Exhibit 4.1



 





EXHIBIT
4.1




XTRA FINANCE CORPORATION

(as Issuer)




and




BERKSHIRE HATHAWAY INC.

(as Guarantor)




TO




THE BANK OF NEW YORK TRUST COMPANY, N.A.




(as Trustee)




 






INDENTURE




Dated as of March 20, 2007




 






 









 






TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE One Definitions and Other Provisions of General Application
	 	 	1	 
	SECTION 101. Definitions
	 	 	1	 
	SECTION 102. Compliance Certificates and Opinions
	 	 	9	 
	SECTION 103. Form of Documents Delivered to Trustee
	 	 	10	 
	SECTION 104. Acts of Holders; Record Dates
	 	 	10	 
	SECTION 105. Notices, Etc., to Trustee, Company and Guarantor
	 	 	12	 
	SECTION 106. Notice to Holders; Waiver
	 	 	13	 
	SECTION 107. Conflict with Trust Indenture Act
	 	 	13	 
	SECTION 108. Effect of Headings and Table of Contents
	 	 	13	 
	SECTION 109. Successors and Assigns
	 	 	13	 
	SECTION 110. Separability Clause
	 	 	14	 
	SECTION 111. Benefits of Indenture
	 	 	14	 
	SECTION 112. Governing Law
	 	 	14	 
	SECTION 113. Legal Holidays
	 	 	14	 
	ARTICLE Two Security Forms
	 	 	14	 
	SECTION 201. Forms Generally
	 	 	14	 
	SECTION 202. Form of Face of Debt Security
	 	 	15	 
	SECTION 203. Form of Reverse of Debt Security
	 	 	17	 
	SECTION 204. Form of Legend for Global Securities
	 	 	20	 
	SECTION 205. Form of Legend for Restricted Securities
	 	 	21	 
	SECTION 206. Form of Trustee’s Certificate of Authentication
	 	 	21	 
	ARTICLE
Three The Securities
	 	 	21	 
	SECTION 301. Amount Unlimited; Issuable in Series
	 	 	21	 
	SECTION 302. Denominations
	 	 	24	 
	SECTION 303. Execution, Authentication, Delivery and Dating
	 	 	25	 
	SECTION 304. Temporary Securities
	 	 	26	 
	SECTION 305. Registration, Registration of Transfer and Exchange
	 	 	27	 
	SECTION 306. Additional Provisions Related to Transfer and Exchange of Restricted
Securities
	 	 	29	 
	SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	30	 
	SECTION 308. Payment of Interest; Interest Rights Preserved
	 	 	31	 
	SECTION 309. Additional or Special Interest Under Registration Rights Agreements
	 	 	32	 
	SECTION 310. Persons Deemed Owners
	 	 	32	 






i









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 311. Cancellation
	 	 	32	 
	SECTION 312. Computation of Interest
	 	 	33	 
	SECTION 313. Execution of Guarantee
	 	 	33	 
	SECTION 314. Assumption by Guarantor
	 	 	33	 
	ARTICLE Four Satisfaction and Discharge
	 	 	34	 
	SECTION 401. Satisfaction and Discharge of Indenture
	 	 	34	 
	SECTION 402. Application of Trust Money
	 	 	35	 
	ARTICLE Five Remedies
	 	 	35	 
	SECTION 501. Events of Default
	 	 	35	 
	SECTION 502. Acceleration of Maturity; Rescission and Annulment
	 	 	37	 
	SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	38	 
	SECTION 504. Trustee May File Proofs of Claim
	 	 	38	 
	SECTION 505. Trustee May Enforce Claims Without Possession of Securities
	 	 	39	 
	SECTION 506. Application of Money Collected
	 	 	39	 
	SECTION 507. Limitation on Suits
	 	 	40	 
	SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest
	 	 	40	 
	SECTION 509. Restoration of Rights and Remedies
	 	 	40	 
	SECTION 510. Rights and Remedies Cumulative
	 	 	41	 
	SECTION 511. Delay or Omission Not Waiver
	 	 	41	 
	SECTION 512. Control by Holders
	 	 	41	 
	SECTION 513. Waiver of Past Defaults
	 	 	41	 
	SECTION 514. Undertaking for Costs
	 	 	42	 
	SECTION 515. Waiver of Usury, Stay or Extension Laws
	 	 	42	 
	ARTICLE Six The Trustee
	 	 	42	 
	SECTION 601. Certain Duties and Responsibilities
	 	 	42	 
	SECTION 602. Notice of Defaults
	 	 	42	 
	SECTION 603. Certain Rights of Trustee
	 	 	43	 
	SECTION 604. Not Responsible for Recitals or Issuance of Securities
	 	 	44	 
	SECTION 605. May Hold Securities
	 	 	44	 
	SECTION 606. Money Held in Trust
	 	 	44	 
	SECTION 607. Compensation and Reimbursement
	 	 	44	 
	SECTION 608. Conflicting Interests
	 	 	45	 






ii









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 609. Corporate Trustee Required; Eligibility
	 	 	45	 
	SECTION 610. Resignation and Removal; Appointment of Successor
	 	 	45	 
	SECTION 611. Acceptance of Appointment by Successor
	 	 	47	 
	SECTION 612. Merger, Conversion, Consolidation or Succession to Business
	 	 	48	 
	SECTION 613. Preferential Collection of Claims Against Company
	 	 	48	 
	SECTION 614. Appointment of Authenticating Agent
	 	 	48	 
	ARTICLE Seven Holders’ Lists and Reports by Trustee and Company
	 	 	50	 
	SECTION 701. Company to Furnish Trustee Names and Addresses of Holders
	 	 	50	 
	SECTION 702. Preservation of Information; Communications to Holders
	 	 	50	 
	SECTION 703. Reports by Trustee
	 	 	50	 
	SECTION 704. Reports by Company and Guarantor
	 	 	51	 
	ARTICLE Eight Consolidation, Merger, Conveyance, Transfer or Lease
	 	 	51	 
	SECTION 801. Company and Guarantor May Consolidate, Etc., Only on Certain Terms
	 	 	51	 
	SECTION 802. Successor Substituted
	 	 	52	 
	ARTICLE Nine Supplemental Indentures
	 	 	52	 
	SECTION 901. Supplemental Indentures Without Consent of Holders
	 	 	52	 
	SECTION 902. Supplemental Indentures With Consent of Holders
	 	 	53	 
	SECTION 903. Execution of Supplemental Indentures
	 	 	54	 
	SECTION 904. Effect of Supplemental Indentures
	 	 	54	 
	SECTION 905. Conformity with Trust Indenture Act
	 	 	54	 
	SECTION 906. Reference in Securities to Supplemental Indentures
	 	 	55	 
	ARTICLE Ten Covenants
	 	 	55	 
	SECTION
1001. Payment of Principal, Premium and Interest
	 	 	55	 
	SECTION
1002. Maintenance of Office or Agency
	 	 	55	 
	SECTION
1003. Money for Securities Payments to Be Held in Trust
	 	 	55	 
	SECTION
1004. Statement by Officers as to Default
	 	 	57	 
	SECTION
1005. Waiver of Certain Covenants
	 	 	57	 
	ARTICLE
Eleven Redemption of Securities
	 	 	57	 
	SECTION
1101. Applicability of Article
	 	 	57	 






iii









 







TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION
1102. Election to Redeem; Notice to Trustee
	 	 	57	 
	SECTION
1103. Selection by Trustee of Securities to Be Redeemed
	 	 	58	 
	SECTION
1104. Notice of Redemption
	 	 	58	 
	SECTION
1105. Deposit of Redemption Price
	 	 	59	 
	SECTION
1106. Securities Payable on Redemption Date
	 	 	59	 
	SECTION
1107. Securities Redeemed in Part
	 	 	60	 
	ARTICLE
Twelve Sinking Funds
	 	 	60	 
	SECTION
1201. Applicability of Article
	 	 	60	 
	SECTION
1202. Satisfaction of Sinking Fund Payments with Securities
	 	 	60	 
	SECTION
1203. Redemption of Securities for Sinking Fund
	 	 	60	 
	ARTICLE Thirteen Defeasance and Covenant Defeasance
	 	 	61	 
	SECTION 1301. Company’s Option to Effect Defeasance or Covenant Defeasance
	 	 	61	 
	SECTION 1302. Defeasance and Discharge
	 	 	61	 
	SECTION 1303. Covenant Defeasance
	 	 	62	 
	SECTION 1304. Conditions to Defeasance or Covenant Defeasance
	 	 	62	 
	SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions
	 	 	64	 
	SECTION
1306. Reinstatement
	 	 	64	 
	Annex A FORM OF GUARANTEE BERKSHIRE HATHAWAY INC.
	 	 	66	 
	Exhibit A Form of Certificate For Transfer From
Rule 144A Global Security to Regulation S Global Security
	 	 	A-1	 
	Exhibit B Form of Certificate For Transfer From
Regulation S Global Security to Rule 144A Global Security
	 	 	B-1	 
	Exhibit C Form of Certificate for Transfers Pursuant To Rule 144
	 	 	C-1	 







iv









 





CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310

THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939: 1*




TRUST INDENTURE




	 	 	 
	ACT SECTION	 	INDENTURE SECTION
	Section 310(a)(1) 
	 	609
	(a)(2) 
	 	609
	(a)(3) 
	 	Not Applicable
	(a)(4) 
	 	Not Applicable
	(a)(5) 
	 	609
	(b)
	 	608
	(c)
	 	Not Applicable
	Section 311(a)
	 	613
	(b)
	 	613
	(c)
	 	Not Applicable
	Section 312(a) 
	 	701
	 
	 	702
	(b)
	 	702
	(c)
	 	702
	Section 313(a)
	 	703
	(b)
	 	703
	(c)
	 	703
	(d)
	 	703
	Section 314(a)(1)(2) and (3) 
	 	704
	(a)(4) 
	 	102
	 
	 	1004
	(b)
	 	Not Applicable
	(c)(1) 
	 	102
	(c)(2) 
	 	102
	(c)(3) 
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	102
	(f)
	 	Not Applicable
	Section 315(a)
	 	601
	(b)
	 	602
	(c)
	 	601
	(d)
	 	601
	(e)
	 	514
	Section 316(a) 
	 	101
	(a)(1)(A) 
	 	502
	 
	 	512
	(a)(1)(B) 
	 	513
	(a)(2) 
	 	Not Applicable
	(b)
	 	508
	(c)
	 	104
	Section 317(a)(1) 
	 	503
	(a)(2) 
	 	504
	(b)
	 	1003
	Section 318(a)
	 	107








 




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




 









 










          INDENTURE, dated as of March 20, 2007, among XTRA FINANCE CORPORATION, a corporation duly
organized and existing under the laws of the State of Delaware (herein called the “Company”),
having its principal office at 1801 Park 270 Drive, Suite 400, St. Louis, Missouri 63146, BERKSHIRE
HATHAWAY INC., a corporation duly organized and existing under the laws of the State of Delaware
(herein called the “Guarantor”), having its principal office at 1440 Kiewit Plaza, Omaha, Nebraska
68131, and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association duly organized
and existing under the laws of the United States , as Trustee (herein called the “Trustee”).




