of the Depository
      with respect to such Global Security, for purposes of obtaining any consents,
      declarations, waivers or directions required to be given by the Holders pursuant
      to this Indenture.

     

    SECTION
      2.15 CUSIP
      Numbers.

     

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

     

    ARTICLE
      III

     

    REDEMPTION

     

    SECTION
      3.1 Notice
      To Trustee.

     

    The
      Company may, with respect to any Series of Securities, reserve the right to
      redeem and pay the Series of Securities or may covenant to redeem and pay the
      Series of Securities or any part thereof prior to the Stated Maturity thereof
      at
      such time and on such terms as provided for in such Securities. If a Series
      of
      Securities is redeemable and the Company wants or is obligated to redeem prior
      to the Stated Maturity thereof all or part of the Series of Securities pursuant
      to the terms of such Securities, it shall notify the Trustee of the redemption
      date and the principal amount of Series of Securities to be redeemed. The
      Company shall give the notice at least 45 days before the redemption date
      (or such shorter notice as may be acceptable to the Trustee).

     

    SECTION
      3.2 Selection
      of Securities to be Redeemed.

     

    Unless
      otherwise indicated for a particular Series by a Board Resolution, a
      supplemental indenture or an Officers’ Certificate, if less than all the
      Securities of a Series are to be redeemed, the Trustee shall select the
      Securities of the Series to be redeemed in any manner that the Trustee deems
      fair and appropriate. The Trustee shall make the selection from Securities
      of
      the Series outstanding not previously called for redemption. The Trustee may
      select for redemption portions of the principal of Securities of the Series
      that
      have denominations larger than $1,000. Securities of the Series and portions
      of
      them it selects shall be in amounts of $1,000 or whole multiples of $1,000
      or,
      with respect to Securities of any Series issuable in other denominations
      pursuant to Section 2.2.10,
      the
      minimum principal denomination for each Series and integral multiples thereof.
      Provisions of this Indenture that apply to Securities of a Series called for
      redemption also apply to portions of Securities of that Series called for
      redemption.

     

    SECTION
      3.3 Notice
      of Redemption.

     

    Unless
      otherwise indicated for a particular Series by Board Resolution, a supplemental
      indenture hereto or an Officers’ Certificate, at least 30 days but not more
      than 60 days before a redemption date, the Company shall mail a notice of
      redemption by first-class mail to each Holder whose Securities are to be
      redeemed and, if any Bearer Securities are outstanding, publish on one occasion
      a notice in an Authorized Newspaper.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

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

     

    
      	 	
              (a)

            	
              the
                redemption date;

            
	 	 	 
	 	
              (b)

            	
              the
                redemption price;

            
	 	 	 
	 	
              (c)

            	
              the
                name and address of the Paying Agent;

            
	 	 	 
	 	
              (d)

            	
              that
                Securities of the Series called for redemption must be surrendered
                to the
                Paying Agent to collect the redemption price;

            
	 	 	 
	 	
              (e)

            	
              that
                interest on Securities of the Series called for redemption ceases
                to
                accrue on and after the redemption date;

            
	 	 	 
	 	
              (f)

            	
              the
                CUSIP number, if any; and

            
	 	 	 
	 	
              (g)

            	
              any
                other information as may be required by the terms of the particular
                Series
                or the Securities of a Series being
                redeemed.

            


    

     

    At
      the
      Company’s request, the Trustee shall give the notice of redemption in the
      Company’s name and at its expense.

     

    SECTION
      3.4 Effect
      of Notice of Redemption.

     

    Once
      notice of redemption is mailed or published as provided in Section
      3.3,
      Securities of a Series called for redemption become due and payable on the
      redemption date and at the redemption price. A notice of redemption may not
      be
      conditional. Upon surrender to the Paying Agent, such Securities shall be paid
      at the redemption price plus accrued interest to the redemption date, provided
      that installments of interest whose Stated Maturity is on or prior to the
      redemption date shall be payable to the Holders of such Securities (or one
      or
      more predecessor Securities) registered at the close of business on the relevant
      record date therefor according to their terms and the terms of this
      Indenture.

     

    SECTION
      3.5 Deposit
      of Redemption Price.

     

    On
      or
      before the redemption date, the Company shall deposit with the Paying Agent
      money sufficient to pay the redemption price of and accrued interest, if any,
      on
      all Securities to be redeemed on that date.

     

    SECTION
      3.6 Securities
      Redeemed in Part.

     

    Upon
      surrender of a Security that is redeemed in part, the Trustee shall authenticate
      for the Holder a new Security of the same Series and the same maturity equal
      in
      principal amount to the unredeemed portion of the Security
      surrendered.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

       

    

    ARTICLE
      IV

     

    COVENANTS

     

    SECTION
      4.1 Payment
      of Principal and Interest.

     

    The
      Company covenants and agrees for the benefit of the Holders of each Series
      of
      Securities that it will duly and punctually pay the principal of and interest,
      if any, on the Securities of that Series in accordance with the terms of such
      Securities and this Indenture.

     

    SECTION
      4.2 SEC
      Reports.

     

    The
      Company shall deliver to the Trustee within 15 days after it files them
      with the SEC copies of the annual reports and of the information, documents,
      and
      other reports (or copies of such portions of any of the foregoing as the SEC
      may
      by rules and regulations prescribe) which the Company is required to file with
      the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company
      also shall comply with the other provisions of TIA Section 314(a). Delivery
      of such reports, information and documents to the Trustee is for informational
      purposes only and the Trustee’s receipt of such shall not constitute
      constructive notice of any information contained therein or determinable from
      information contained therein, including the Company’s compliance with any of
      its covenants hereunder (as to which the Trustee is entitled to rely exclusively
      on an Officers’ Certificate).

     

    SECTION
      4.3 Compliance
      Certificate.

     

    The
      Company shall deliver to the Trustee, within 120 days after the end of each
      fiscal year of the Company, an Officers’ Certificate stating that a review of
      the activities of the Company and its Subsidiaries during the preceding fiscal
      year has been made under the supervision of the signing Officers with a view
      to
      determining whether the Company has kept, observed, performed and fulfilled
      its
      obligations under this Indenture, and further stating, as to each such Officer
      signing such certificate, that to the best of his/her knowledge the Company
      has
      kept, observed, performed and fulfilled each and every covenant contained in
      this Indenture and is not in default in the performance or observance of any
      of
      the terms, provisions and conditions hereof (or, if a Default or Event of
      Default shall have occurred, describing all such Defaults or Events of Default
      of which he may have knowledge).

     

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

     

    SECTION
      4.4 Stay,
      Extension and Usury Laws.

     

    The
      Company covenants (to the extent that it may lawfully do so) that it will not
      at
      any time insist upon, plead, or in any manner whatsoever claim or take the
      benefit or advantage of, any stay, extension or usury law wherever enacted,
      now
      or at any time hereafter in force, which may affect the covenants or the
      performance of this Indenture or the Securities and the Company (to the extent
      it may lawfully do so) hereby expressly waives all benefit or advantage of
      any
      such law and covenants that it will not, by resort to any such law, 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
      has been enacted.

     

    SECTION
      4.5 Corporate
      Existence.

     

    Subject
      to Article V,
      the
      Company will do or cause to be done all things necessary to preserve and keep
      in
      full force and effect its corporate existence and the rights (charter and
      statutory), licenses and franchises of the Company; provided, however, that
      the
      Company shall not be required to preserve any such right, license or franchise
      if the Board of Directors shall determine that the preservation thereof is
      no
      longer desirable in the conduct of the business of the Company and its
      Subsidiaries taken as a whole and that the loss thereof is not adverse in any
      material respect to the Holders.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    SECTION
      4.6 Taxes.

     

    The
      Company shall pay prior to delinquency all taxes, assessments and governmental
      levies, except as contested in good faith and by appropriate
      proceedings.

     

    ARTICLE
      V

     

    SUCCESSORS

     

    SECTION
      5.1 When
      Company May Merge, Etc.

     

    The
      Company shall not consolidate with or merge with or into, or convey, transfer
      or
      lease all or substantially all of its properties and assets to, any person
      (a
“successor
      person”)
      unless:

     

    
      	 	
              (a)

            	
              the
                Company is the surviving corporation or the successor person (if
                other
                than the Company) is a corporation organized and validly existing
                under
                the laws of any U.S. domestic jurisdiction and expressly assumes
                the
                Company’s obligations on the Securities and under this Indenture;
                and

            
	 	 	 
	 	
              (b)

            	
              immediately
                after giving effect to the transaction, no Default or Event of Default,
                shall have occurred and be
                continuing.

            


    

     

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

     

    SECTION
      5.2 Successor
      Corporation Substituted.

     

    Upon
      any
      consolidation or merger, or any sale, lease, conveyance or other disposition
      of
      all or substantially all of the assets of the Company in accordance with
Section 5.1,
      the
      successor corporation formed by such consolidation or into or with which the
      Company is merged or to which such sale, lease, conveyance or other disposition
      is made shall succeed to, and be substituted for, and may exercise every right
      and power of, the Company under this Indenture with the same effect as if such
      successor person has been named as the Company herein; provided, however, that
      the predecessor Company in the case of a sale, conveyance or other disposition
      (other than a lease) shall be released from all obligations and covenants under
      this Indenture and the Securities.

     

    ARTICLE
      VI

     

    DEFAULTS
      AND REMEDIES

     

    SECTION
      6.1 Events
      of Default.