RECITALS




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




          The Guarantor has duly authorized the execution and delivery of this Indenture and deems it
appropriate from time to time to issue its guarantee of the Debt Securities on the terms herein
provided (such guarantee together with the Debt Securities, the “Securities”).




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




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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




ARTICLE ONE




Definitions and Other Provisions

of General Application




          SECTION 101. Definitions.




     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:




     (1) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;




     (2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and, except as otherwise
herein expressly provided, the term “generally accepted accounting principles” with respect
to any computation required or permitted hereunder shall mean



1









 







such accounting principles as are generally accepted and applied by the Company or the
Guarantor, as the case may be, on a consistent basis at the date of such computation;




     (4) unless the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Indenture;




     (5) the words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and




     (6) unless otherwise expressly provided, the word “including” does not limit the
preceding words or terms.



          “Act”, when used with respect to any Holder, has the meaning specified in Section 104.




          “Add On Securities” has the meaning specified in Section 301.




          “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” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.




          “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.




          “Board of Directors” means either the board of directors of the Company or the Guarantor, as
the case may be, or any duly authorized committee of such board.




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




          “Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.




          “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including Preferred Stock, but excluding any debt securities convertible
into such equity.




          “Capitalized Lease Obligation” means an obligation under a lease that is required to be
capitalized for financial reporting purposes in




2









 







accordance with generally accepted accounting principles, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such obligation determined in
accordance with such principles.




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




          “Company” means the Person named as the “Company” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.




          “Consolidated Subsidiary” means as at any date, or for any period, any Subsidiary of the
Guarantor the accounts of which are consolidated in accordance with generally accepted accounting
principals with those of the Guarantor in its consolidated financial statements as of such date or
for such period.




          “Corporate Trust Office” means the office
of the Trustee located at 101 Barclay Street, 7E, New York, NY 10286.




          “Corporation” means a corporation, association, company, joint-stock company or business
trust.




          “Covenant Defeasance” has the meaning specified in Section 1303.




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




          “Defaulted Interest” has the meaning specified in Section 307.




          “Defeasance” has the meaning specified in Section 1302.




          “Depositary” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301.




          “Event of Default” has the meaning specified in Section 501.




          “Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.




          “Exchange Securities” means Securities issued in a Registered Exchange Offer in exchange for a
like principal amount of Securities originally issued as Restricted Securities and replacement
Securities issued therefor in accordance with this Indenture.




          “Expiration Date” has the meaning specified in Section 104.




          “Global Security” means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 204




3









 







(or such legend as may be specified as contemplated by Section 301 for such Securities) and is
issued to the Depository for such series or its nominee and registered in the name of such
Depository or nominee.




          “Guarantee” means an agreement of the Guarantor, in the form set forth as Annex A
hereto or in any other form specified in accordance with Section 301 hereof, to be endorsed on the
Debt Securities authenticated and delivered under this Indenture.




          “Guarantor” means the Person named as the “Guarantor” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Guarantor” shall mean such successor Person.




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




          “Indebtedness” means, with respect to any Person:





     (1) the principal of and any premium and interest on, whether outstanding on the date
hereof or hereafter created, incurred, or assumed, which is (a) indebtedness of such Person
for money borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or liable;




     (2) all Capitalized Lease Obligations of such Person;




     (3) all obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course of business
or which are payable in full within 90 days from the date such Indebtedness is incurred);




     (4) all obligations of such Person for the reimbursement of any obligor on any letter
of credit, banker’s acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations described in (1)
through (3) above) entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed no later than the third Business Day following receipt by such Person
of a demand for reimbursement following payment on the letter of credit);




     (5) all obligations of the type referred to in clauses (1) through (4) of other Persons
and all dividends of other Persons for the payment of which, in either case, such Person is
responsible or liable as obligor, guarantor or otherwise;




     (6) all obligations of the type referred to in clauses (1) through (5) of other Persons
secured by any lien or encumbrance on any property or asset of such Person (whether or not
such obligation is assumed by such Person), the amount of such obligation being deemed to be
the lesser of the value of such property or assets or the amount of the obligation so
secured; and



4









 






     (7) any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (1) through (6) above.



          “Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 301.




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




          “Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.




          “Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.




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




          “Non-U.S. Person” means a Person who is not a U.S. person, as defined in Regulation S.




          “Notice of Default” means a written notice of the kind specified in Section 501(4) or 501(5).




          “Officers’ Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President, and by the Chief Financial Officer,
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or the
Guarantor, as the case may be, and delivered to the Trustee. One of the officers signing an
Officers’ Certificate given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.




          “Opinion of Counsel” means a written opinion of counsel, who may be in-house counsel for the
Company or the Guarantor, and who shall be acceptable to the Trustee.




          “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.




          “Outstanding”, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:




5









 









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




     (2) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company or the
Guarantor) in trust or set aside and segregated in trust by the Company or the Guarantor (if
the Company or the Guarantor shall act as the Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;




     (3) Securities as to which Defeasance has been effected pursuant to Section 1302; and




     (4) Securities which have been paid pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company and the
Guarantor;


provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date,
the principal amount payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal amount of a Security
denominated in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided
as contemplated by Section 301, of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount determined as provided in such
Clause), and (D) Securities owned by the Company, the Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, the Guarantor or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent,
waiver or other action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Company, the Guarantor or any
other obligor upon the Securities or any Affiliate of the Company, the Guarantor or of such other
obligor.




6









 








          “Paying Agent” means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.




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




          “Place of Payment”, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.




          “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt and guarantee as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt and guarantee as the mutilated, destroyed, lost or stolen Security.




          “Preferred Stock” in respect of any corporation means Capital Stock of any class or classes
(however designated) which is preferred as to the payment of dividends, or as to the distribution
of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation.




          “Private Placement Legend” has the meaning specified in Section 205.




          “QIB” means any “qualified institutional buyer,” as defined in Rule 144A.




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




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




          “Registered Exchange Offer” means an exchange offer by the Company registered under the
Securities Act pursuant to which Restricted Securities are exchanged for Securities of like
principal amount not bearing the Private Placement Legend.




          “Registration Rights Agreement” means any registration rights agreement among the Company, the
Guarantor and one or more initial purchasers in connection with the issuance of Restricted
Securities of any series under this Indenture.




          “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.




7









 








          “Regulation S” means Regulation S under the Securities Act (including any successor regulation
thereto), as it may be amended from time to time.




          “Regulation S Global Security” has the meaning specified in Section 201.




          “Request” means a written request or order signed in the name of the Company or the Guarantor,
as the case may be, by its Chairman of the Board, its Vice Chairman of the Board, its President or
a Vice President, and by its Chief Financial Officer, Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.




          “Restricted Security” means any Security (or beneficial interest therein) not originally
issued and sold in a transaction registered under the Securities Act, until such time as: (i) such
Security (or beneficial interest therein) has been transferred in a transaction registered under
the Securities Act; (ii) the Restriction Termination Date therefor has passed; or (iii) the Private
Placement Legend therefor has otherwise been removed pursuant to Section 306(d) hereof or, in the
case of a beneficial interest in a Global Security, such beneficial interest has been exchanged for
an interest in a Global Security not bearing a Private Placement Legend.




          “Restriction Termination Date” means, with respect to any Restricted Security (or beneficial
interest therein) resold in reliance on Rule 144A, two years (or such other period specified in
Rule 144(k)) or, with respect to any Restricted Security (or beneficial interest therein) resold in
reliance on Regulation S, the last day of the distribution compliance period specified in Rule 903
of Regulation S (if applicable), in each case from the original issue date of such Restricted
Security or, if any additional Restricted Securities within the same series have been issued and
sold prior to the Restriction Termination Date for such Restricted Security, from the latest
original issue date of such additional Securities.




          “Rule 144” means Rule 144 under the Securities Act (including any successor regulation
thereto), as it may be amended from time to time.




          “Rule 144A” means Rule 144A under the Securities Act (including any successor regulation
thereto), as it may be amended from time to time.




          “Rule 144A Global Security” has the meaning specified in Section 201.




          “Securities” has the meaning stated in the second recital of this Indenture and more
particularly means any Debt Securities with a Guarantee authenticated and delivered under this
Indenture.




          “Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.




          “Security Register” and “Security Registrar” have the respective meanings specified in Section
305.




          “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.




8









 








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




          “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 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 or include 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 Obligation” has the meaning specified in Section 1304.




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




          SECTION 102. Compliance Certificates and Opinions.




          Upon any application or request by the Company or the Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or the Guarantor, as the case may be,
shall furnish to the Trustee such certificates and opinions as the Trustee may reasonably request.
Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be
given by an officer of the Company or the Guarantor, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.




          Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 1004) shall include,





     (1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;



9









 






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




     (3) a statement that, in the opinion of each such individual, 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




     (4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.



          SECTION 103. Form of Documents Delivered to Trustee.




          In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.




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




          Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.




          SECTION 104. Acts of Holders; Record Dates.




          Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee
and, where it is hereby expressly required, to the Company and/or the Guarantor. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this




10









 







Indenture and (subject to Section 601) conclusive in favor of the Trustee, the Company and the
Guarantor, if made in the manner provided in this Section. The Holder of a Global Security may
grant proxies and otherwise authorize any Person, including owners of beneficial interests in such
Global Security, to take any action that a Holder is entitled to take under this Indenture.