     

    “Event
      of Default,”
      wherever used herein with respect to Securities of any Series, means any one
      of
      the following events, unless in the establishing Board Resolution, supplemental
      indenture or Officers’ Certificate, it is provided that such Series shall not
      have the benefit of said Event of Default:

     

    
      	
            	
              (a)

            	 	default
              in the payment of any interest on any Security of that Series when
              it
              becomes due and payable, and continuance of such default for a period
              of
              30 days (unless the entire amount of such payment is deposited by the
              Company with the Trustee or with a Paying Agent prior to the expiration
              of
              such period of 30 days); or
	 	 	 	 	 
	
            	
              (b)

            	 	default
              in the payment of principal of any Security of that Series at its
              Maturity; or
	 	 	 	 	 
	
            	
              (c)

            	 	default
              in the deposit of any sinking fund payment, when and as due in respect
              of
              any Security of that Series; or


    

     

     

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

     

    
      	 	 	 	 	 
	 	
              (d)

            	 	default
              in the performance or breach of any covenant or warranty of the Company
              in
              this Indenture (other than a covenant or warranty for which the
              consequences of nonperformance or breach are addressed elsewhere in
              this
              Section 6.1
              and other than a covenant or warranty that has been included in this
              Indenture solely for the benefit of Series of Securities other than
              that
              Series), which default continues uncured for a period of 60 days
              after there has been given, by registered or certified mail, to the
              Company by the Trustee or to the Company and the Trustee by the Holders
              of
              not less than a majority in principal amount of the outstanding Securities
              of that Series a written notice specifying such default or breach and
              requiring it to be remedied and stating that such notice is a “Notice of
              Default” hereunder; or


    

    
      	 	 	 	 	 
	 	
              (e)

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

            	 	commences
              a voluntary case,
	 	 	 	 	 
	 	 	
              (ii)

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

            
	 	 	 	 	 
	 	 	
              (iii)

            	 	
              consents
                to the appointment of a Custodian of it or for all or substantially
                all of
                its property,

            
	 	 	 	 	 
	 	 	
              (iv)

            	 	
              makes
                a general assignment for the benefit of its creditors,
                or

            
	 	 	 	 	 
	 	 	
              (v)

            	 	
              generally
                is unable to pay its debts as the same become due; or

            
	 	 	 	 	 
	 	
              (f)

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

            	 	
              is
                for relief against the Company in an involuntary case,

            
	 	 	 	 	 
	 	 	
              (ii)

            	 	
              appoints
                a Custodian of the Company or for all or substantially all of its
                property, or

            
	 	 	 	 	 
	 	 	
              (iii)

            	 	
              orders
                the liquidation of the Company, and the order or decree remains unstayed
                and in effect for 60 days; or

            
	 	 	 	 	 
	 	
              (g)

            	 	any
              other Event of Default provided with respect to Securities of that
              Series,
              which is specified in a Board Resolution, a supplemental indenture
              hereto
              or an Officers’ Certificate, in accordance with Section 2.2.18.


    

     

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

     

    SECTION
      6.2 Acceleration
      of Maturity; Rescission and Annulment.

     

    If
      an
      Event of Default with respect to Securities of any Series at the time
      outstanding occurs and is continuing (other than an Event of Default referred
      to
      in Section 6.1(e)
      or (f)),
      then
      in every such case the Trustee or the Holders of not less than a majority in
      principal amount of the outstanding Securities of that Series may declare the
      principal amount (or, if any Securities of that Series are Discount Securities,
      such portion of the principal amount as may be specified in the terms of such
      Securities) of and accrued and unpaid interest, if any, on all of the Securities
      of that Series to be due and payable immediately, by a notice in writing to
      the
      Company (and to the Trustee if given by Holders), and upon any such declaration
      such principal amount (or specified amount) and accrued and unpaid interest,
      if
      any, shall become immediately due and payable. If an Event of Default specified
      in Section
      6.1(e) or (f) shall
      occur, the principal amount (or specified amount) of and accrued and unpaid
      interest, if any, on all outstanding Securities shall ipso facto become and
      be
      immediately due and payable without any declaration or other act on the part
      of
      the Trustee or any Holder.

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    At
      any
      time after such a declaration of acceleration with respect to any Series has
      been made and before a judgment or decree for payment of the money due has
      been
      obtained by the Trustee as hereinafter in this Article provided, the Holders
      of
      a majority in principal amount of the outstanding Securities of that Series,
      by
      written notice to the Company and the Trustee, may rescind and annul such
      declaration and its consequences if all Events of Default with respect to
      Securities of that Series, other than the non-payment of the principal and
      interest, if any, of Securities of that Series which have become due solely
      by
      such declaration of acceleration, have been cured or waived as provided in
      Section 6.13.

     

    No
      such
      rescission shall affect any subsequent Default or impair any right consequent
      thereon.

     

    SECTION
      6.3 Collection
      Of Indebtedness And Suits For Enforcement By Trustee.

     

    The
      Company covenants that if:

     

    
      	 	
              (a)

            	
              default
                is made in the payment of any interest on any Security when such
                interest
                becomes due and payable and such default continues for a period of
                30 days, or

            
	 	 	 
	 	
              (b)

            	
              default
                is made in the payment of principal of any Security at the Maturity
                thereof, or

            
	 	 	 
	 	
              (c)

            	
              default
                is made in the deposit of any sinking fund payment when and as due
                by the
                terms of a Security,

            


    

     

    then,
      the
      Company will, upon demand of the Trustee, pay to it, for the benefit of the
      Holders of such Securities, the whole amount then due and payable on such
      Securities for principal and interest and, to the extent that payment of such
      interest shall be legally enforceable, interest on any overdue principal and
      any
      overdue interest at the rate or rates prescribed therefor in such Securities,
      and, in addition thereto, such further amount as shall be sufficient to cover
      the costs and expenses of collection, including the reasonable compensation,
      expenses, disbursements and advances of the Trustee, its agents and
      counsel.

     

    If
      the
      Company fails to pay such amounts forthwith upon such demand, the Trustee,
      in
      its own name and as trustee of an express trust, may institute a judicial
      proceeding for the collection of the sums so due and unpaid, may prosecute
      such
      proceeding to judgment or final decree and may enforce the same against the
      Company or any other obligor upon such Securities and collect the moneys
      adjudged or deemed to be payable in the manner provided by law out of the
      property of the Company or any other obligor upon such Securities, wherever
      situated.

     

    If
      an
      Event of Default with respect to any Securities of any Series occurs and is
      continuing, the Trustee may in its discretion proceed to protect and enforce
      its
      rights and the rights of the Holders of Securities of such Series by such
      appropriate judicial proceedings as the Trustee shall deem most effectual to
      protect and enforce any such rights, whether for the specific enforcement of
      any
      covenant or agreement in this Indenture or in aid of the exercise of any power
      granted herein, or to enforce any other proper remedy.

     

    SECTION
      6.4 Trustee
      May File Proofs Of Claim.

     

    In
      case
      of the pendency of any receivership, insolvency, liquidation, bankruptcy,
      reorganization, arrangement, adjustment, composition or other judicial
      proceeding relative to the Company or any other obligor upon the Securities
      or
      the property of the Company or of such other obligor or their creditors, the
      Trustee (irrespective of whether the principal of the Securities shall then
      be
      due and payable as therein expressed or by declaration or otherwise and
      irrespective of whether the Trustee shall have made any demand on the Company
      for the payment of overdue principal or interest) shall be entitled and
      empowered, by intervention in such proceeding or otherwise, (a) to file and
      prove a claim for the whole amount of principal and interest owing and unpaid
      in
      respect of the Securities and to file such other papers or documents as may
      be
      necessary or advisable in order to have the claims of the Trustee (including
      any
      claim for the reasonable compensation, expenses, disbursements and advances
      of
      the Trustee, its agents and counsel) and of the Holders allowed in such judicial
      proceeding, and (b) to collect and receive any moneys or other property
      payable or deliverable on any such claims and to distribute the same, and any
      custodian, receiver, assignee, trustee, liquidator, sequestrator or other
      similar official in any such judicial proceeding is hereby authorized by each
      Holder to make such payments to the Trustee and, in the event that the Trustee
      shall consent to the making of such payments directly to the Holders, to pay
      to
      the Trustee any amount due it for the reasonable compensation, expenses,
      disbursements and advances of the Trustee, its agents and counsel, and any other
      amounts due the Trustee under Section 7.7.

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    Nothing
      herein contained shall be deemed to authorize the Trustee to authorize or
      consent to or accept or adopt on behalf of any Holder any plan of
      reorganization, arrangement, adjustment or composition affecting the Securities
      or the rights of any Holder thereof or to authorize the Trustee to vote in
      respect of the claim of any Holder in any such proceeding.

     

    SECTION
      6.5 Trustee
      May Enforce Claims Without Possession Of Securities.

     

    All
      rights of action and claims under this Indenture or the Securities may be
      prosecuted and enforced by the Trustee without the possession of any of the
      Securities or the production thereof in any proceeding relating thereto, and
      any
      such proceeding instituted by the Trustee shall be brought in its own name
      as
      trustee of an express trust, and any recovery of judgment shall, after provision
      for the payment of the reasonable compensation, expenses, disbursements and
      advances of the Trustee, its agents and counsel, be for the ratable benefit
      of
      the Holders of the Securities in respect of which such judgment has been
      recovered.

     

    SECTION
      6.6 Application
      of Money Collected.

     

    Any
      money
      collected by the Trustee pursuant to this Article shall be applied in the
      following order, at the date or dates fixed by the Trustee and, in case of
      the
      distribution of such money on account of principal or interest, upon
      presentation of the Securities and the notation thereon of the payment if only
      partially paid and upon surrender thereof if fully paid:

     

    First:
      To
      the payment of all amounts due the Trustee under Section 7.7;
      and

     

    Second:
      To the payment of the amounts then due and unpaid for principal of and interest
      on the Securities in respect of which or for the benefit of which such money
      has
      been collected, ratably, without preference or priority of any kind, according
      to the amounts due and payable on such Securities for principal and interest,
      respectively; and

     

    Third:
      To
      the Company.

     

    SECTION
      6.7 Limitation
      On Suits.

     

    No
      Holder
      of any Security of any Series shall have any right to institute any proceeding,
      judicial or otherwise, with respect to this Indenture, or for the appointment
      of
      a receiver or trustee, or for any other remedy hereunder, unless:

     

    
      	 	
              (a)

            	
              such
                Holder has previously given written notice to the Trustee of a continuing
                Event of Default with respect to the Securities of that
                Series;

            
	 	 	 
	 	
              (b)

            	
              the
                Holders of at least a majority in principal amount of the outstanding
                Securities of that Series shall have made written request to the
                Trustee
                to institute proceedings in respect of such Event of Default in its
                own
                name as Trustee hereunder;

            
	 	 	 
	 	
              (c)

            	
              such
                Holder or Holders have offered to the Trustee reasonable indemnity
                against
                the costs, expenses and liabilities to be incurred in compliance
                with such
                request;

            
	 	 	 
	 	
              (d)

            	
              the
                Trustee for 60 days after its receipt of such notice, request and
                offer of indemnity has failed to institute any such proceeding;
                and

            
	 	 	 
	 	
              (e)

            	
              no
                direction inconsistent with such written request has been given to
                the
                Trustee during such 60-day period by the Holders of a majority in
                principal amount of the outstanding Securities of that
                Series;

            


    

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    it
      being
      understood and intended that no one or more of such Holders shall have any
      right
      in any manner whatever by virtue of, or by availing of, any provision of this
      Indenture to affect, disturb or prejudice the rights of any other of such
      Holders, or to obtain or to seek to obtain priority or preference over any
      other
      of such Holders or to enforce any right under this Indenture, except in the
      manner herein provided and for the equal and ratable benefit of all such
      Holders.