          The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.




          The ownership of Securities shall be proved by the Security Register.




          Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company
and/or the Guarantor in reliance thereon, whether or not notation of such action is made upon such
Security.




          The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to

11









 








the Trustee in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.




          The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date
for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the Company in writing
and to each Holder of Securities of the relevant series in the manner set forth in Section 106.




          With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which set such record
date shall be deemed to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.




          Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.




          SECTION 105. Notices, Etc., to Trustee, Company and Guarantor.




          Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with, (1) the Trustee by any Holder or by the Company or the Guarantor shall be sufficient




12









 







for every purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention: Global Corporate Trust, or (2) the Company or the
Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the
Company or the Guarantor, as the case may be, addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company or the Guarantor, Attention: Chief Financial
Officer.




          SECTION 106. Notice to Holders; Waiver.




          Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.




          In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.




          SECTION 107. Conflict with Trust Indenture Act.




          If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.




          SECTION 108. Effect of Headings and Table of Contents.




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




          SECTION 109. Successors and Assigns.




          All covenants and agreements in this Indenture by the Company and the Guarantor shall bind
their respective successors and assigns, whether so expressed or not.




13









 








          SECTION 110. Separability Clause.




          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 111. Benefits of Indenture.




          Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.




          SECTION 112. Governing Law.




          This Indenture and the Securities shall be governed by and construed in accordance with the
law of the State of New York.




          SECTION 113. Legal Holidays.




          In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity.




ARTICLE TWO




Security Forms




          SECTION 201. Forms Generally.




          The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Debt Securities of any series or the form
of Guarantee is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company or the Guarantor, as the case may be, and delivered to the Trustee at or prior to the
delivery of the Request contemplated by Section 303 for the authentication and delivery of such
Debt Securities and Guarantee.




14









 








          Any Securities originally offered and sold to QIBs in reliance on Rule 144A will be issued in
the form of one or more permanent Global Securities (each, a “Rule 144A Global Security”). Any
Securities originally offered and sold outside the United States in reliance on Regulation S will
be issued in the form of one or more permanent Global Securities (each, a “Regulation S Global
Security”).




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




          SECTION 202. Form of Face of Debt Security.




          [Insert any legend required by the Internal Revenue Code and the regulations thereunder.]




XTRA FINANCE CORPORATION




			
	 	 	 
	No.                     
	 	$                     






          XTRA Finance Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the “Company”, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to [            ],
or registered assigns, the principal sum of [            ] Dollars on [            ] [if
the Debt Security is to bear interest prior to Maturity, insert, and to pay interest thereon from [     
] or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on [       ] and [       ] in each year, commencing [       ], at
the rate of [    ]% per annum, until the principal hereof is paid or made available for payment [if
applicable, insert, provided that any principal and premium, and any such installment of interest,
which is overdue shall bear interest at the rate of [    ]% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such amounts are due until
they are paid or made available for payment, and such interest shall be payable on demand]. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this Debt Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest, which shall be the [       ] or [       ] (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Debt Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].




15









 







[If the Debt Security is not to bear interest prior to Maturity, insert — The principal of this
Debt Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of [      ]% per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall be payable
on demand. [Any such interest on overdue principal or premium which is not paid on demand shall
bear interest at the rate of [            ]% per annum (to the extent that the payment of such interest on
interest shall be legally enforce able), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be payable on
demand.]]




          Payment of the principal of (and premium, if any) and [if applicable, insert — any such]
interest on this Debt Security will be made at the office or agency of the Company maintained for
that purpose in [                 ], in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts [if applicable, insert —,
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such address shall appear in
the Security Register].




          [Insert, if applicable, the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be redeemed, in whole or in
part, at the option of the Company, unless the terms of such redemption are as specified on the
reverse side]




          Reference is hereby made to the further provisions of this Debt Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same effect as if set
forth at this place.




          Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Debt Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.




          IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.




	 	 	 	 	 
	Dated: 	XTRA FINANCE CORPORATION

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 



16









 






	 	 	 	 	 



          SECTION 203. Form of Reverse of Debt Security.




          This Debt Security is one of a duly authorized issue of securities of the Company (herein
called the “Debt Securities”), issued and to be issued in one or more series under an Indenture,
dated as of March 20, 2007 (herein called the “Indenture”, which term shall have the meaning
assigned to it in such instrument), among the Company, as issuer, Berkshire Hathaway Inc., as
guarantor (herein called the “Guarantor”, which term includes any successor Guarantor under the
Indenture) and The Bank of New York Trust Company, N.A., as Trustee (herein called the “Trustee”,
which term includes any successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantor, the Trustee and the Holders of the Debt Securities and of
the terms upon which the Debt Securities are, and are to be, authenticated and delivered. This
Debt Security is one of the series designated on the face hereof, limited in aggregate principal
amount to $[                 ].




          [If applicable, insert— The Debt Securities of this series are subject to redemption upon not
less than 30 days’ notice by mail, [if applicable, insert— (1) on [            ] in any year
commencing with the year [       ] and ending with the year [       ] through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any
time [if applicable, insert— on or after [            ], 20[    ], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert— on or before [            ], [    ]%, and if
redeemed] during the 12-month period beginning [            ] of the years indicated,




	 	 	 	 	 	 	 
	 

	 	Redemption
	 	 	 	Redemption
	Year

	 	Price
	 	Year
	 	Price
	 

	 	 
	 	 
	 	 




and thereafter at a Redemption Price equal to [       ]% of the principal amount, together in the case
of any such redemption [if applicable, insert — (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Debt
Securities, or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]




          [If applicable, insert— The Debt Securities of this series are subject to redemption upon not
less than 30 days’ notice by mail, (1) on [            ] in any year commencing with the year [       ] and
ending with the year [       ] through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [if applicable, insert— on or
after [       ], as a




17









 







whole or in part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period beginning [ ] of the
years indicated,




	 	 	 	 	 
	 

	 	 	 	Redemption Price For
	 

	 	Redemption Price For
	 	Redemption Otherwise
	 

	 	Redemption Through
	 	Than Through
	 

	 	Operation of the
	 	Operation of the
	Year

	 	Sinking Fund
	 	Sinking Fund
	 

	 	 
	 	 




and thereafter at a Redemption Price equal to [    ]% of the principal amount, together in the case
of any such redemption (whether through operation of the sinking fund or other wise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Debt Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]




          [If applicable, insert — Notwithstanding the foregoing, the Company may not, prior to [    ],
redeem any Debt Securities of this series as contemplated by [if applicable, insert — Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less than [ ]% per
annum.]




          [If applicable, insert — The sinking fund for this series provides for[                      ]
the redemption on [                      ] in each year beginning with the year [            ] and ending with
the year [            ] of [if applicable, insert — not less than $[       ] (“mandatory sinking fund”) and
not more than] $[       ] aggregate principal amount of Debt Securities of this series. Securities of
this series acquired or redeemed by the Company otherwise than through [if applicable, insert —
mandatory] sinking fund payments may be credited against subsequent [if applicable, insert —
mandatory] sinking fund payments otherwise required to be made [if applicable, insert — , in the
inverse order in which they become due].]




          [If the Debt Security is subject to redemption of any kind, insert — In the event of
redemption of this Debt Security in part only, a new Debt Security or Debt Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.]




          [If the Debt Security is not subject to redemption, insert — This Debt Security is not
redeemable prior to Stated Maturity.]




          [If applicable, insert — The Indenture contains provisions for defeasance at any time of [the
entire Indebtedness of this Debt Security]




18









 







[or] [certain restrictive covenants and Events of Default with respect to this Debt Security]
[, in each case] upon compliance with certain conditions set forth in the Indenture.]




          [If the Debt Security is not an Original Issue Discount Security, insert — If an Event of
Default with respect to Debt Securities of this series shall occur and be continuing, the principal
of the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]




          [If the Debt Security is an Original Issue Discount Security, insert — If an Event of Default
with respect to Debt Securities of this series shall occur and be continuing, an amount of
principal of the Debt Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture. Such amount shall be equal to — insert formula for
determining the amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each case to the extent
that the payment of such interest shall be legally enforceable), all of the Company’s obligations
in respect of the payment of the principal of and premium and interest, if any, on the Debt
Securities of this series shall terminate.]




          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor and the rights of
the Holders of the Debt Securities of each series and of Guarantees to be affected under the
Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders
of 51% in principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders
of all Securities of such series, to waive compliance by the Company and/or the Guarantor with
certain provisions of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Debt Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Debt Security and of any Debt
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Debt Security.




          As provided in and subject to the provisions of the Indenture, the Holder of this Debt
Security shall not have the right to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less than 25% in principal amount of
the Securities of this series at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Debt Security for the

19









 








enforcement of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.




          No reference herein to the Indenture and no provision of this Debt Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Debt Security at the times, place and
rate, and in the coin or currency, herein prescribed.




          As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Debt Security is registrable in the Security Register, upon surrender of this Debt
Security for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Debt Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Debt Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.




          The Debt Securities of this series are issuable in [registered/global] form without coupons in
denominations of $[       ] and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Debt Securities of this series are exchangeable
for a like aggregate principal amount of Debt Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the same.




          No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.




          Prior to due presentment of this Debt Security for registration of transfer, the Company, the
Guarantor, the Trustee and any agent of the Company or the Trustee may treat the Person in whose
name this Debt Security is registered as the owner hereof for all purposes, whether or not this
Debt Security be overdue, and none of the Company, the Guarantor, the Trustee or any such agent
shall be affected by notice to the contrary.




          [If applicable, insert — Except in the limited circumstances described in Section 305 of the
Indenture, the Debt Securities of this series shall be issued in the form of one or more Global
Securities and [___] shall be the Depositary for such Global Security or Securities.]




          All terms used in this Debt Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.




          SECTION 204. Form of Legend for Global Securities.




          Unless otherwise specified as contemplated by Section 301 for the Debt Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:




20









 







THIS DEBT SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS DEBT SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS DEBT SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




          SECTION 205. Form of Legend for Restricted Securities.




          Each Restricted Security shall bear the following legend (the “Private Placement Legend”) on
the face thereof; provided, however, that the Private Placement Legend on any Security shall be
removed at the request of the Holder on or after the date when such Security ceases to be a
Restricted Security:





THIS DEBT SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE DEBT SECURITY
EVIDENCED HEREBY IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.