     

    SECTION
      6.8 Unconditional
      Right of Holders to Receive Principal and Interest.

     

    Notwithstanding
      any other provision in this Indenture, the Holder of any Security shall have
      the
      right, which is absolute and unconditional, to receive payment of the principal
      of and interest, if any, on such Security on the Stated Maturity or Stated
      Maturities expressed in such Security (or, in the case of redemption, on the
      redemption date) and to institute suit for the enforcement of any such payment,
      and such rights shall not be impaired without the consent of such
      Holder.

     

    SECTION
      6.9 Restoration
      of Rights and Remedies.

     

    If
      the
      Trustee or any Holder has instituted any proceeding to enforce any right or
      remedy under this Indenture and such proceeding has been discontinued or
      abandoned for any reason, or has been determined adversely to the Trustee or
      to
      such Holder, then and in every such case, subject to any determination in such
      proceeding, the Company, the Trustee and the Holders shall be restored severally
      and respectively to their former positions hereunder and thereafter all rights
      and remedies of the Trustee and the Holders shall continue as though no such
      proceeding had been instituted.

     

    SECTION
      6.10 Rights
      and Remedies Cumulative.

     

    Except
      as
      otherwise provided with respect to the replacement or payment of mutilated,
      destroyed, lost or stolen Securities in Section 2.8,
      no
      right or remedy herein conferred upon or reserved to the Trustee or to the
      Holders is intended to be exclusive of any other right or remedy, and every
      right and remedy shall, to the extent permitted by law, be cumulative and in
      addition to every other right and remedy given hereunder or now or hereafter
      existing at law or in equity or otherwise. The assertion or employment of any
      right or remedy hereunder, or otherwise, shall not, to the extent permitted
      by
      law, prevent the concurrent assertion or employment of any other appropriate
      right or remedy.

     

    SECTION
      6.11 Delay
      or Omission Not Waiver.

     

    No
      delay
      or omission of the Trustee or of any Holder of any Securities to exercise any
      right or remedy accruing upon any Event of Default shall impair any such right
      or remedy or constitute a waiver of any such Event of Default or an acquiescence
      therein. Every right and remedy given by this Article or by law to the Trustee
      or to the Holders may be exercised from time to time, and as often as may be
      deemed expedient, by the Trustee or by the Holders, as the case may
      be.

     

    SECTION
      6.12 Control
      by Holders.

     

    The
      Holders of a majority in principal amount of the outstanding Securities of
      any
      Series shall have the right to direct the time, method and place of conducting
      any proceeding for any remedy available to the Trustee, or exercising any trust
      or power conferred on the Trustee, with respect to the Securities of such
      Series, provided that:

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    
      	 	
              (a)

            	
              such
                direction shall not be in conflict with any rule of law or with this
                Indenture,

            
	 	 	 
	 	
              (b)

            	
              the
                Trustee may take any other action deemed proper by the Trustee which
                is
                not inconsistent with such direction, and

            
	 	 	 
	 	
              (c)

            	
              subject
                to the provisions of Section 6.1,
                the Trustee shall have the right to decline to follow any such direction
                if the Trustee in good faith shall, by a Responsible Officer of the
                Trustee, determine that the proceeding so directed would involve
                the
                Trustee in personal liability.

            


    

     

    SECTION
      6.13 Waiver
      Of Past Defaults.

     

    The
      Holders of not less than a majority in principal amount of the outstanding
      Securities of any Series may on behalf of the Holders of all the Securities
      of
      such Series waive any past Default hereunder with respect to such Series and
      its
      consequences, except a Default (i) in the payment of the principal of or
      interest on any Security of such Series (provided, however, that the Holders
      of
      a majority in principal amount of the outstanding Securities of any Series
      may
      rescind an acceleration and its consequences, including any related payment
      default that resulted from such acceleration) or (ii) in respect of a
      covenant or provision hereof which cannot be modified or amended without the
      consent of the Holder of each outstanding Security of such Series affected.
      Upon
      any such waiver, such Default shall cease to exist, and any Event of Default
      arising therefrom shall be deemed to have been cured, for every purpose of
      this
      Indenture; but no such waiver shall extend to any subsequent or other Default
      or
      impair any right consequent thereon.

     

    SECTION
      6.14 Undertaking
      For Costs.

     

    All
      parties to this Indenture agree, and each Holder of any Security by his
      acceptance thereof shall be deemed to have agreed, that any court may in its
      discretion require, in any suit for the enforcement of any right or remedy
      under
      this Indenture, or in any suit against the Trustee for any action taken,
      suffered or omitted by it as Trustee, the filing by any party litigant in such
      suit of an undertaking to pay the costs of such suit, and that such court may
      in
      its discretion assess reasonable costs, including reasonable attorneys’ fees,
      against any party litigant in such suit, having due regard to the merits and
      good faith of the claims or defenses made by such party litigant; but the
      provisions of this Section shall not apply to any suit instituted by the
      Company, to any suit instituted by the Trustee, to any suit instituted by any
      Holder, or group of Holders, holding in the aggregate more than 10% in principal
      amount of the outstanding Securities of any Series, or to any suit instituted
      by
      any Holder for the enforcement of the payment of the principal of or interest
      on
      any Security on or after the Stated Maturity or Stated Maturities expressed
      in
      such Security (or, in the case of redemption, on the redemption
      date).

     

    ARTICLE
      VII

     

    TRUSTEE

     

    SECTION
      7.1 Duties
      of Trustee.

     

    
      	 	
              (a)

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

            
	 	 	 	 
	 	
              (b)

            	 	
              Except
                during the continuance of an Event of Default:

            
	 	 	 	 
	 	 	
              (i)

            	
              The
                Trustee need perform only those duties that are specifically set
                forth in
                this Indenture and no others.

            
	 	 	 	 
	 	 	
              (ii)

            	
              In
                the absence of bad faith on its part, the Trustee may conclusively
                rely,
                as to the truth of the statements and the correctness of the opinions
                expressed therein, upon Officers’ Certificates or Opinions of Counsel
                furnished to the Trustee and conforming to the requirements of this
                Indenture; however, in the case of any such Officers’ Certificates or
                Opinions of Counsel which by any provisions hereof are specifically
                required to be furnished to the Trustee, the Trustee shall examine
                such
                Officers’ Certificates and Opinions of Counsel to determine whether or not
                they conform to the requirements of this
                Indenture.

            


    

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    
      	 	
              (c)

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

            	
              This
                paragraph does not limit the effect of paragraph (b) of this
                Section.

            
	 	 	 	 	 
	 	 	 	
              (ii)

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

            
	 	 	 	 	 
	 	 	 	
              (iii)

            	
              The
                Trustee shall not be liable with respect to any action taken, suffered
                or
                omitted to be taken by it with respect to Securities of any Series
                in good
                faith in accordance with the direction of the Holders of a majority
                in
                principal amount of the outstanding Securities of such Series relating
                to
                the time, method and place of conducting any proceeding for any remedy
                available to the Trustee, or exercising any trust or power conferred
                upon
                the Trustee, under this Indenture with respect to the Securities
                of such
                Series.

            
	 	 	 	 	 
	 	
              (d)

            	 	Every
              provision of this Indenture that in any way relates to the Trustee
              is
              subject to paragraph (a), (b) and (c) of this
              Section.
	 	 	 	 	 
	 	
              (e)

            	 	The
              Trustee may refuse to perform any duty or exercise any right or power
              at
              the request or direction of any Holder unless it receives indemnity
              satisfactory to it against any loss, liability or expense.
	 	 	 	 	 
	 	
              (f)

            	 	The
              Trustee shall not be liable for interest on any money received by it
              except as the Trustee may agree in writing with the Company. Money
              held in
              trust by the Trustee need not be segregated from other funds except
              to the
              extent required by law.
	 	 	 	 	 
	 	
              (g)
 	 	No
              provision of this Indenture shall require the Trustee to risk its own
              funds or otherwise incur any financial liability in the performance
              of any
              of its duties, or in the exercise of any of its rights or powers, if
              it
              shall have reasonable grounds for believing that repayment of such
              funds
              or adequate indemnity against such risk is not reasonably assured to
              it
	 	 	 	 	 
	 	
              (h)

            	 	The
              Paying Agent, the Registrar and any authenticating agent shall be entitled
              to the protections, immunities and standard of care as are set forth
              in
              paragraphs (a), (b) and (c) of this Section with respect to the
              Trustee.


    

     

    SECTION
      7.2 Rights
      of Trustee.

     

    
      	 	
              (a)

            	 	
              The
                Trustee may rely on and shall be protected in acting or refraining
                from
                acting upon any document believed by it to be genuine and to have
                been
                signed or presented by the proper person. The Trustee need not investigate
                any fact or matter stated in the document.

            
	 	 	 	 
	 	
              (b)

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

            
	 	 	 	 
	 	
              (c)

            	 	
              The
                Trustee may act through agents and shall not be responsible for the
                misconduct or negligence of any agent appointed with due care. No
                Depository shall be deemed an agent of the Trustee and the Trustee
                shall
                not be responsible for any act or omission by any
                Depository.

            


    

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    
      	 	
              (d)

            	 	
              The
                Trustee shall not be liable for any action it takes or omits to take
                in
                good faith which it believes to be authorized or within its rights
                or
                powers, provided that the Trustee’s conduct does not constitute negligence
                or bad faith.

            
	 	 	 	 
	 	
              (e)

            	 	
              The
                Trustee may consult with counsel and the advice of such counsel or
                any
                Opinion of Counsel shall be full and complete authorization and protection
                in respect of any action taken, suffered or omitted by it hereunder
                without negligence and in good faith and in reliance
                thereon.

            
	 	 	 	 
	 	
              (f)

            	 	
              The
                Trustee shall be under no obligation to exercise any of the rights
                or
                powers vested in it by this Indenture at the request or direction
                of any
                of the Holders of Securities unless such Holders shall have offered
                to the
                Trustee reasonable security or indemnity against the costs, expenses
                and
                liabilities which might be incurred by it in compliance with such
                request
                or direction.

            
	 	 	 	 
	 	
              (g)

            	 	
              The
                Trustee may consult with counsel of its selection and the advice
                of such
                counsel or any Opinion of Counsel shall be full and complete authorization
                and protection in respect of any action taken, suffered or omitted
                by it
                hereunder without negligence and in good faith and in reliance
                thereon.