THIS DEBT SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1)
TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.




THIS DEBT SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS DEBT SECURITY TO REFLECT
ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS DEBT
SECURITY SHALL BE DEEMED BY THE ACCEPTANCE HEREOF TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.



          SECTION 206. Form of Trustee’s Certificate of Authentication.




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




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




	 	 	 	 	 	 	 
	 	 	The Bank of New York Trust Company, N.A., as Trustee,	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 






21









 






ARTICLE THREE




The Securities




          SECTION 301. Amount Unlimited; Issuable in Series.




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




          The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series, the following terms of securities of such series,





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




     (2) 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 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);




     (3) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest;




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




     (5) the rate or rates at which any Securities of the series shall bear interest, if
any, the date or dates from which any such interest shall accrue, the Interest Payment Dates
on which any such interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;




     (6) the place or places where the principal of and any premium and interest on any
Securities of the series shall be payable;




     (7) if applicable, the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be redeemed, in whole
or in part, at the option of the Company and, if other than by a Board Resolution, the



22









 







manner in which any election by the Company to redeem the Securities shall be
evidenced;




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




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




     (10) if the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;




     (11) if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 101;




     (12) if the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such election is made shall be payable,
the periods within which and the terms and conditions upon which such election is to be made
and the amount so payable (or the manner in which such amount shall be determined);




     (13) if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;




     (14) if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which shall be deemed to be the principal amount of such Securities as of any
such date for any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any
such case, the manner in which such amount deemed to be the principal amount shall be
determined);




     (15) if applicable, whether the Securities of the series, in whole or any specified
part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections
and, if other than by a Board



23









 







Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;




     (16) if applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set forth in Section 204
and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 305 in which any such Global Security may be exchanged in whole or in
part for Securities registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the Depositary for such Global
Security or a nominee thereof;




     (17) 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 502;




     (18) any addition to or change in the covenants set forth in Article Ten which applies
to Securities of the series;




     (19) the terms and conditions of any Guarantee to be endorsed upon the Securities in
addition to or in lieu of the form of Guarantee attached hereto as Annex A; and




     (20) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(5)).



          All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto.




          With respect to any particular series of Securities issued and outstanding hereunder, the
Company may, from time to time, subject to compliance with any other applicable provisions of this
Indenture, without the consent of the Holders, create and issue additional Securities within such
series (“Add On Securities”) having terms and conditions identical to those of the other
outstanding Securities in such series, except that Add On Securities (i) may have a different issue
date from other outstanding Securities; (ii) may have a different principal amount than that of
other outstanding Securities; (iii) may have terms specified in the relevant Board Resolution or
supplemental indenture making appropriate adjustment to Articles Two and Three of this Indenture
(and related definitions) applicable to such Add On Securities in order to conform to and ensure
compliance with the Securities Act (or other applicable securities laws) and any registration
rights or similar agreement applicable to such Add On Securities, which are not adverse in any
material respect to the Holders of any other outstanding Securities; and (iv) may be entitled to
additional or special interest as provided in Section 309 not applicable to other outstanding
Securities and may not be entitled to such additional or special interest applicable to other
outstanding Securities.




24









 








          If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series.




          SECTION 302. Denominations.




          Unless otherwise specified pursuant to Section 301(16), the Securities of each series shall be
issuable in registered form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.




          SECTION 303. Execution, Authentication, Delivery and Dating.




          The Debt Securities shall be executed on behalf of the Company, and the Guarantees endorsed
thereon shall be executed on behalf of the Guarantor, by their respective Chairman of the Board,
Vice Chairman of the Board, President or one of their Vice Presidents. The signature of any of
these officers on the Debt Securities and/or the Guarantees may be manual or facsimile.




          Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company and the Guarantor, as the case may be, shall bind the Company and
the Guarantor, notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.




          At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Debt Securities of any series executed by the Company, together with the
Guarantees endorsed thereon executed by the Guarantor, to the Trustee for authentication, together
with a Request for the authentication and delivery of such Securities, and the Trustee in
accordance with the Request shall authenticate and deliver such Securities. If the form or terms
of the Securities of the series and Guarantees have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,





     (1) if the form of such Securities has been established by or pursuant to Board
Resolution as permitted by Section 201, that such form has been established in conformity
with the provisions of this Indenture;




     (2) if the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 301, that such terms have been established in conformity
with the provisions of this Indenture; and



25









 






     (3) that such Securities, when authenticated and delivered by the Trustee and issued by
the Company (with respect to the Debt Securities) and by the Guarantor (with respect to the
Guarantee) in the manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company and the Guarantor,
respectively, enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.


If such form or terms have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.




          Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Request and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.




          Each Security shall be dated the date of its authentication.




          No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for
all purposes of this Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture or any related
Guarantee.




          SECTION 304. Temporary Securities.




          Pending the preparation of definitive Securities of any series, the Company and the Guarantor
may execute, and upon Request the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.




          If temporary Securities of any series are issued, the Company and the Guarantor will cause
definitive Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities

26









 








of such series, the temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series, the Company and
the Guarantor shall execute and the Trustee shall authenticate and deliver in exchange therefor one
or more definitive Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.




          SECTION 305. Registration, Registration of Transfer and Exchange.




          The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided.




          Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company and the Guarantor, as
applicable, shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount.




          At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company and the Guarantor, as applicable, shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.




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




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




          No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed




27









 







in connection with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.




          If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, neither the Company nor the Guarantor shall be required (A) to issue, register the transfer
of or exchange any Securities of that series (or of that series and specified tenor, as the case
may be) during a period beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.




          The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:





     (1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this Indenture.




     (2) Notwithstanding any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company and the Guarantor that it is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default
with respect to such Global Security or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 301.




     (3) Subject to Clause (2) above, any exchange of a Global Security for other Securities
may be made in whole or in part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the Depositary for such Global
Security shall direct. In connection with the exchange of an entire Global Security for
definitive Securities pursuant to Clause (2), such Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company and the Guarantor shall
execute, and the Trustee shall authenticate and deliver to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of definitive Securities of authorized denominations. In
addition, if any event specified in Clause (2)(B) shall have occurred and be continuing with
respect to any Global Security, an owner of a beneficial interest in such Global Security
shall have the right to, through the registered Holder of such Global Security, instruct the
Trustee to issue one or more definitive Securities in the amount specified by such owner
(which amount shall not exceed the amount of beneficial interest held by such owner) and to
debit an equivalent amount of beneficial interest in such



28









 







Global Security. Upon receipt of any such instruction, the Trustee shall (i) direct
the Company and the Guarantor to execute such definitive Securities, (ii) authenticate and
deliver such definitive Securities to such owner, and (iii) debit an equivalent amount of
beneficial interest in such Global Security (subject to the rules and procedures of the
Depositary); provided, however, that if the definitive Securities are not issued to any such
beneficial owner promptly after the Trustee has received the foregoing instructions, the
Company and the Guarantor expressly acknowledge, with respect to the right of any Holder to
pursue a remedy pursuant to Section 507 or 508 hereof, the right of any beneficial owner to
pursue such remedy with respect to the portion of the Global Security that represents such
owner’s beneficial interest as if such definitive Securities had been issued.




     (4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to
this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such Global Security or a
nominee thereof.



          SECTION 306. Additional Provisions Related to Transfer and Exchange of Restricted
Securities.





     (1) If the owner of a beneficial interest in a Rule 144A Global Security that is a
Restricted Security wishes to transfer such interest (or a portion thereof) to a Non-U.S.
Person pursuant to Regulations S, then upon receipt by the Trustee of (i) instructions from
the Holder of the Rule 144A Global Security directing the Trustee to credit or cause to be
credited a beneficial interest in the Regulation S Global Security equal to the principal
amount of the beneficial interest in the Rule 144A Global Security to be transferred and
(ii) a certificate from the transferor in the form of Exhibit A, the Trustee shall, subject
to the rules and procedures of the Depositary, instruct the Depositary to increase the
Regulation S Global Security and decrease the Rule 144A Global Security by the amount so
transferred.




     (2) If the owner of a beneficial interest in a Regulation S Global Security that is a
Restricted Security wishes to transfer such interest (or a portion thereof) to a QIB
pursuant to Rule 144A, then upon receipt by the Trustee of (i) instructions from the Holder
of the Regulation S Global Security directing the Trustee to credit or cause to be credited
a beneficial interest in the Rule 144A Global Security equal to the principal amount of the
beneficial interest in the Regular S Global Note to be transferred and (ii) a certificate
from the transferor in the form of Exhibit B, the Trustee shall, subject to the rules and
procedures of the Depositary, instruct the Depositary to increase the Rule 144A Global
Security and decrease the Regulation S Global Security by the amount so transferred.




     (3) Any transfer of Restricted Securities not described above (other than transfers of
beneficial interests within the same Global Security, which must be effected in accordance
with applicable law and the rules and procedures of the Depositary) shall be made only upon
receipt by the Trustee of such opinions of counsel, certificates and/or



29









 







other information reasonably required by and satisfactory to it in order to ensure
compliance with the Securities Act or in accordance with subsection (d) below.




     (4) Upon the transfer, exchange or replacement of any Security (or a beneficial
interest in a Global Security) bearing a Private Placement Legend, the Trustee shall deliver
only a Security (or a beneficial interest in a Global Security) that bears a Private
Placement Legend unless:




     (i) such Security (or beneficial interest) is exchanged in a Registered
Exchange Offer;




     (ii) such Security (or beneficial interest) is transferred pursuant to an
effective registration statement;




     (iii) such Security (or beneficial interest) is transferred pursuant to Rule
144 upon delivery to the Trustee of a certificate from the transferor in the form of
Exhibit C and an opinion of counsel reasonably satisfactory to the Trustee;




     (iv) such Security (or beneficial interest) is transferred, replaced or
exchanged after the Restriction Termination Date therefor; or




     (v) in connection with such transfer, exchange or replacement, the Trustee
shall have received an opinion of counsel and other evidence reasonably satisfactory
to it to the effect that neither such Private Placement Legend nor the related
restrictions on transfer are required in order to maintain compliance with the
Securities Act.



          SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.