            
	 	 	 	 
	 	
              (h)

            	 	
              The
                Trustee shall not be bound to make any investigation into the facts
                or
                matters stated in any resolution, certificate, statement, instrument,
                opinion, report, notice, request, direction, consent, order, bond,
                debenture, note, other evidence of indebtedness or other paper or
                document, but the Trustee, in its discretion, may make such further
                inquiry or investigation into such facts or matters as it may see
                fit.

            
	 	 	 	 
	 	
              (i)

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

            


    

     

    SECTION
      7.3 Individual
      Rights of Trustee.

     

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

     

    SECTION
      7.4 Trustee’s
      Disclaimer.

     

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

     

    SECTION
      7.5 Notice
      Of Defaults.

     

    If
      a
      Default or Event of Default occurs and is continuing with respect to the
      Securities of any Series and if it is known to a Responsible Officer of the
      Trustee, the Trustee shall mail to each Securityholder of the Securities of
      that
      Series and, if any Bearer Securities are outstanding, publish on one occasion
      in
      an Authorized Newspaper, notice of a Default or Event of Default within
      90 days after it occurs or, if later, after a Responsible Officer of the
      Trustee has knowledge of such Default or Event of Default. Except in the case
      of
      a Default or Event of Default in payment of principal of or interest on any
      Security of any Series, the Trustee may withhold the notice if and so long
      as
      its corporate trust committee or a committee of its Responsible Officers in
      good
      faith determines that withholding the notice is in the interests of
      Securityholders of that Series.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    SECTION
      7.6 Reports
      by Trustee to Holders.

     

    Within
      60 days after May 15 in each year, the Trustee shall transmit by mail
      to all Securityholders, as their names and addresses appear on the register
      kept
      by the Registrar and, if any Bearer Securities are outstanding, publish in
      an
      Authorized Newspaper, a brief report dated as of such May 15, in accordance
      with, and to the extent required under, TIA Section 313.

     

    A
      copy of
      each report at the time of its mailing to Securityholders of any Series shall
      be
      filed with the SEC and each stock exchange on which the Securities of that
      Series are listed. The Company shall promptly notify the Trustee when Securities
      of any Series are listed on any stock exchange.

     

    SECTION
      7.7 Compensation
      and Indemnity.

     

    The
      Company shall pay to the Trustee from time to time compensation for its services
      as the Company and the Trustee shall from time to time agree upon in writing.
      The Trustee’s compensation shall not be limited by any law on compensation of a
      trustee of an express trust. The Company shall reimburse the Trustee upon
      request for all reasonable out-of-pocket expenses incurred by it. Such expenses
      shall include the reasonable compensation and expenses of the Trustee’s agents
      and counsel.

     

    The
      Company shall indemnify each of the Trustee and any predecessor Trustee
      (including the cost of defending itself) against any loss, liability or expense,
      including taxes (other than taxes based upon, measured by or determined by
      the
      income of the Trustee) incurred by it except as set forth in the next paragraph
      in the performance of its duties under this Indenture as Trustee or Agent.
      The
      Trustee shall notify the Company promptly of any claim for which it may seek
      indemnity. The Company shall defend the claim and the Trustee shall cooperate
      in
      the defense. The Trustee may have one separate counsel and the Company shall
      pay
      the reasonable fees and expenses of such counsel. The Company need not pay
      for
      any settlement made without its consent, which consent shall not be unreasonably
      withheld. This indemnification shall apply to officers, directors, employees,
      shareholders and agents of the Trustee.

     

    The
      Company need not reimburse any expense or indemnify against any loss or
      liability incurred by the Trustee or by any officer, director, employee,
      shareholder or agent of the Trustee through negligence or bad
      faith.

     

    To
      secure
      the Company’s payment obligations in this Section, the Trustee shall have a lien
      prior to the Securities of any Series on all money or property held or collected
      by the Trustee, except that held in trust to pay principal of and interest
      on
      particular Securities of that Series.

     

    When
      the
      Trustee incurs expenses or renders services after an Event of Default specified
      in Section 6.1(e)
      or (f) occurs,
      the expenses and the compensation for the services are intended to constitute
      expenses of administration under any Bankruptcy Law.

     

    The
      provisions of this Section shall survive the termination of this
      Indenture.

     

    SECTION
      7.8 Replacement
      of Trustee.

     

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

     

    The
      Trustee may resign with respect to the Securities of one or more Series by
      so
      notifying the Company at least 30 days prior to the date of the proposed
      resignation. The Holders of a majority in principal amount of the Securities
      of
      any Series may remove the Trustee with respect to that Series by so notifying
      the Trustee and the Company. The Company may remove the Trustee with respect
      to
      Securities of one or more Series if:

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    
      	 	
              (a)

            	 	
              the
                Trustee fails to comply with Section 7.10;

            
	 	 	 	 
	 	
              (b)

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

            
	 	 	 	 
	 	
              (c)

            	 	
              a
                Custodian or public officer takes charge of the Trustee or its property;
                or

            
	 	 	 	 
	 	
              (d)

            	 	
              the
                Trustee becomes incapable of
                acting.

            


    

     

    If
      the
      Trustee resigns or is removed or if a vacancy exists in the office of Trustee
      for any reason, the Company shall promptly appoint a successor Trustee. Within
      one year after the successor Trustee takes office, the Holders of a majority
      in
      principal amount of the then outstanding Securities may appoint a successor
      Trustee to replace the successor Trustee appointed by the Company.

     

    If
      a
      successor Trustee with respect to the Securities of any one or more Series
      does
      not take office within 60 days after the retiring Trustee resigns or is
      removed, the retiring Trustee, the Company or the Holders of at least a majority
      in principal amount of the Securities of the applicable Series may petition
      any
      court of competent jurisdiction for the appointment of a successor
      Trustee.

     

    A
      successor Trustee shall deliver a written acceptance of its appointment to
      the
      retiring Trustee and to the Company. Immediately after that, the retiring
      Trustee shall transfer all property held by it as Trustee to the successor
      Trustee subject to the lien provided for in Section 7.7,
      the
      resignation or removal of the retiring Trustee shall become effective, and
      the
      successor Trustee shall have all the rights, powers and duties of the Trustee
      with respect to each Series of Securities for which it is acting as Trustee
      under this Indenture. A successor Trustee shall mail a notice of its succession
      to each Securityholder of each such Series and, if any Bearer Securities are
      outstanding, publish such notice on one occasion in an Authorized Newspaper.
      Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
      the
      Company’s obligations under Section 7.7
      hereof
      shall continue for the benefit of the retiring Trustee with respect to expenses
      and liabilities incurred by it prior to such replacement.

     

    SECTION
      7.9 Successor
      Trustee by Merger, Etc.

     

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

     

    SECTION
      7.10 Eligibility;
      Disqualification.

     

    This
      Indenture shall always have a Trustee who satisfies the requirements of TIA
      Section 310(a)(1), (2) and (5). The Trustee shall always have a
      combined capital and surplus of at least $25,000,000 as set forth in its most
      recent published annual report of condition. The Trustee shall comply with
      TIA
      Section 310(b).

     

    SECTION
      7.11 Referential
      Collection of Claims Against Company.

     

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

     

    ARTICLE
      VIII

     

    SATISFACTION
      AND DISCHARGE; DEFEASANCE

     

    SECTION
      8.1 Satisfaction
      and Discharge of Indenture.

     

    This
      Indenture shall upon Company Order cease to be of further effect (except as
      hereinafter provided in this Section 8.1),
      and
      the Trustee, at the expense of the Company, shall execute proper instruments
      acknowledging satisfaction and discharge of this Indenture, when 

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    
      	 	
              (a)

            	 	either:
	 	 	 	 	 
	 	 	 	
              (i)

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

            
	 	 	 	 	 
	 	 	 	
              (ii)

            	
              all
                such Securities not theretofore delivered to the Trustee for cancellation
                (1) have become due and payable, or (2) will become due and payable
                at their Stated Maturity within one year, or (3) are to be called for
                redemption within one year under arrangements satisfactory to the
                Trustee
                for the giving of notice of redemption by the Trustee in the name,
                and at
                the expense, of the Company; and the Company has irrevocably deposited
                or
                caused to be deposited with the Trustee as trust funds in trust an
                amount
                sufficient for the purpose of paying and discharging the entire
                indebtedness on such Securities not theretofore delivered to the
                Trustee
                for cancellation, for principal and interest to the date of such
                deposit
                (in the case of Securities which have become due and payable on or
                prior
                to the date of such deposit) or to the Stated Maturity or redemption
                date,
                as the case may be;

            
	 	 	 	 	 
	 	
              (b)

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

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


    

     

    Notwithstanding
      the satisfaction and discharge of this Indenture, the obligations of the Company
      to the Trustee under Section 7.7,
      and, if
      money shall have been deposited with the Trustee pursuant to clause (a) of
      this Section, the provisions of Sections 2.4,
      2.7, 2.8, 8.1, 8.2 and 8.5
      shall
      survive.

     

    SECTION
      8.2 Application
      of Trust Funds; Indemnification.

     

    
      	 	
              (a)

            	
              Subject
                to the provisions of Section 8.5,
                all money deposited with the Trustee pursuant to Section 8.1,
                all money and U.S. Government Obligations or Foreign Government
                Obligations deposited with the Trustee pursuant to Section 8.3
                or 8.4
                and all money received by the Trustee in respect of U.S. Government
                Obligations or Foreign Government Obligations deposited with the
                Trustee
                pursuant to Section 8.3
                or 8.4,
                shall be held in trust and applied by it, in accordance with the
                provisions of the Securities and this Indenture, to the payment,
                either
                directly or through any Paying Agent (other than the Company acting
                as its
                own Paying Agent) as the Trustee may determine, to the persons entitled
                thereto, of the principal and interest for whose payment such money
                has
                been deposited with or received by the Trustee or to make mandatory
                sinking fund payments or analogous payments as contemplated by
                Sections 8.3
                or 8.4.

            
	 	 	 
	 	
              (b)

            	
              The
                Company shall pay and shall indemnify the Trustee against any tax,
                fee or
                other charge imposed on or assessed against U.S. Government Obligations
                or
                Foreign Government Obligations deposited pursuant to Sections 8.3
                or 8.4
                or
                the interest and principal received in respect of such obligations
                other
                than any payable by or on behalf of Holders.

            
	 	 	 
	 	
              (c)

            	
              The
                Trustee shall deliver or pay to the Company from time to time upon
                Company
                Request any U.S. Government Obligations or Foreign Government Obligations
                or money held by it as provided in Sections
                8.3 or 8.4
                which, in the opinion of a nationally recognized firm of independent
                certified public accountants expressed in a written certification
                thereof
                delivered to the Trustee, are then in excess of the amount thereof
                which
                then would have been required to be deposited for the purpose for
                which
                such U.S. Government Obligations or Foreign Government Obligations
                or
                money were deposited or received. This provision shall not authorize
                the
                sale by the Trustee of any U.S. Government Obligations or Foreign
                Government Obligations held under this
                Indenture.

            


    

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

    SECTION
      8.3 Legal
      Defeasance of Securities of any Series.

     

    Unless
      this Section 8.3
      is
      otherwise specified, pursuant to Section
      2.2.20,
      to be
      inapplicable to Securities of any Series, the Company shall be deemed to have
      paid and discharged the entire indebtedness on all the outstanding Securities
      of
      any Series on the 91st day after the date of the deposit referred to in
      subparagraph (d) hereof, and the provisions of this Indenture, as it
      relates to such outstanding Securities of such Series, shall no longer be in
      effect (and the Trustee, at the expense of the Company, shall, at Company
      Request, execute proper instruments acknowledging the same), except as
      to:

     

    
      	 	
              (a)

            	
              the
                rights of Holders of Securities of such Series to receive, from the
                trust
                funds described in subparagraph (d) hereof, (i) payment of the
                principal of and each installment of principal of and interest on
                the
                outstanding Securities of such Series on the Stated Maturity of such
                principal or installment of principal or interest and (ii) the
                benefit of any mandatory sinking fund payments applicable to the
                Securities of such Series on the day on which such payments are due
                and
                payable in accordance with the terms of this Indenture and the Securities
                of such Series;

            
	 	 	 
	 	
              (b)

            	
              the
                provisions of Sections 2.4,
                2.7, 2.8, 8.2, 8.3, and 8.5;
                and

            
	 	 	 
	 	
              (c)

            	
              the
                rights, powers, trust and immunities of the Trustee hereunder; provided
                that, the following conditions shall have been
                satisfied:

            
	 	 	 
	 	
              (d)

            	
              the
                Company shall have deposited or caused to be irrevocably deposited
                (except
                as provided in Section 8.2(c))
                with the Trustee as trust funds in trust for the purpose of making
                the
                following payments, specifically pledged as security for and dedicated
                solely to the benefit of the Holders of such Securities, cash in
                Dollars
                and/or U.S. Government Obligations, which through the payment of
                interest
                and principal in respect thereof in accordance with their terms,
                will
                provide (and without reinvestment and assuming no tax liability will
                be
                imposed on such Trustee), not later than one day before the due date
                of
                any payment of money, an amount in cash, sufficient, in the opinion
                of a
                nationally recognized firm of independent public accountants expressed
                in
                a written certification thereof delivered to the Trustee, to pay
                and
                discharge each installment of principal of and interest, if any,
                on and
                any mandatory sinking fund payments in respect of all the Securities
                of
                such Series on the dates such installments of interest or principal
                and
                such sinking fund payments are due;

            
	 	 	 
	 	
              (e)

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

            
	 	 	 
	 	
              (f)

            	
              no
                Default or Event of Default with respect to the Securities of such
                Series
                shall have occurred and be continuing on the date of such deposit
                or
                during the period ending on the 91st day after such
                date;

            
	 	 	 
	 	
              (g)

            	
              the
                Company shall have delivered to the Trustee an Officers’ Certificate and
                an Opinion of Counsel to the effect that (i) the Company has received
                from, or there has been published by, the Internal Revenue Service
                a
                ruling, or (ii) since the date of execution of this Indenture, there
                has been a change in the applicable Federal income tax law, in either
                case
                to the effect that, and based thereon such Opinion of Counsel shall
                confirm that, the Holders of the Securities of such Series will not
                recognize income, gain or loss for Federal income tax purposes as
                a result
                of such deposit, defeasance and discharge and will be subject to
                Federal
                income tax on the same amounts and in the same manner and at the
                same
                times as would have been the case if such deposit, defeasance and
                discharge had not occurred;

            
	 	 	 
	 	
              (h)

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

            
	 	 	 
	 	
              (i)

            	
              the
                Company shall have delivered to the Trustee an Officers’ Certificate and
                an Opinion of Counsel, each stating that all conditions precedent
                provided
                for relating to the defeasance contemplated by this Section have
                been
                complied with.

            


    

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    SECTION
      8.4 Covenant
      Defeasance.

     

    Unless
      this Section 8.4
      is
      otherwise specified pursuant to Section 2.2.20
      to be
      inapplicable to Securities of any Series, on and after the 91st day after the
      date of the deposit referred to in subparagraph (a) hereof, the Company may
      omit to comply with respect to the Securities of any Series with any term,
      provision or condition set forth under Sections 4.2,
      4.3, 4.4, 4.6, and 5.1
      as well
      as any additional covenants specified in a supplemental indenture for such
      Series of Securities or a Board Resolution or an Officers’ Certificate delivered
      pursuant to Section 2.2.20
      (and the
      failure to comply with any such covenants shall not constitute a Default or
      Event of Default with respect to such Series under Section 6.1) and the
      occurrence of any event specified in a supplemental indenture for such Series
      of
      Securities or a Board Resolution or an Officers’ Certificate delivered pursuant
      to Section 2.2.18
      and
      designated as an Event of Default shall not constitute a Default or Event of
      Default hereunder, with respect to the Securities of such Series, provided
      that
      the following conditions shall have been satisfied:

     

    
      	 	
              (a)

            	
              With
                reference to this Section 8.4,
                the Company has deposited or caused to be irrevocably deposited (except
                as
                provided in Section
                8.2(c))
                with the Trustee as trust funds in trust for the purpose of making
                the
                following payments specifically pledged as security for, and dedicated
                solely to, the benefit of the Holders of such Securities, cash in
                Dollars
                and/or U.S. Government Obligations, which through the payment of
                interest
                and principal in respect thereof in accordance with their terms,
                will
                provide (and without reinvestment and assuming no tax liability will
                be
                imposed on such Trustee), not later than one day before the due date
                of
                any payment of money, an amount in cash, sufficient, in the opinion
                of a
                nationally recognized firm of independent certified public accountants
                expressed in a written certification thereof delivered to the Trustee,
                to
                pay and discharge each installment of principal of and interest,
                if any,
                on and any mandatory sinking fund payments in respect of the Securities
                of
                such Series on the dates such installments of interest or principal
                and
                such sinking fund payments are due;

            
	 	 	 
	 	
              (b)

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

            
	 	 	 
	 	
              (c)

            	
              No
                Default or Event of Default with respect to the Securities of such
                Series
                shall have occurred and be continuing on the date of such deposit
                or
                during the period ending on the 91st day after such
                date;

            
	 	 	 
	 	
              (d)

            	
              The
                Company shall have delivered to the Trustee an Opinion of Counsel
                to the
                effect that Holders of the Securities of such Series will not recognize
                income, gain or loss for federal income tax purposes as a result
                of such
                deposit and covenant defeasance and will be subject to federal income
                tax
                on the same amounts, in the same manner and at the same times as
                would
                have been the case if such deposit and covenant defeasance had not
                occurred; and

            
	 	 	 
	 	
              (e)

            	
              The
                Company shall have delivered to the Trustee an Officers’ Certificate and
                an Opinion of Counsel, each stating that all conditions precedent
                herein
                provided for relating to the covenant defeasance contemplated by
                this
                Section have been complied with.

            


    

     

    SECTION
      8.5 Repayment
      to Company.

     

    The
      Trustee and the Paying Agent shall pay to the Company upon request any money
      held by them for the payment of principal and interest that remains unclaimed
      for two years. After that, Securityholders entitled to the money must look
      to
      the Company for payment as general creditors unless an applicable abandoned
      property law designates another person.

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      IX

     

    AMENDMENTS
      AND WAIVERS

     

    SECTION
      9.1 Without
      Consent of Holders.

     

    The
      Company and the Trustee may amend or supplement this Indenture or the Securities
      of one or more Series without the consent of any Securityholder:

     

    
      	 	
              (a)

            	
              to
                cure any ambiguity, defect or inconsistency;

            
	 	 	 
	 	
              (b)

            	
              to
                comply with Article V;

            
	 	 	 
	 	
              (c)

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

            
	 	 	 
	 	
              (d)

            	
              to
                make any change that does not adversely affect the rights of any
                Securityholder;

            
	 	 	 
	 	
              (e)

            	
              to
                provide for the issuance of and establish the form and terms and
                conditions of Securities of any Series as permitted by this
                Indenture;

            
	 	 	 
	 	
              (f)

            	
              to
                evidence and provide for the acceptance of appointment hereunder
                by a
                successor Trustee with respect to the Securities of one or more Series
                and
                to add to or change any of the provisions of this Indenture
                as

              shall
                be necessary to provide for or facilitate the administration of the
                trusts
                hereunder by more than one Trustee; or

            
	 	 	 
	 	
              (g)

            	
              to
                comply with requirements of the SEC in order to effect or maintain
                the
                qualification of this Indenture under the
                TIA.

            


    

     

    SECTION
      9.2 With
      Consent of Holders.

     

    The
      Company and the Trustee may enter into a supplemental indenture with the written
      consent of the Holders of at least a majority in principal amount of the
      outstanding Securities of each Series affected by such supplemental indenture
      (including consents obtained in connection with a tender offer or exchange
      offer
      for the Securities of such Series), for the purpose of adding any provisions
      to
      or changing in any manner or eliminating any of the provisions of this Indenture
      or of any supplemental indenture or of modifying in any manner the rights of
      the
      Securityholders of each such Series. Except as provided in Section 6.13,
      the
      Holders of at least a majority in principal amount of the outstanding Securities
      of any Series by notice to the Trustee (including consents obtained in
      connection with a tender offer or exchange offer for the Securities of such
      Series) may waive compliance by the Company with any provision of this Indenture
      or the Securities with respect to such Series.

     

    It
      shall
      not be necessary for the consent of the Holders of Securities under this
Section 9.2
      to
      approve the particular form of any proposed supplemental indenture or waiver,
      but it shall be sufficient if such consent approves the substance thereof.
      After
      a supplemental indenture or waiver under this section becomes effective, the
      Company shall mail to the Holders of Securities affected thereby and, if any
      Bearer Securities affected thereby are outstanding, publish on one occasion
      in
      an Authorized Newspaper, a notice briefly describing the supplemental indenture
      or waiver. Any failure by the Company to mail or publish such notice, or any
      defect therein, shall not, however, in any way impair or affect the validity
      of
      any such supplemental indenture or waiver.