          If any mutilated Security is surrendered to the Trustee, the Company and the Guarantor, as
applicable, shall execute and the Trustee shall authenticate and deliver 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 and the Guarantor, as applicable, shall execute and the Trustee shall
authenticate and deliver, 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.




          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.




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          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 and the Guarantor, as applicable, 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 308. Payment of Interest; Interest Rights Preserved.




          Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.




          Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:





     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, which shall not be earlier
than 20 days after the Trustee receives such notice, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest and the



31









 







Special Record Date therefor to be given to each Holder of Securities of such series in
the manner set forth in Section 106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).




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



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




          SECTION 309. Additional or Special Interest Under Registration Rights Agreements.




          Under certain circumstances, the Company may be obligated to pay additional or special
interest as liquidated damages to Holders of Outstanding Securities of any series, all as and to
the extent set forth in the Registration Rights Agreement (if any) applicable to such series. In
any such event, such additional or special interest the Company may be obligated to pay as
liquidated damages will be deemed to be interest for purposes of this Indenture.




          The Trustee shall have no duty or responsibility for determining if any additional or special
interest or liquidated damages are payable with respect to Securities of any series or, if any such
additional or special interest or liquidated damages are payable thereon, when such additional or
special interest or liquidated damages are payable and the amount thereof. The Company shall
notify the Trustee and Paying Agent in writing at least five days prior to each Interest Payment
Date with respect to Securities of such series whether additional or special interest or liquidated
damages are payable and, to the extent such additional or special interest or liquidated damages
are payable, shall certify in such notice the date such additional or special interest or
liquidated damages commenced to accrue, the applicable per annum interest rate or rates applicable
thereto and the periods such additional or special interest or liquidated damages accrued at each
such rate and the aggregate amount of such additional or special interest or liquidated damages
payable on such Interest Payment Date.




          SECTION 310. Persons Deemed Owners.




          Prior to due presentment of a Security for registration of transfer, the Company, the
Guarantor, the Trustee and any agent thereof may treat the Person in whose name such Security is
registered as the owner of

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such Security for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Guarantor, the Trustee or any
agent thereof shall be affected by notice to the contrary.




          SECTION 311. Cancellation.




          All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company and/or the
Guarantor may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which either of them may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder that have not been issued or sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of as directed by a Request, subject to applicable law.




          SECTION 312. Computation of Interest.




          Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.




          SECTION 313. Execution of Guarantee.




          To evidence the Guarantee to the Holders specified in this Indenture, the Guarantor hereby
agrees to execute the Guarantees, in substantially the form attached hereto as Annex A or
in any other form specified in accordance with Section 301 hereof, to be endorsed on each Security
authenticated and delivered by the Trustee (or any Authenticating Agent). Each such Guarantee
shall be signed on behalf of the Guarantor as set forth in Section 303 to the authentication of the
Security on which it is endorsed and the delivery of such Security by the Trustee (or any
Authenticating Agent), after the authentication thereof hereunder, shall constitute due delivery of
such Guarantee on behalf of the Guarantor.




          SECTION 314. Assumption by Guarantor.




          The Guarantor may, without the consent of the Trustee or the Holders, assume all of the rights
and obligations of the Company hereunder with respect to a series of Securities and under the
Securities of such series if, after giving effect to such assumption, no Default or Event of
Default shall have occurred and be continuing. Upon such an assumption, the Guarantor shall
execute a supplemental indenture evidencing its assumption of all such rights and obligations of
the Company and the Company shall be released from its liabilities hereunder and under such
Securities as obligor on the Securities of such series.




          The Guarantor shall assume all of the rights and obligations of the Company hereunder with
respect to a series of Securities and under the

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Securities of such series if, upon a default by the Company in the due and punctual payment of
the principal, sinking fund payment, if any, premium, if any, or interest on such Securities, the
Guarantor is prevented by any court order or judicial proceeding from fulfilling its obligations
under the Guarantee with respect to such series of Securities. Such assumption shall result in the
Securities of such series becoming the direct obligations of the Guarantor and shall be effected
without the consent of the holders of the Securities of any series or the Trustee. Upon such an
assumption, the Guarantor shall execute a supplemental indenture evidencing its assumption of all
such rights and obligations of the Company, and the Company shall be released from its liabilities
hereunder and under such Securities as obligor on the Securities of such series.




ARTICLE FOUR




Satisfaction and Discharge




          SECTION 401. Satisfaction and Discharge of Indenture.




          This Indenture shall upon Request cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly provided for), and
the Trustee, at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when




          (1) either





     (A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or




     (B) all such Securities not theretofore delivered to the Trustee for
cancellation




     (i) have become due and payable, or




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




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


and the Company and/or the Guarantor, as the case may be, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose
money in an amount sufficient to pay and discharge the entire Indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and any premium and interest
to the date of such deposit (in the case of Securities which have




34









 







become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;





     (2) the Company and/or the Guarantor has paid or caused to be paid all other sums
payable hereunder by them; and




     (3) the Company and/or the Guarantor 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 and the Guarantor to the Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.




          SECTION 402. Application of Trust Money.




          Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 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 (including the Company or the Guarantor acting as Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.




ARTICLE FIVE




Remedies




          SECTION 501. Events of Default.




          “Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):





     (1) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or




     (2) default in the payment of the principal of or any premium on any Security of that
series at its Maturity; or




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




     (4) default in the performance, or breach, of any covenant or warranty of the Company
or the Guarantor in this Indenture or, with respect to the Guarantor, in the Guarantee
(other than a covenant or



35









 







warranty a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance of such default
or breach for a period of 60 days after there has been given, by registered or certified
mail, to the Company or the Guarantor, as the case may be, by the Trustee or to the Company
or the Guarantor, as the case may be, and the Trustee by the Holders of at least 25% 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;




     (5) a default under any bond, debenture, note or other evidence of Indebtedness for
money borrowed by the Company, the Guarantor or any Consolidated Subsidiary (including a
default with respect to Securities of any series other than that series) having an aggregate
principal amount outstanding of at least $1,000,000,000, or under any mortgage, indenture or
instrument (including this Indenture or any Guarantee) under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company,
the Guarantor or any Consolidated Subsidiary having an aggregate principal amount
outstanding of at least $1,000,000,000, whether such Indebtedness now exists or shall
hereafter be created, which default (A) shall constitute a failure to pay any portion of the
principal of such Indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto or (B) shall have resulted in such Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise have become
due and payable, without, in the case of Clause (A), such Indebtedness having been
discharged or without, in the case of Clause (B), such Indebtedness having been discharged
or such acceleration having been rescinded or annulled, in each such case within a period of
15 days after there shall have been given, by registered or certified mail, to the Company
and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Company or the Guarantor, as the
case may be, to cause such Indebtedness to be discharged or cause such acceleration to be
rescinded or annulled, as the case may be, and stating that such notice is a “Notice of
Default” hereunder; or




     (6) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or the Guarantor in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor under any
applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or the Guarantor or of any
substantial part of their respective property, or ordering the winding up or liquidation of
their respective affairs, and the continuance of any such decree or order for relief or any
such other decree or order undismissed or unstayed and in effect for a period of 60
consecutive days; or



36









 






     (7) the commencement by the Company or the Guarantor of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by either of them to the entry of a decree or order for relief in respect of the
Company or the Guarantor in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against either of them, or the filing by
either of them of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by either of them to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or the Guarantor or
of any substantial part of their respective property, or the making by either of them of an
assignment for the benefit of creditors, or the admission by either of them in writing of
the inability to pay their respective debts generally as they become due, or the taking of
corporate action by the Company or the Guarantor in furtherance of any such action; or




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



          SECTION 502. Acceleration of Maturity; Rescission and Annulment.




          If an Event of Default (other than an Event of Default specified in Section 501(6) or 501(7))
with respect to Securities of any series at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the terms thereof) to be
due and payable immediately, by a notice in writing to the Company and the Guarantor (and to the
Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount), together with all accrued and unpaid interest, shall become immediately due and payable.
If an Event of Default specified in Section 501(6) or 501(7) with respect to Securities of any
series at the time Outstanding occurs, the principal amount of all the Securities of that series
(or, if any Securities of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof), together with all
accrued and unpaid interest, shall automatically, and without any declaration or other action on
the part of the Trustee or any Holder, become immediately due and payable.




          At any time after such a declaration of acceleration with respect to Securities of 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, the Guarantor and the
Trustee, may rescind and annul such declaration and its consequences if




37









 









     (1) the Company or the Guarantor has paid or deposited with the Trustee a sum
sufficient to pay




     (A) all overdue interest on all Securities of that series,




     (B) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,




     (C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and




     (D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and




     (2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 513.


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




          SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.




          The Company and the Guarantor, jointly and severally, covenant that if





     (1) 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




     (2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,


the Company or the Guarantor 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 any premium and interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on 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 an Event of Default with respect to 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

38









 








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 504. Trustee May File Proofs of Claim.




          In case of any judicial proceeding relative to the Company or the Guarantor (or any other
obligor upon the Securities), their respective property or creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized 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 607.




          No provision of this Indenture 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;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other
similar committee.




          SECTION 505. 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 506. 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 any premium 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:




39









 









     FIRST: To the payment of all amounts due the Trustee under Section 607; and




     SECOND: To the payment of the amounts then due and unpaid for principal of and any
premium 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 any premium and interest,
respectively.



          SECTION 507. 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





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




     (2) the Holders of not less than 25% 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;




     (3) 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;




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




     (5) 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;


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 of such Holders.




          SECTION 508. Unconditional Right of Holders to Receive Principal, Premium 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 any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption

40









 








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 509. 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 Guarantor, 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 510. Rights and Remedies Cumulative.




          Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, 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 prevent the concurrent assertion or employment of any other
appropriate right or remedy.




          SECTION 511. 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 512. 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





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




     (2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



          SECTION 513. 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

41









 








the Securities of such series waive any past default hereunder with respect to such series and
its consequences, except a default





     (1) in the payment of the principal of or any premium or interest on any Security of
such series, or




     (2) in respect of a covenant or provision hereof which under Article Nine 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 514. Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an assessment in any
suit instituted by the Trustee, the Company or the Guarantor.




          SECTION 515. Waiver of Usury, Stay or Extension Laws.