     

    SECTION
      9.3 Limitations.

     

    Without
      the consent of each Securityholder affected, an amendment or waiver may not:
      

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

       

    

    
      	 	
              (a)

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

            
	 	 	 
	 	
              (b)

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

            
	 	 	 
	 	
              (c)

            	
              reduce
                the principal or change the Stated Maturity of any Security or reduce
                the
                amount of, or postpone the date fixed for, the payment of any sinking
                fund
                or analogous obligation;

            
	 	 	 
	 	
              (d)

            	
              reduce
                the principal amount of Discount Securities payable upon acceleration
                of
                the maturity thereof;

            
	 	 	 
	 	
              (e)

            	
              waive
                a Default or Event of Default in the payment of the principal of
                or
                interest, if any, on any Security (except a rescission of acceleration
                of
                the Securities of any Series by the Holders of at least a majority
                in
                principal amount of the outstanding Securities of such Series and
                a waiver
                of the payment default that resulted from such
                acceleration); 

            
	 	 	 
	 	
              (f)

            	
              make
                the principal of or interest, if any, on any Security payable in
                any
                currency other than that stated in the Security;

            
	 	 	 
	 	
              (g)

            	
              adversely
                affect the right to convert any Security;

            
	 	 	 
	 	
              (h)

            	
              make
                any change in Sections 6.8,
                6.13, or 9.3
                (this sentence); or

            
	 	 	 
	 	
              (i)

            	
              waive
                a redemption payment with respect to any
                Security.

            


    

     

    SECTION
      9.4 Compliance
      With Trust Indenture Act.

     

    Every
      amendment to this Indenture or the Securities of one or more Series shall be
      set
      forth in a supplemental indenture hereto that complies with the TIA as then
      in
      effect.

     

    SECTION
      9.5 Revocation
      and Effect of Consents.

     

    Until
      an
      amendment is set forth in a supplemental indenture or a waiver becomes
      effective, a consent to it by a Holder of a Security is a continuing consent
      by
      the Holder and every subsequent Holder of a Security or portion of a Security
      that evidences the same debt as the consenting Holder’s Security, even if
      notation of the consent is not made on any Security. However, any such Holder
      or
      subsequent Holder may revoke the consent as to his Security or portion of a
      Security if the Trustee receives the notice of revocation before the date of
      the
      supplemental indenture or the date the waiver becomes effective.

     

    Any
      amendment or waiver once effective shall bind every Securityholder of each
      Series affected by such amendment or waiver unless it is of the type described
      in any of clauses (a) through (h) of Section 9.3.
      In that
      case, the amendment or waiver shall bind each Holder of a Security who has
      consented to it and every subsequent Holder of a Security or portion of a
      Security that evidences the same debt as the consenting Holder’s
      Security.

     

    SECTION
      9.6 Notation
      on or Exchange of Securities.

     

    The
      Trustee may place an appropriate notation about an amendment or waiver on any
      Security of any Series thereafter authenticated. The Company in exchange for
      Securities of that Series may issue and the Trustee shall authenticate upon
      request new Securities of that Series that reflect the amendment or
      waiver.

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    SECTION
      9.7 Trustee
      Protected.

     

    In
      executing, or accepting the additional trusts created by, any supplemental
      indenture permitted by this Article or the modifications thereby of the trusts
      created by this Indenture, the Trustee shall be entitled to receive, and
      (subject to Section 7.1)
      shall
      be fully protected in relying upon, an Opinion of Counsel stating that the
      execution of such supplemental indenture is authorized or permitted by this
      Indenture. The Trustee shall sign all supplemental indentures, except that
      the
      Trustee need not sign any supplemental indenture that adversely affects its
      rights.

     

    ARTICLE
      X

     

    MISCELLANEOUS

     

    SECTION
      10.1 Trust
      Indenture Act Controls.

     

    If
      any
      provision of this Indenture limits, qualifies, or conflicts with another
      provision which is required or deemed to be included in this Indenture by the
      TIA, such required or deemed provision shall control.

     

    SECTION
      10.2 Notices.

     

    Any
      notice or communication by the Company or the Trustee to the other, or by a
      Holder to the Company or the Trustee, is duly given if in writing and delivered
      in person or mailed by first-class mail:

     

    if
      to the
      Company:

     

    James
      River Coal Company

    901
      E.
      Byrd Street, Suite 1600

    Richmond,
      Virginia 23219

    Attention:
      Peter T. Socha

    Telephone:
      (804) 780-3000

    Facsimile:
      (804) _______________

    


    if
      to the
      Trustee:

     

    
      
        

      

      

      

      

    

    Attention:

    Telephone:
      (_____) _______________

    Facsimile:
      (_____) _______________

    


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

     

    Any
      notice or communication to a Securityholder shall be mailed by first-class
      mail
      to his address shown on the register kept by the Registrar and, if any Bearer
      Securities are outstanding, published in an Authorized Newspaper. Failure to
      mail a notice or communication to a Securityholder of any Series or any defect
      in it shall not affect its sufficiency with respect to other Securityholders
      of
      that or any other Series.

     

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

     

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

     

    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    

     

    SECTION
      10.3 Communication
      by Holders with Other Holders.

     

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

     

    SECTION
      10.4 Certificate
      and Opinion as to Conditions Precedent.

     

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

     

    
      	 	
              (a)

            	
              an
                Officers’ Certificate stating that, in the opinion of the signers, all
                conditions precedent, if any, provided for in this Indenture relating
                to
                the proposed action have been complied with; and

            
	 	 	 
	 	
              (b)

            	
              an
                Opinion of Counsel stating that, in the opinion of such counsel,
                all such
                conditions precedent have been complied
                with.

            


    

     

    SECTION
      10.5 Statements
      Required in Certificate or Opinion.

     

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

     

    
      	 	
              (a)

            	
              a
                statement that the person making such certificate or opinion has
                read such
                covenant or condition;

            
	 	 	 
	 	
              (b)

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

            
	 	 	 
	 	
              (c)

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

            
	 	 	 
	 	
              (d)

            	
              a
                statement as to whether or not, in the opinion of such person, such
                condition or covenant has been complied
                with.

            


    

     

    SECTION
      10.6 Rules
      by Trustee and Agents.

     

    The
      Trustee may make reasonable rules for action by or a meeting of Securityholders
      of one or more Series. Any Agent may make reasonable rules and set reasonable
      requirements for its functions.

     

    SECTION
      10.7 Legal
      Holidays.

     

    Unless
      otherwise provided by Board Resolution, Officers’ Certificate or supplemental
      indenture hereto for a particular Series, a “Legal
      Holiday”
is
      any
      day that is not a Business Day. If a payment date is a Legal Holiday at a place
      of payment, payment may be made at that place on the next succeeding day that
      is
      not a Legal Holiday, and no interest shall accrue for the intervening
      period.

     

    SECTION
      10.8 No
      Recourse Against Others.

     

    A
      director, officer, employee or stockholder, as such, of the Company shall not
      have any liability for any obligations of the Company under the Securities
      or
      the Indenture or for any claim based on, in respect of or by reason of such
      obligations or their creation. Each Securityholder by accepting a Security
      waives and releases all such liability. The waiver and release are part of
      the
      consideration for the issue of the Securities.

     

    
      
        
        

      

      
        31

        
          

        

      

      
        
        

      

    

     

    SECTION
      10.9 Counterparts.

     

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

     

    SECTION
      10.10 Governing
      Laws.

     

    THIS
      INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
      NEW
      YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT
      REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.

     

    SECTION
      10.11 No
      Adverse Interpretation of Other Agreements.

     

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

     

    SECTION
      10.12 Successors.

     

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

     

    SECTION
      10.13 Severability.

     

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

     

    SECTION
      10.14 Table
      of Contents, Headings, Etc.

     

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

     

    ARTICLE
      XI

     

    SINKING
      FUNDS

     

    SECTION
      11.1 Applicability
      of Article.

     

    The
      provisions of this Article shall be applicable to any sinking fund for the
      retirement of the Securities of a Series, except as otherwise permitted or
      required by any form of Security of such Series issued pursuant to this
      Indenture.

     

    The
      minimum amount of any sinking fund payment provided for by the terms of the
      Securities of any Series is herein referred to as a “mandatory
      sinking fund payment”
and
      any
      other amount provided for by the terms of Securities of such Series is herein
      referred to as an “optional
      sinking fund payment.”
If
      provided for by the terms of Securities of any Series, the cash amount of any
      sinking fund payment may be subject to reduction as provided in Section 11.2.
      Each
      sinking fund payment shall be applied to the redemption of Securities of any
      Series as provided for by the terms of the Securities of such
      Series.

     

    
      SECTION
        11.2 Satisfaction
        Of Sinking Fund Payments With Securities.

       

      The
        Company may, in satisfaction of all or any part of any sinking fund payment
        with
        respect to the Securities of any Series to be made pursuant to the terms
        of such
        Securities (1) deliver outstanding Securities of such Series to which such
        sinking fund payment is applicable (other than any of such Securities previously
        called for mandatory sinking fund redemption) and (2) apply as credit Securities
        of such Series to which such sinking fund 

    

     

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     

    payment
      is applicable and which have been repurchased by the Company or redeemed either
      at the election of the Company pursuant to the terms of such Series of
      Securities (except pursuant to any mandatory sinking fund) or through the
      application of permitted optional sinking fund payments or other optional
      redemptions pursuant to the terms of such Securities, provided that such
      Securities have not been previously so credited. Such Securities shall be
      received by the Trustee, together with an Officers’ Certificate with respect
      thereto, not later than 15 days prior to the date on which the Trustee begins
      the process of selecting Securities for redemption, and shall be credited for
      such purpose by the Trustee at the price specified in such Securities for
      redemption through operation of the sinking fund and the amount of such sinking
      fund payment shall be reduced accordingly. If as a result of the delivery or
      credit of Securities in lieu of cash payments pursuant to this Section 11.2,
      the
      principal amount of Securities of such Series to be redeemed in order to exhaust
      the aforesaid cash payment shall be less than $100,000, the Trustee need not
      call Securities of such Series for redemption, except upon receipt of a Company
      Order that such action be taken, and such cash payment shall be held by the
      Trustee or a Paying Agent and applied to the next succeeding sinking fund
      payment, provided, however, that the Trustee or such Paying Agent shall from
      time to time upon receipt of a Company Order pay over and deliver to the Company
      any cash payment so being held by the Trustee or such Paying Agent upon delivery
      by the Company to the Trustee of Securities of that Series purchased by the
      Company having an unpaid principal amount equal to the cash payment required
      to
      be released to the Company.

     

    SECTION
      11.3 Redemption
      Of Securities For Sinking Fund.

     

    Not
      less
      than 45 days (unless otherwise indicated in the Board Resolution,
      supplemental indenture or Officers’ Certificate in respect of a particular
      Series of Securities) prior to each sinking fund payment date for any Series
      of
      Securities, the Company will deliver to the Trustee an Officers’ Certificate
      specifying the amount of the next ensuing mandatory sinking fund payment for
      that Series pursuant to the terms of that Series, the portion thereof, if any,
      which is to be satisfied by payment of cash and the portion thereof, if any,
      which is to be satisfied by delivering and crediting of Securities of that
      Series pursuant to Section 11.2,
      and the
      optional amount, if any, to be added in cash to the next ensuing mandatory
      sinking fund payment, and the Company shall thereupon be obligated to pay the
      amount therein specified. Not less than 30 days (unless otherwise indicated
      in the Board Resolution, Officers’ Certificate or supplemental indenture in
      respect of a particular Series of Securities) before each such sinking fund
      payment date the Trustee shall select the Securities to be redeemed upon such
      sinking fund payment date in the manner specified in Section 3.2
      and
      cause notice of the redemption thereof to be given in the name of and at the
      expense of the Company in the manner provided in Section 3.3.
      Such
      notice having been duly given, the redemption of such Securities shall be made
      upon the terms and in the manner stated in Sections
      3.4, 3.5 and 3.6.

     

    ARTICLE
      XII

     

    SUBORDINATION
      OF SECURITIES

     

    SECTION
      12.1 Agreement
      of Subordination.

     

    The
      Company covenants and agrees, and each Holder of Securities issued hereunder
      by
      his acceptance thereof likewise covenants and agrees, that all Securities shall
      be issued subject to the provisions of this Article XII;
      and
      each Person holding any Security, whether upon original issue or upon transfer,
      assignment or exchange thereof, accepts and agrees to be bound by such
      provisions.

     

    The
      payment of the principal of and interest on all Securities (including, but
      not
      limited to, the redemption price with respect to the Securities called for
      redemption in accordance with Article III
      as
      provided in the Indenture) issued hereunder shall, to the extent and in the
      manner hereinafter set forth, be subordinated and subject in right of payment
      to
      the prior payment in full of all Senior Indebtedness, whether outstanding at
      the
      date of this Indenture or thereafter incurred.

     

    No
      provision of this Article XII
      shall
      prevent the occurrence of any default or Event of Default
      hereunder.

     

    
      
        
        

      

      
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    SECTION
      12.2 Payments
      to Holders.

     

    No
      payment shall be made with respect to the principal of or interest on the
      Securities (including, but not limited to, the redemption price with respect
      to
      the Securities to be called for redemption in accordance with Article III
      as
      provided in the Indenture), except payments and distributions made by the
      Trustee as permitted by the first or second paragraph of Section 12.5,
      if:

     

    
      	 	 	
              (i)

            	
              a
                default in the payment of principal, premium, interest, rent or other
                obligations due on any Senior Indebtedness occurs and is continuing
                (or,
                in the case of Senior Indebtedness for which there is a period of
                grace,
                in the event of such a default that continues beyond the period of
                grace,
                if any, specified in the instrument or lease evidencing such Senior
                Indebtedness), unless and until such default shall have been cured
                or
                waived or shall have ceased to exist; or

            
	 	 	 	 
	 	 	
              (ii)

            	
              a
                default, other than a payment default, on a Designated Senior Indebtedness
                occurs and is continuing that then permits holders of such Designated
                Senior Indebtedness to accelerate its maturity and the Trustee receives
                a
                notice of the default (a “Payment
                Blockage Notice”)
                from a Representative or the
                Company.

            


    

     

    If
      the
      Trustee receives any Payment Blockage Notice pursuant to clause (ii) above,
      no subsequent Payment Blockage Notice shall be effective for purposes of this
      Section unless and until (A) at least 365 days shall have elapsed
      since the initial effectiveness of the immediately prior Payment Blockage
      Notice, and (B) all scheduled payments of principal and interest on the
      Securities that have come due have been paid in full in cash. No nonpayment
      default that existed or was continuing on the date of delivery of any Payment
      Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
      Payment Blockage Notice.

     

    The
      Company may and shall resume payments on and distributions in respect of the
      Securities upon the earlier of:

     

    
      	 	 	
              (1)

            	
              the
                date upon which the default is cured or waived or ceases to exist,
                or

            
	 	 	
              (2)

            	
              in
                the case of a default referred to in clause (ii) above, 179 days
                pass after notice is received if the maturity of such Designated
                Senior
                Indebtedness has not been accelerated, unless this Article XII
                otherwise prohibits the payment or distribution at the time of such
                payment or distribution.

            


    

     

    Upon
      any
      payment by the Company, or distribution of assets of the Company of any kind
      or
      character, whether in cash, property or securities, to creditors upon any
      dissolution or winding-up or liquidation or reorganization of the Company,
      whether voluntary or involuntary or in bankruptcy, insolvency, receivership
      or
      other proceedings, all amounts due or to become due upon all Senior Indebtedness
      shall first be paid in full in cash or other payment satisfactory to the holders
      of such Senior Indebtedness, or payment thereof in accordance with its terms
      provided for in cash or other payment satisfactory to the holders of such Senior
      Indebtedness, before any payment is made on account of the principal of or
      interest on the Securities (except payments made pursuant to Article VI
      from
      monies deposited with the Trustee pursuant thereto prior to commencement of
      proceedings for such dissolution, winding-up, liquidation or reorganization);
      and upon any such dissolution or winding-up or liquidation or reorganization
      of
      the Company or bankruptcy, insolvency, receivership or other proceeding, any
      payment by the Company, or distribution of assets of the Company of any kind
      or
      character, whether in cash, property or securities, to which the Holders of
      the
      Securities or the Trustee would be entitled, except for the provision of this
      Article XII,
      shall
      (except as aforesaid) be paid by the Company or by any receiver, trustee in
      bankruptcy, liquidating trustee, agent or other Person making such payment
      or
      distribution, or by the Holders of the Securities or by the Trustee under this
      Indenture if received by them or it, directly to the holders of Senior
      Indebtedness (pro rata to such holders on the basis of the respective amounts
      of
      Senior Indebtedness held by such holders, or as otherwise required by law or
      a
      court order) or their representative or representatives, or to the trustee
      or
      trustees under any indenture pursuant to which any instruments evidencing any
      Senior Indebtedness may have been issued, as their respective interests may
      appear, to the extent necessary to pay all Senior Indebtedness in full, in
      cash
      or other payment satisfactory to the holders of such Senior Indebtedness, after
      giving effect to any concurrent payment or distribution to or for the holders
      of
      Senior Indebtedness, before any payment or distribution or provision therefor
      is
      made to the Holders of the Securities or to the Trustee.

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

     

    For
      purposes of this Article XII,
      the
      words, “cash,
      property or securities”
shall
      not be deemed to include shares of stock of the Company as reorganized or
      readjusted, or securities of the Company or any other corporation provided
      for
      by a plan of reorganization or readjustment, the payment of which is
      subordinated at least to the extent provided in this Article XII
      with
      respect to the Securities to the payment of all Senior Indebtedness which may
      at
      the time be outstanding; provided that (i) the Senior Indebtedness is
      assumed by the new corporation, if any, resulting from any reorganization or
      readjustment, and (ii) the rights of the holders of Senior Indebtedness
      (other than leases which are not assumed by the Company or the new corporation,
      as the case may be) are not, without the consent of such holders, altered by
      such reorganization or readjustment. The consolidation of the Company with,
      or
      the merger of the Company into, another corporation or the liquidation or
      dissolution of the Company following the conveyance or transfer of its property
      as an entirety, or substantially as an entirety, to another corporation upon
      the
      terms and conditions provided for in Article V
      shall
      not be deemed a dissolution, winding-up, liquidation or reorganization for
      the
      purposes of this Section 12.2
      if such
      other corporation shall, as a part of such consolidation, merger, conveyance
      or
      transfer, comply with the conditions stated in Article V.

     

    In
      the
      event of the acceleration of the Securities because of an Event of Default,
      no
      payment or distribution shall be made to the Trustee or any Holder of Securities
      in respect of the principal of or interest on the Securities (including, but
      not
      limited to, the redemption price with respect to the Securities called for
      redemption in accordance with Article III
      as
      provided in the Indenture), except payments and distributions made by the
      Trustee as permitted by the first or second paragraph of Section 12.5,
      until
      all Senior Indebtedness has been paid in full in cash or other payment
      satisfactory to the holders of Senior Indebtedness or such acceleration is
      rescinded in accordance with the terms of this Indenture. If payment of the
      Securities is accelerated because of an Event of Default, the Company shall
      promptly notify holders of Senior Indebtedness of the acceleration at the
      address set forth in the notice from the Agent (or successor agent) to the
      Trustee as being the address to which the Trustee should send its notice
      pursuant to this Section 12.2,
      unless
      there are no payment obligations of the Company thereunder and all obligations
      thereunder to extend credit have been terminated or expired.

     

    In
      the
      event that, notwithstanding the foregoing provisions, any payment or
      distribution of assets of the Company of any kind or character, whether in
      cash,
      property or securities (including, without limitation, by way of setoff or
      otherwise), prohibited by the foregoing, shall be received by the Trustee or
      the
      Holders of the Securities before all Senior Indebtedness is paid in full in
      cash
      or other payment satisfactory to the holders of such Senior Indebtedness, or
      provision is made for such payment thereof in accordance with its terms in
      cash
      or other payment satisfactory to the holders of such Senior Indebtedness, such
      payment or distribution shall be held in trust for the benefit of and shall
      be
      paid over or delivered to the holders of Senior Indebtedness or their
      representative or representatives, or to the trustee or trustees under any
      indenture pursuant to which any instruments evidencing any Senior Indebtedness
      may have been issued, as their respective interests may appear, as calculated
      by
      the Company, for application to the payment of all Senior Indebtedness remaining
      unpaid to the extent necessary to pay all Senior Indebtedness in full in cash
      or
      other payment satisfactory to the holders of such Senior Indebtedness, after
      giving effect to any concurrent payment or distribution to or for the holders
      of
      such Senior Indebtedness.

     

    Nothing
      in this Section 12.2
      shall
      apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.7.
      This
Section 12.2
      shall be
      subject to the further provisions of Section 12.5.