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




ARTICLE SIX




The Trustee




          SECTION 601. Certain Duties and Responsibilities.




          The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, 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 or liability is not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the

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liability of or affording protection to the Trustee shall be subject to the provisions of this
Section.




          SECTION 602. Notice of Defaults.




          If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.




          SECTION 603. Certain Rights of Trustee.




          Subject to the provisions of Section 601:





     (1) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other
paper or document believed by it to be genuine and to have been signed or presented by the
proper party or parties;




     (2) any request or direction of the Company or the Guarantor mentioned herein shall be
sufficiently evidenced by a Request, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;




     (3) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon one or more Officers’ Certificates;




     (4) the Trustee may consult with counsel and the written 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 in good faith and in reliance thereon;




     (5) 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 pursuant to
this Indenture, 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;




     (6) 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, and, if the Trustee shall
determine to make such further inquiry or




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investigation, it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney, so long as such Trustee, agent or attorney
agrees to reasonable confidentiality provisions not inconsistent with the Trustee’s duties
hereunder;




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




     (8) before the Trustee acts or refrains from acting, it may require an Officers’
Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion;




     (9) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action;




     (10) The Trustee shall not be liable for interest on any money received by it, except
as the Trustee may agree with the Company and the Guarantor. Money held in trust by the
Trustee need not be segregated from other funds, except to the extent required by law;




     (11) The Trustee shall not be deemed to have notice of any Default or Event of Default
unless a trust officer 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 and this Indenture; and




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



          SECTION 604. Not Responsible for Recitals or Issuance of Securities.




          The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company and the Guarantor, as the case may
be, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company or the Guarantor of Securities or the
proceeds thereof.




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          SECTION 605. May Hold Securities.




          The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or the Guarantor, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the
Company and the Guarantor with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.




          SECTION 606. Money Held in Trust.




          Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company or the Guarantor.




          SECTION 607. Compensation and Reimbursement.




          The Company, and if the Company fails to do so, the Guarantor, agrees:





     (1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence, bad faith or
willful misconduct; and




     (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence, bad faith or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties
hereunder.



          As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a claim prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of (and premium, if
any) or interest on particular Securities.




          The provisions of this Section 607 shall survive the resignation or removal of the Trustee and
the termination of this Indenture.




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          SECTION 608. Conflicting Interests.




          If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one
series.




          SECTION 609. Corporate Trustee Required; Eligibility.




          There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $100,000,000 and has an office in New
York, New York. If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article.




          SECTION 610. Resignation and Removal; Appointment of Successor.




          No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.




          The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company and the Guarantor. If the instrument of acceptance by
a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.




          The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.




          If at any time:





     (1) the Trustee shall fail to comply with Section 608 after written request therefor by
the Company, the Guarantor or by any Holder who has been a bona fide Holder of a Security
for at least six months, or



46









 






     (2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company, the Guarantor or by any such Holder, or




     (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,


then, in any such case, (A) the Company or the Guarantor, as the case may be, by a Board Resolution
may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder
who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.




          If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company or the Guarantor, as the case may be, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Company, the Guarantor and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with
the applicable requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee appointed by the
Company or the Guarantor. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company, the Guarantor or the Holders and accepted appointment
in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.




          The Company and the Guarantor shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any series to all Holders of Securities of such series in the
manner provided in Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust Office.




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          SECTION 611. Acceptance of Appointment by Successor.




          In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company,
the Guarantor and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the Company, the
Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.




          In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the Guarantor, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall continue to be vested
in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor Trustee relates; but,
on request of the Company, the Guarantor or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.




          Upon request of any such successor Trustee, the Company and the Guarantor shall execute any
and all instruments for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph,
as the case may be.




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          No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.




          SECTION 612. Merger, Conversion, Consolidation or Succession to Business.




          Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.




          SECTION 613. Preferential Collection of Claims Against Company.




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




          SECTION 614. Appointment of Authenticating Agent.




          The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and the Guarantor and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $100,000,000 and subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of
this Section, such




49









 




Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.




          Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.




          An Authenticating Agent may resign at any time by giving written notice thereof to the
Trustee, the Company and the Guarantor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating Agent, the Company and
the Guarantor. Upon receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and the Guarantor and shall give notice of such appointment in the manner provided
in Section 106 to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.




          The Company and the Guarantor, jointly and severally, but without duplication, agree to pay to
each Authenticating Agent from time to time reasonable compensation for its services under this
Section.




          If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:




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




	 	 	 	 	 
	 	 	The Bank of New York Trust Company, N.A.,

as Trustee
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	As Authenticating Agent
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	As Authenticating Agent






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ARTICLE SEVEN




Holders’ Lists and Reports by Trustee and Company




          SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.




          The Company will furnish or cause to be furnished to the Trustee





     (1) semi-annually, not later than June 1 and December 1 in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the Holders of
Securities of each series as of the preceding Interest Payment Date for such series, and




     (2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;


excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.




          SECTION 702. Preservation of Information; Communications to Holders.




          The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.




          The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.




          Every Holder of Securities, by receiving and holding the same, agrees with the Company, the
Guarantor and the Trustee that none of the Company, the Guarantor or the Trustee or any agent of
any of them shall be held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.




          SECTION 703. Reports by Trustee.




          The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.




          Reports so required to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than July 15 in each calendar year, commencing in 2007.




          A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange




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upon which any Securities are listed, with the Commission, the Company and the Guarantor. The
Company will notify the Trustee when any Securities are listed on any stock exchange.




          SECTION 704. Reports by Company and Guarantor.




          The Company and the Guarantor shall each file with the Trustee, within 15 days after the
Company or the Guarantor files the same with the Commission, copies of the annual reports and of
the information, documents, and other reports (or copies of such portions of any of the foregoing
as the Commission may be rules and regulations prescribe) which the Company or the Guarantor, as
the case may be, is required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act. The Company and the Guarantor shall also comply with the other applicable
provisions of Section 314(a) of the Trust Indenture Act. Notwithstanding any provision of this
Indenture to the contrary, the Company and the Guarantor will not be deemed to have failed to
comply with any of their obligations hereunder for purposes of clause (4) of Section 501 until 90
days after any report referred to in this Section 704 is due.




ARTICLE EIGHT




Consolidation, Merger, Conveyance, Transfer or Lease




          SECTION 801. Company and Guarantor May Consolidate, Etc., Only on Certain Terms.




          Neither the Company nor the Guarantor shall consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety to any Person, nor
shall the Company or the Guarantor permit any Person to consolidate with or merge into either of
them or convey, transfer or lease its properties and assets substantially as an entirety to either
of them, unless:





     (1) in case the Company or the Guarantor shall consolidate with or merge into another
Person or convey, transfer or lease their respective properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which the Company
or the Guarantor, as the case may be, is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company or the Guarantor, as
the case may be, substantially as an entirety shall be a corporation, partnership, limited
liability company, trust or similar entity organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the performance and
observance of every covenant and obligation of the Company under this Indenture, and, in the
case of the Guarantor, the due and punctual performance of the Guarantees and the
performance and observance of every covenant and obligation of the Guarantor under this
Indenture and the Guarantees; and




     (2) in case the Company or the Guarantor shall permit any Person to consolidate with or
merge into either of them or convey, transfer or



52









 






lease its properties and assets substantially as an entirety to either of them,
immediately after giving effect to such transaction and treating any Indebtedness which
becomes an obligation of the Company, the Guarantor or any Consolidated Subsidiary as a
result of such transaction as having been incurred by the Company, the Guarantor or such
Consolidated Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing.



          SECTION 802. Successor Substituted.




          Upon any consolidation of the Company or the Guarantor with, or merger of the Company or the
Guarantor into, any other Person or any conveyance, transfer or lease of the properties and assets
of the Company or the Guarantor substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company or the Guarantor is merged
or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or the Guarantor, as the case may be, under
this Indenture with the same effect as if such successor Person had been named as the Company or
the Guarantor herein, and thereafter, except in the case of a lease, the predecessor Person shall
be relieved of all obligations and covenants under this Indenture and the Securities.




ARTICLE NINE




Supplemental Indentures




          SECTION 901. Supplemental Indentures Without Consent of Holders.




          Without the consent of any Holders, the Company or the Guarantor, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:





     (1) to evidence the succession of another Person to the Company and/or the Guarantor
and the assumption by any such successor of the covenants of the Company and/or the
Guarantor herein and in the Securities in accordance with the provisions of Section 801; or




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




     (3) to add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such additional Events of Default are to be for the benefit
of less than all series of Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or




     (4) to add to or change any of the provisions of this Indenture to such extent as shall
be necessary to permit or facilitate the



53









 






issuance of Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or




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




     (6) [intentionally omitted]; or




     (7) to establish the form or terms of Securities of any series as permitted by Sections
201 and 301; or




     (8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 611; or




     (9) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided that such action
pursuant to this Clause (9) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.



          SECTION 902. Supplemental Indentures With Consent of Holders.




          With the consent of the Holders of not less than 51% in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of said Holders delivered
to the Company, the Guarantor and the Trustee, the Company and the Guarantor, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities
of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,





     (1) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to institute suit for



54









 






the enforcement of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or




     (2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture, or




     (3) modify any of the provisions of this Section, Section 513 or Section 1005, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the references to
“the Trustee” and concomitant changes in this Section and Section 1005, or the deletion of
this proviso, in accordance with the requirements of Sections 611 and 901(8).



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




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




          SECTION 903. Execution of Supplemental Indentures.




          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 601) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel each stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.




          SECTION 904. Effect of Supplemental Indentures.




          Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.




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          SECTION 905. Conformity with Trust Indenture Act.




          Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.




          SECTION 906. Reference in Securities to Supplemental Indentures.




          Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company and the Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Company and the Guarantor, to any such supplemental
indenture may be prepared and executed by the Company and the Guarantor and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.




ARTICLE TEN




Covenants




          SECTION 1001. Payment of Principal, Premium and Interest.




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




          SECTION 1002. Maintenance of Office or Agency.




          The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that 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 that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, 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 other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment 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 location of any such other office or agency.




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          SECTION 1003. Money for Securities Payments to Be Held in Trust.




          If the Company or the Guarantor shall at any time act as Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of or any premium or
interest on any of the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to act.




          Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.




          The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company or the Guarantor (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the Securities of that
series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities of that series.




          The Company or the Guarantor may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Request direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company, the Guarantor or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company, the Guarantor or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further liability with respect to such
money.




          Any money deposited with the Trustee or any Paying Agent, or then held by the Company or the
Guarantor, in trust for the payment of the principal of or any premium or interest on any Security
of any series and remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company or the Guarantor, as the case may be, on
Request, or (if then held by the Company or the Guarantor) shall be discharged from such trust; and
the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the
Company or the Guarantor for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company or the Guarantor (as the case
may be) as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment, may at the expense
of the Company or the Guarantor cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation in New York, New
York, notice that




57









 




such money remains unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company or the Guarantor (as the case may be).




          SECTION 1004. Statement by Officers as to Default.




          The Company and the Guarantor will each deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company or the Guarantor (as the case may be) ending after the date
hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers
thereof the Company or the Guarantor (as the case may be) is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture or the Guarantees (with
respect to the Guarantees) (without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company or the Guarantor (as the case may be) shall be in default,
specifying all such defaults and the nature and status thereof of which they may have knowledge.




          SECTION 1005. Waiver of Certain Covenants.




          Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such series, if before the time for
such compliance the Holders of at least 51% in principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and effect.




ARTICLE ELEVEN




Redemption of Securities




          SECTION 1101. Applicability of Article.




          Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article.




          SECTION 1102. Election to Redeem; Notice to Trustee.




          The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the




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Trustee of such Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers’ Certificate evidencing compliance with such restriction.




          SECTION 1103. Selection by Trustee of Securities to Be Redeemed.




          If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair and appropriate,
provided that the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized denomination) for such
Security. If less than all the Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified tenor not previously called for redemption
in accordance with the preceding sentence.




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




          The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.




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




          SECTION 1104. Notice of Redemption.




          Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.




          All notices of redemption shall state:




          (1) the Redemption Date,




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     (2) the Redemption Price,




     (3) if less than all the Outstanding Securities of any series consisting of more than a
single Security are to be redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series consisting of a
single Security are to be redeemed, the principal amount of the particular Security to be
redeemed,




     (4) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,




     (5) the place or places where each such Security is to be surrendered for payment of
the Redemption Price, and




     (6) that the redemption is for a sinking fund, if such is the case.



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




          SECTION 1105. Deposit of Redemption Price.




          Prior to any Redemption Date, the Company or the Guarantor shall deposit with the Trustee or
with a Paying Agent (or, if the Company or the Guarantor is acting as Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest
on, all the Securities which are to be redeemed on that date.




          SECTION 1106. Securities Payable on Redemption Date.




          Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
or the Guarantor at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.




          If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until




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paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.




          SECTION 1107. Securities Redeemed in Part.




          Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company, the Guarantor or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the Guarantor and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company
and the Guarantor shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the Security so
surrendered.




ARTICLE TWELVE




Sinking Funds




          SECTION 1201. Applicability of Article.




          The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series for which a sinking fund is provided except as otherwise specified as
contemplated by Section 301 for such Securities.




          The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an “optional sinking
fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such Securities.




          SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.




          The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities; provided that
the Securities to be so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.




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          SECTION 1203. Redemption of Securities for Sinking Fund.




          Not less than 60 days prior to each sinking fund payment date as specified in the terms of a
series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying
the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of
such Securities, 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 Securities pursuant
to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Prior to
each such sinking fund payment date as specified in the terms of a series of Securities, the
Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 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 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.




ARTICLE THIRTEEN




Defeasance and Covenant Defeasance




          SECTION 1301. Company’s Option to Effect Defeasance or Covenant Defeasance.




          The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied
to any Securities or any series of Securities, as the case may be, not designated pursuant to
Section 301 as being indefeasible pursuant to such Section 1302 or 1303, in accordance with any
applicable requirements provided pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 301 for such Securities.




          SECTION 1302. Defeasance and Discharge.




          Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company and the Guarantor shall be
deemed to have been discharged from their respective obligations with respect to such Securities as
provided in this Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the
Company and the Guarantor shall be deemed to have paid and discharged the entire Indebtedness
represented by such Securities and to have satisfied all their respective other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company or the Guarantor, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities when payments are due, (2) the
Company’s and Guarantor’s respective obligations with respect to such Securities under Sections
304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company’s and the Guarantor’s




62









 




obligations in connection therewith and (4) this Article. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied
to such Securities.




          SECTION 1303. Covenant Defeasance.




          Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company and the Guarantor shall
be released from their respective obligations under Section 801(3) and any covenants provided
pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities and
(2) the occurrence of any event specified in Sections 501(4) (with respect to any of Section 801(3)
and any such covenants provided pursuant to Section 301(18), 901(2) or 901(7)), 501(5) and 501(8)
shall be deemed not to be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set forth in Section
1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company and the Guarantor may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth
in any such specified Section (to the extent so specified in the case of Section 501(4)), whether
directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason
of any reference in any such Section to any other provision herein or in any other document, but
the remainder of this Indenture and such Securities shall be unaffected thereby.




          SECTION 1304. Conditions to Defeasance or Covenant Defeasance.




          The following shall be the conditions to the application of Section 1302 or Section 1303 to
any Securities or any series of Securities, as the case may be:





     (1) The Company or the Guarantor shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the requirements contemplated
by Section 609 and agrees to comply with the provisions of this Article applicable to it) as
trust funds in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case 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, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and
any premium and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used herein, “U.S.
Government Obligation” means (x) any security which is (i) a direct obligation of the United
States of America for the payment of which the full faith and credit of the United States of
America is pledged or (ii)



63









 






an obligation 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, which, in
either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or interest on
any U.S. Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.




     (2) In the event of an election to have Section 1302 apply to any Securities or any
series of Securities, as the case may be, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit, Defeasance and discharge were
not to occur.




     (3) In the event of an election to have Section 1303 apply to any Securities or any
series of Securities, as the case may be, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance
to be effected with respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur.




     (4) The Company shall have delivered to the Trustee an Officer’s Certificate to the
effect that neither such Securities nor any other Securities of the same series, if then
listed on any securities exchange, will be delisted as a result of such deposit.




     (5) No event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have occurred and
be continuing at the time of such deposit or, with regard to any such event specified in
Sections 501(6) or (7), at any time on or prior to the 90th day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until
after such 90th day).




     (6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust



64









 






Indenture Act (assuming all Securities are in default within the meaning of such Act).




     (7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which the Company or
the Guarantor is a party or by which it is bound.




     (8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the Investment Company
Act unless such trust shall be registered under such Act or exempt from registration
thereunder.




     (9) The Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to such
Defeasance or Covenant Defeasance have been complied with.



          SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.




          Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities
shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company or Guarantor acting as Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in respect of principal and
any premium and interest, but money so held in trust need not be segregated from other funds except
to the extent required by law.




          The Company or the Guarantor, as the case may be, shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.




          Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company or the Guarantor from time to time upon Request any money or U.S. Government
Obligations held by it as provided in Section 1304 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may
be, with respect to such Securities.




          SECTION 1306. Reinstatement.




          If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining,




65









 




restraining or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company and the Guarantor have been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article; provided, however, that if the
Company or the Guarantor makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of obligations, the Company and/or the Guarantor shall be
subrogated to the rights (if any) of the Holders of such Securities to receive such payment from
the money so held in trust.




          This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.




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




	 	 	 	 	 
	 	XTRA FINANCE CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	Marc D. Hamburg 	 
	 	 	Title:  	Vice President 	 
	 
	 	BERKSHIRE HATHAWAY INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Marc D. Hamburg 	 
	 	 	Title:  	Vice President and

Chief Financial Officer 	 
	 
	 	THE BANK OF NEW YORK TRUST COMPANY, N.A.,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	Sharon K. McGrath 	 
	 	 	Title:  	Vice President 	 
	 




66









 





Annex A




FORM OF GUARANTEE

BERKSHIRE HATHAWAY INC.




          FOR VALUE RECEIVED, Berkshire Hathaway Inc., a Delaware corporation (the “Guarantor”), hereby
absolutely, unconditionally and irrevocably guarantees to the holders (the “Holders”) of any
security authenticated and delivered (each a “Security”) by The Bank of New York Trust Company,
N.A., as trustee (the “Trustee”) under that certain Indenture, dated as of March 20, 2007 (the
“Indenture”), among the Trustee, the Guarantor and XTRA Finance Corporation, a Delaware corporation
(“Issuer”), the full and prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of all present and future payment obligations of the Issuer pursuant to the terms of
such Security and/or the Indenture, whether direct or indirect, absolute or contingent, and whether
for principal, interest, fees, expenses, indemnification or otherwise (collectively, the
“Obligations”). Nothing herein shall be deemed to guarantee any obligation of the Issuer other
than the Obligations. Nothing herein shall be deemed to guarantee any obligation of any person or
entity other than the Issuer.




          The Guarantor’s obligations hereunder shall be unconditional and absolute, and shall not be
released, discharged or otherwise affected by (i) the existence, validity, enforceability,
perfection or extent of any collateral therefor, (ii) any lack of validity or enforceability of any
provision of the Security or the Indenture, (iii) any liquidation, bankruptcy, insolvency,
reorganization or other similar proceeding affecting the Issuer or its assets, or (iv) any other
circumstance relating to the Obligations that might otherwise constitute a legal or equitable
discharge of, or defense to, the Guarantor. The Guarantor agrees that the Holders and/or the
Trustee may resort to the Guarantor, as primary obligor and not merely as surety, for payment of
any of the Obligations whether or not the Holders or the Trustee shall have proceeded against the
Issuer or any other obligor principally or secondarily obligated with respect to any of the
Obligations. Neither the Holders nor the Trustee shall be obligated to file any claim relating to
any of the Obligations in the event that the Issuer becomes subject to a bankruptcy, reorganization
or similar proceeding, and the failure of the Holders or the Trustee to so file shall not affect
the Guarantor’s obligations hereunder. In the event that any payment to the Holders by the Issuer
in respect of any Obligations is rescinded or must otherwise be returned for any reason whatsoever,
the Guarantor shall remain liable hereunder with respect to such Obligations as if such payment had
not been made.