     

    SECTION
      12.3 Subrogation
      of Securities.

     

    Subject
      to the payment in full of all Senior Indebtedness, the rights of the Holders
      of
      the Securities shall be subrogated to the extent of the payments or
      distributions made to the holders of such Senior Indebtedness pursuant to the
      provisions of this Article XII
      (equally
      and ratably with the holders of all indebtedness of the Company which by its
      express terms is subordinated to other indebtedness of the Company to
      substantially the same extent as the Securities are subordinated and is entitled
      to like rights of subrogation) to the rights of the holders of Senior
      Indebtedness to receive payments or distributions of cash, property or
      securities of the Company applicable to the Senior Indebtedness until the
      principal and interest on the Securities shall be paid in full; and, for the
      purposes of such subrogation, no payments or distributions to the holders of
      the
      Senior Indebtedness of any cash, property or securities to which the Holders
      of
      the Securities or the Trustee would be entitled except for the provisions of
      this Article XII,
      and no
      payment over pursuant to the provisions of this Article XII,
      to or
      for the benefit of the holders of Senior Indebtedness by Holders of the
      Securities or the Trustee, shall, as between the Company, its creditors other
      than holders of Senior Indebtedness, and the Holders of the Securities, be
      deemed to be a payment by the Company to or on account of the Senior
      Indebtedness; and no payments or distributions of cash, property or securities
      to or for the benefit of the Holders of the Securities pursuant to the
      subrogation provisions of this Article XII,
      which
      would otherwise have been paid to the holders of Senior Indebtedness shall
      be
      deemed to be a payment by the Company to or for the account of the Securities.
      It is understood that the provisions of this Article
      XII
      are and
      are intended solely for the purposes of defining the relative rights of the
      Holders of the Securities, on the one hand, and the holders of the Senior
      Indebtedness, on the other hand.

     

    
      
        
        

      

      
        35

        
          

        

      

      
        
        

      

    

     

    Nothing
      contained in this Article XII
      or
      elsewhere in this Indenture or in the Securities is intended to or shall impair,
      as among the Company, its creditors other than the holders of Senior
      Indebtedness, and the Holders of the Securities, the obligation of the Company,
      which is absolute and unconditional, to pay to the Holders of the Securities
      the
      principal of and interest on the Securities as and when the same shall become
      due and payable in accordance with their terms, or is intended to or shall
      affect the relative rights of the Holders of the Securities and creditors of
      the
      Company other than the holders of the Senior Indebtedness, nor shall anything
      herein or therein prevent the Trustee or the Holder of any Security from
      exercising all remedies otherwise permitted by applicable law upon default
      under
      this Indenture, subject to the rights, if any, under this Article XII
      of the
      holders of Senior Indebtedness in respect of cash, property or securities of
      the
      Company received upon the exercise of any such remedy.

     

    Upon
      any
      payment or distribution of assets of the Company referred to in this
Article XII,
      the
      Trustee, subject to the provisions of Section 7.1,
      and the
      Holders of the Securities shall be entitled to rely upon any order or decree
      made by any court of competent jurisdiction in which such bankruptcy,
      dissolution, winding-up, liquidation or reorganization proceedings are pending,
      or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
      agent or other person making such payment or distribution, delivered to the
      Trustee or to the Holders of the Securities, for the purpose of ascertaining
      the
      persons entitled to participate in such distribution, the holders of the Senior
      Indebtedness and other indebtedness of the Company, the amount thereof or
      payable thereon and all other facts pertinent thereto or to this Article
      XII.

     

    SECTION
      12.4 Authorization
      to Effect Subordination.

     

    Each
      Holder of a Security by the holder’s acceptance thereof authorizes and directs
      the Trustee on the holder’s behalf to take such action as may be necessary or
      appropriate to effectuate the subordination as provided in this Article XII
      and
      appoints the Trustee to act as the holder’s attorney-in-fact for any and all
      such purposes. If the Trustee does not file a proper proof of claim or proof
      of
      debt in the form required in any proceeding referred to in Section 6.3
      hereof
      at least 30 days before the expiration of the time to file such claim, the
      holders of any Senior Indebtedness or their representatives are hereby
      authorized to file an appropriate claim for and on behalf of the Holders of
      the
      Securities.

     

    SECTION
      12.5 Notice
      to Trustee.

     

    The
      Company shall give prompt written notice in the form of an Officers’ Certificate
      to a Responsible Officer of the Trustee and to any paying agent of any fact
      known to the Company which would prohibit the making of any payment of monies
      to
      or by the Trustee or any paying agent in respect of the Securities pursuant
      to
      the provisions of this Article XII.
      Notwithstanding the provisions of this Article XII
      or any
      other provision of this Indenture, the Trustee shall not be charged with
      knowledge of the existence of any facts which would prohibit the making of
      any
      payment of monies to or by the Trustee in respect of the Securities pursuant
      to
      the provisions of this Article XII,
      unless
      and until a Responsible Officer of the Trustee shall have received written
      notice thereof at the Corporate Trust Office from the Company (in the form
      of an
      Officers’ Certificate) or a Representative or a holder or holders of Senior
      Indebtedness or from any trustee thereof; and before the receipt of any such
      written notice, the Trustee, subject to the provisions of Section 7.1,
      shall
      be entitled in all respects to assume that no such facts exist; provided that
      if
      on a date not fewer than two Business Days prior to the date upon which by
      the
      terms hereof any such monies may become payable for any purpose (including,
      without limitation, the payment of the principal of or interest on any Security)
      the Trustee shall not have received, with respect to such monies, the notice
      provided for in this Section 12.5,
      then,
      anything herein contained to the contrary notwithstanding, the Trustee shall
      have full power and authority to receive such monies and to apply the same
      to
      the purpose for which they were received, and shall not be affected by any
      notice to the contrary which may be received by it on or after such prior
      date.

     

    
      
        
        

      

      
        36

        
          

        

      

      
        
        

      

    

     

    Notwithstanding
      anything in this Article XII
      to the
      contrary, nothing shall prevent any payment by the Trustee to the Holders of
      monies deposited with it pursuant to Section 8.1,
      and any
      such payment shall not be subject to the provisions of Section 12.1
      or 12.2.

     

    The
      Trustee, subject to the provisions of Section 7.1,
      shall
      be entitled to rely on the delivery to it of a written notice by a
      Representative or a person representing himself to be a holder of Senior
      Indebtedness (or a trustee on behalf of such holder) to establish that such
      notice has been given by a Representative or a holder of Senior Indebtedness
      or
      a trustee on behalf of any such holder or holders. In the event that the Trustee
      determines in good faith that further evidence is required with respect to
      the
      right of any person as a holder of Senior Indebtedness to participate in any
      payment or distribution pursuant to this Article XII,
      the
      Trustee may request such person to furnish evidence to the reasonable
      satisfaction of the Trustee as to the amount of Senior Indebtedness held by
      such
      person, the extent to which such person is entitled to participate in such
      payment or distribution and any other facts pertinent to the rights of such
      person under this Article XII,
      and if
      such evidence is not furnished the Trustee may defer any payment to such person
      pending judicial determination as to the right of such person to receive such
      payment.

     

    SECTION
      12.6 Trustee’s
      Relation to Senior Indebtedness.

     

    The
      Trustee in its individual capacity shall be entitled to all the rights set
      forth
      in this Article XII
      in
      respect of any Senior Indebtedness at any time held by it, to the same extent
      as
      any other holder of Senior Indebtedness, and nothing in Section 7.11
      or
      elsewhere in this Indenture shall deprive the Trustee of any of its rights
      as
      such holder.

     

    With
      respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
      or to observe only such of its covenants and obligations as are specifically
      set
      forth in this Article XII,
      and no
      implied covenants or obligations with respect to the holders of Senior
      Indebtedness shall be read into this Indenture against the Trustee. The Trustee
      shall not be deemed to owe any fiduciary duty to the holders of Senior
      Indebtedness and, subject to the provisions of Section 7.1,
      the
      Trustee shall not be liable to any holder of Senior Indebtedness if it shall
      pay
      over or deliver to Holders of Securities, the Company or any other person money
      or assets to which any holder of Senior Indebtedness shall be entitled by virtue
      of this Article XII
      or
      otherwise.

     

    SECTION
      12.7 No
      Impairment of Subordination.

     

    No
      right
      of any present or future holder of any Senior Indebtedness to enforce
      subordination as herein provided shall at any time in any way be prejudiced
      or
      impaired by any act or failure to act on the part of the Company or by any
      act
      or failure to act, in good faith, by any such holder, or by any noncompliance
      by
      the Company with the terms, provisions and covenants of this Indenture,
      regardless of any knowledge thereof which any such holder may have or otherwise
      be charged with.

     

    SECTION
      12.8 Article
      Applicable to Paying Agents.

     

    If
      at any
      time any Paying Agent other than the Trustee shall have been appointed by the
      Company and be then acting hereunder, the term “Trustee” as used in this Article
      shall (unless the context otherwise requires) be construed as extending to
      and
      including such Paying Agent within its meaning as fully for all intents and
      purposes as if such Paying Agent were named in this Article in addition to
      or in
      place of the Trustee; provided, however, that the first paragraph of
Section 12.5
      shall
      not apply to the Company or any Affiliate of the Company if it or such Affiliate
      acts as Paying Agent.

     

    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

     

    SECTION
      12.9 Senior
      Indebtedness Entitled to Rely.

     

    The
      holders of Senior Indebtedness (including, without limitation, Designated Senior
      Indebtedness) shall have the right to rely upon this Article
      XII,
      and no
      amendment or modification of the provisions contained herein shall diminish
      the
      rights of such holders unless such holders shall have agreed in writing
      thereto.

     

     

     

     

     

     

    
 

    
      
        
        

      

      
        38

        
          

        

      

      
        
        

      

    


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

     

     

    
      
        	 	 	JAMES
                RIVER COAL COMPANY	 
	 	 	 	 	 	 
	 	 	
                By:

              	 	 
	 	 	 	 	 	 
	 	 	 	Name:	  	 
	 	 	 	 	 	 
	 	 	 	Its:	 	 
	 	 	 	 	 	 
	 	 	Attest:	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	[TRUSTEE]	 	 
	 	 	 	 	 	 
	 	 	By:	 	 
	 	 	 	 	 	 
	 	 	 	Name:	   	 
	 	 	 	 	 	 
	 	 	 	Its:	  	 
	 	 	 	 	 	 
	 	 	Attest:	 	 


      

    

     

     

    39