          The Guarantor agrees that, subject to the Indenture, the Holders and/or the Trustee may at any
time and from time to time, either before or after the maturity thereof, without notice to or
further consent of the Guarantor, extend the time of payment of, exchange or surrender any
collateral for, or renew any of the Obligations, and may also make any agreement with the Issuer or
with any other party to or person liable on any of the Obligations or interested therein, for the
extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for
any modification of the terms thereof or of any agreement between the Holders, the Trustee and the
Issuer or any such other party or person, and that none of the foregoing shall in any way impair or
affect this Guarantee.




67









 




The Guarantor hereby unconditionally and irrevocably waives, to the fullest extent permitted
by law, (a) notice of the acceptance of this Guarantee and of the Obligations, presentment, demand
for payment, notice of dishonor and protest, (b) any requirement that any Holder exhaust any right
or take any action against the Issuer, and (c) any right to revoke this Guarantee.




          The Guarantor agrees to pay on demand all fees and out-of-pocket expenses incurred by the
Holders or the Trustee in any way relating to the enforcement or protection of the rights of the
Holders and/or the Trustee hereunder.




          Upon payment of any of the Obligations, the Guarantor shall be subrogated to the rights of the
Holders and/or the Trustee against the Issuer with respect to such Obligations, and the Holders and
the Trustee agree to take such steps, at the Guarantor’s expense, as the Guarantor may reasonably
request to implement such subrogation; provided, however, that the Guarantor shall not be entitled
to enforce, or to receive any payments arising out of or based upon, such right of subrogation
during any period in which any amount payable by the Issuer under the Security or the Indenture is
overdue or unpaid.




          No failure on the part of the Holders or the Trustee to exercise, and no delay in exercising,
any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by the Holders or the Trustee of any right, remedy or power hereunder preclude any
other or future exercise of any right, remedy or power. Each and every right, remedy and power
hereby granted to the Holders or the Trustee or allowed any of them by law or other agreement shall
be cumulative and not exclusive of any other, and may be exercised by the Holders or the Trustee at
any time or from time to time.




          The Guarantor hereby represents and warrants that:




          (a) the Guarantor is duly organized, validly existing and in good standing as a corporation
under the laws of the State of Delaware and has full corporate power to execute, deliver and
perform this Guarantee;




          (b) the execution, delivery and performance of this Guarantee have been and remain duly
authorized by all necessary corporate action and do not contravene any provision of the Guarantor’s
certificate of incorporation or by-laws, as amended to date, or any law, regulation, rule, decree,
order, judgment or contractual restriction binding on the Guarantor or its assets;




          (c) all consents, licenses, clearances, authorizations and approvals of, and registrations
and declarations with, any governmental authority or regulatory body necessary for the due
execution, delivery and performance of this Guarantee have been obtained and remain in full force
and effect and all conditions thereof have been duly complied with, and no other action by, and no
notice to or filing with, any governmental authority or regulatory body is required in connection
with the execution, delivery or performance of this Guarantee;




          (d) this Guarantee constitutes a legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium




68









 




and other laws of general applicability relating to or affecting creditors’ rights and to
general equity principles; and




          (e) there are no actions, suits or arbitration proceedings pending or, to the knowledge of
the Guarantor, threatened against it, at law or in equity, which, individually or in the aggregate,
if adversely determined, would materially adversely affect the financial condition of the Guarantor
or materially impair its ability to perform its obligations under this Guarantee.




          The Guarantor may not assign its obligations hereunder to any person (except as permitted by
the Indenture) without the prior written consent of the Holders or the Trustee.




          All payments by the Guarantor to the Holders or the Trustee shall be made in accordance with
the provisions of the Indenture and the Security; provided, however, that payment of any fees or
expenses pursuant to the fourth paragraph hereof shall be made by wire transfer of immediately
available funds to an account at a commercial bank in the United States specified to the Guarantor
at least ten (10) days in advance of any demand for payment by the Holders or the Trustee.




          All notices or demands on the Guarantor shall be deemed effective when received, shall be in
writing and shall be delivered by hand or by registered mail, or by facsimile transmission promptly
confirmed by registered mail, addressed to the Guarantor at:



Berkshire Hathaway Inc.

1440 Kiewit Plaza

Omaha, NE 68131

Attention: Chief Financial Officer

Facsimile: (402) 346-3375



or to such other addresses or facsimile numbers as the Guarantor shall have notified the Holders or
the Trustee in a written notice delivered in accordance with the Indenture.




          This Guarantee shall remain in full force and effect and shall be binding on the Guarantor,
its successors and assigns until all of the Obligations have been satisfied in full.




          This Guarantee shall be governed by, and construed in accordance with, the laws of the State
of New York applicable to contracts made and to be performed solely within such State.




          No amendment or waiver of any provision of this Guarantee shall in any event be effective
unless the same shall be in writing and signed by the Trustee and the Guarantor.




          If for any reason any provision or provisions hereof are determined to be invalid and contrary
to any existing or future law, such invalidity shall not, to the fullest extent permitted by law,
impair the operation of or effect of those portions of this Guarantee that are valid.




69









 





          THE GUARANTOR WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY ACTION, SUIT
OR PROCEEDING ARISING OUT OF OR RELATED IN ANY WAY TO THIS GUARANTEE.




	 	 	 	 	 	 	 
	Dated:

	 	 	 	BERKSHIRE HATHAWAY INC.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Marc D. Hamburg
	 

	 	 	 	Title:
	 	Chief Financial Officer






70









 








Exhibit A




Form of Certificate For Transfer From

Rule 144A Global Security to Regulation S Global Security

(transfers pursuant to Section 306(a) of the Indenture)




[Date]




The Bank of New York Trust

Corporate Trust Dept. – Reorganization Unit

101 Barclay Street, 7E

New York, NY 10286




	 	 	      Re: [Note][Debenture][Zero Coupon] Due                      (the “Securities”) of XTRA
Finance Corporation (the “Company”)





Ladies and Gentlemen:




          Reference is hereby made to the Indenture, dated as of March 20, 2007 (as amended and
supplemented from time to time, the “Indenture”), among the Company, as issuer, Berkshire Hathaway
Inc., as guarantor (the “Guarantor”), and The Bank of New York Trust Company, N.A., as trustee (the
“Trustee”). Capitalized terms used but not defined herein shall have the meanings given them in
the Indenture.




          This letter relates to $                     principal amount of Securities which are held by the
undersigned (the “Transferor”) as a beneficial interest in the Rule 144A Global Security (CUSIP No.
                    ) deposited with [Name of Depositary] (the “Depositary”). The Transferor has
requested a transfer of such beneficial interest for an interest in the Regulation S Global
Security (CUSIP No.                     ) deposited with the Depositary.




          In connection with such request and in respect of such Securities, the Transferor hereby
certifies that such transfer has been effected pursuant to and in accordance with Regulation S and
accordingly further certifies that:





	 	(a)	 	the offer of the Securities was not made to a person in the
United States;
	 
	 	(b)	 	either (i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee was outside the
United States or (ii) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither the
Transferor nor any person acting on its behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
	 
	 	(c)	 	no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;





A-1









 






	 	(d)	 	the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
	 
	 	(e)	 	the Transferor is the beneficial owner of the Securities being
transferred.





          In addition, if the transfer is made during the distribution compliance period specified in
Rule 903 of Regulation S and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are
applicable thereto, the Transferor confirms that such transfer has been made in accordance with the
applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.




          You and the Company and the Guarantor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.




	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	     [Name of Transferor]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

Authorized signature
	 	 






A-2









 





Exhibit B




Form of Certificate For Transfer From

Regulation S Global Security to Rule 144A Global Security

(transfers pursuant to Section 306(b) of the Indenture)




[Date]




The Bank of New York Trust

Corporate Trust Dept. – Reorganization Unit

101 Barclay Street, 7E

New York, NY 10286




      Re: [Note][Debenture][Zero Coupon] Due                      (the “Securities”) of XTRA
Finance Corporation (the “Company”)




Ladies and Gentlemen:




          Reference is hereby made to the Indenture, dated as of March 20, 2007 (as amended and
supplemented from time to time, the “Indenture”), among the Company, as issuer, Berkshire Hathaway
Inc., as guarantor (the “Guarantor”), and The Bank of New York Trust Company, N.A., as trustee (the
“Trustee”). Capitalized terms used but not defined herein shall have the meanings given them in
the Indenture.




          This letter relates to $                     principal amount of Securities which are held by the
undersigned (the “Transferor”) as a beneficial interest in the Regulation S Global Security (CUSIP
No.                     ) deposited with [Name of Depositary] (the “Depositary”). The Transferor has
requested a transfer of such beneficial interest for an interest in the Rule 144A Global Security
(CUSIP No.                    ) deposited with the Depositary.




          In connection with such request and in respect of such Securities, the Transferor hereby
certifies that such Securities are being transferred to a transferee that the Transferor reasonably
believes is purchasing the Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, and the transferee, as well as any such account,
is a “qualified institutional buyer” within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws of any state of the
United States or any other jurisdiction.




          You and the Company and the Guarantor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.




	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	 	 	Very truly yours,
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	[Name of Transferor]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Authorized signature
















 





Exhibit C




Form of Certificate for Transfers Pursuant To Rule 144




[Date]




The Bank of New York Trust

Corporate Trust Dept. – Reorganization Unit

101 Barclay Street, 7E

New York, NY 10286




	 	 	Re: [Note][Debenture][Zero Coupon] Due                      (the “Securities”) of XTRA
Finance Corporation (the “Company”)





Ladies and Gentlemen:




          Reference is hereby made to the Indenture, dated as of March 20, 2007 (as amended and
supplemented from time to time, the “Indenture”), among the Company, as issuer, Berkshire Hathaway
Inc., as guarantor (the “Guarantor”), and The Bank of New York Trust Company, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.




          In connection with our proposed sale of $                     principal amount of the Securities, which
represent an interest in a Rule 144A Global Note beneficially owned by the undersigned (the
“Transferor”), we confirm that such sale has been effected pursuant to and in accordance with Rule
144.




          You and the Company and the Guarantor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Dated: Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	[Name
	 	of Transferor]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

Authorized signature