exv4w4



 





Exhibit 4.4




XO HOLDINGS, INC.,




Issuer




AND




[                    ],



Trustee

 






INDENTURE



Dated as of [___], 200[___]

 






Senior Debt Securities




 









 





TABLE OF CONTENTS*



Page



CROSS-REFERENCE TABLE*




	 	 	 
	 	 	Section of
	Section of Trust Indenture Act of 1939, as amended	 	Indenture
	310(a)
	 	7.9
	310(b)
	 	7.8
	310(c)
	 	Inapplicable
	311(a)
	 	7.13
	311(b)
	 	7.13
	311(c)
	 	Inapplicable
	312(a)
	 	5.01,
	 
	 	5.02(a)
	312(b)
	 	5.2(c)
	312(c)
	 	5.2(c)
	313(a)
	 	5.4(a)
	313(b)
	 	5.4(b)
	313(c)
	 	5.4(b)
	313(d)
	 	5.4(c)
	314(a)
	 	5.3(a)
	314(b)
	 	Inapplicable
	314(c)
	 	13.7(a)
	314(d)
	 	Inapplicable
	314(e)
	 	13.7(b)
	314(f)
	 	Inapplicable
	315(a)
	 	7.1(b)
	315(b)
	 	7.14
	315(c)
	 	7.1(a)
	315(d)
	 	7.1(b)
	315(e)
	 	6.7
	316(a)
	 	6.6,
	 
	 	8.4
	316(b)
	 	6.4
	316(c)
	 	8.1
	317(a)
	 	6.2
	317(b)
	 	4.3
	318(a)
	 	13.9
	318(c)
	 	13.9








 




			
	*	 	This Table of Contents does not constitute part of the Indenture and shall not have any bearing upon the interpretation of any of its terms or provisions.
	 
	*	 	This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.





-ii- 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 1.1 Definitions of Terms
	 	 	1	 
	ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
	 	 	5	 
	Section 2.1 Designation and Terms of Securities
	 	 	5	 
	Section 2.2 Form of Securities and Trustee’s Certificate
	 	 	8	 
	Section 2.3 Denominations; Provisions for Payment
	 	 	8	 
	Section 2.4 Execution and Authentication
	 	 	10	 
	Section 2.5 Registration of Transfer and Exchange
	 	 	10	 
	Section 2.6 Temporary Securities
	 	 	11	 
	Section 2.7 Mutilated, Destroyed, Lost or Stolen Securities
	 	 	12	 
	Section 2.8 Cancellation
	 	 	12	 
	Section 2.9 Benefits of Indenture
	 	 	13	 
	Section 2.10 Authenticating Agent
	 	 	13	 
	Section 2.11 Global Securities
	 	 	13	 
	Section 2.12 No Obligation of the Trustee
	 	 	15	 
	ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
	 	 	15	 
	Section 3.1 Redemption
	 	 	15	 
	Section 3.2 Notice of Redemption
	 	 	15	 
	Section 3.3 Payment Upon Redemption
	 	 	17	 
	Section 3.4 Sinking Fund
	 	 	17	 
	Section 3.5 Satisfaction of Sinking Fund Payments with Securities
	 	 	17	 
	Section 3.6 Redemption of Securities for Sinking Fund
	 	 	18	 






-iii- 









 




TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE IV CERTAIN COVENANTS
	 	 	18	 
	Section 4.1 Payment of Principal, Premium and Interest
	 	 	18	 
	Section 4.2 Maintenance of Office or Agency
	 	 	18	 
	Section 4.3 Paying Agents
	 	 	18	 
	Section 4.4 Appointment to Fill Vacancy in Office of Trustee
	 	 	19	 
	Section 4.5 Compliance with Consolidation Provisions
	 	 	20	 
	Section 4.6 Statement by Officers as to Default
	 	 	20	 
	ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	 	 	20	 
	Section 5.1 Company to Furnish Trustee Names and Addresses of Securityholders
	 	 	20	 
	Section 5.2 Preservation of Information; Communications with Securityholders
	 	 	20	 
	Section 5.3 Reports by the Company
	 	 	21	 
	Section 5.4 Reports by the Trustee
	 	 	21	 
	ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
	 	 	22	 
	Section 6.1 Events of Default
	 	 	22	 
	Section 6.2 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	24	 
	Section 6.3 Application of Moneys Collected
	 	 	25	 
	Section 6.4 Limitation on Suits
	 	 	25	 
	Section 6.5 Rights and Remedies Cumulative; Delay or Omission Not Waiver
	 	 	26	 
	Section 6.6 Control by Securityholders
	 	 	27	 
	Section 6.7 Undertaking to Pay Costs
	 	 	27	 
	ARTICLE VII CONCERNING THE TRUSTEE
	 	 	28	 
	Section 7.1 Certain Duties and Responsibilities of Trustee
	 	 	28	 






-iv- 









 




TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 7.2 Certain Rights of Trustee
	 	 	29	 
	Section 7.3 Trustee Not Responsible for Recitals or Issuance or Securities
	 	 	30	 
	Section 7.4 May Hold Securities
	 	 	31	 
	Section 7.5 Moneys Held in Trust
	 	 	31	 
	Section 7.6 Compensation and Reimbursement
	 	 	31	 
	Section 7.7 Reliance on Officers’ Certificate
	 	 	32	 
	Section 7.8 Disqualification; Conflicting Interests
	 	 	32	 
	Section 7.9 Corporate Trustee Required; Eligibility
	 	 	32	 
	Section 7.10 Resignation and Removal; Appointment of Successor
	 	 	32	 
	Section 7.11 Acceptance of Appointment By Successor
	 	 	33	 
	Section 7.12 Merger, Conversion, Consolidation or Succession to Business
	 	 	35	 
	Section 7.13 Preferential Collection of Claims Against the Company
	 	 	35	 
	Section 7.14 Notice of Defaults
	 	 	35	 
	ARTICLE VIII CONCERNING THE SECURITYHOLDERS
	 	 	36	 
	Section 8.1 Evidence of Action by Securityholders
	 	 	36	 
	Section 8.2 Proof of Execution by Securityholders
	 	 	36	 
	Section 8.3 Who May be Deemed Owners
	 	 	37	 
	Section 8.4 Certain Securities Owned by Company Disregarded
	 	 	37	 
	Section 8.5 Actions Binding on Future Securityholders
	 	 	37	 
	ARTICLE IX SUPPLEMENTAL INDENTURES
	 	 	38	 
	Section 9.1 Supplemental Indentures Without the Consent of Securityholders
	 	 	38	 
	Section 9.2 Supplemental Indentures With Consent of Securityholders
	 	 	39	 
	Section 9.3 Effect of Supplemental Indentures
	 	 	40	 
	Section 9.4 Securities Affected by Supplemental Indentures
	 	 	40	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 9.5 Execution of Supplemental Indentures
	 	 	40	 
	Section 9.6 Conformity with Trust Indenture Act
	 	 	40	 
	ARTICLE X SUCCESSOR CORPORATION
	 	 	41	 
	Section 10.1 Company May Consolidate, Etc.
	 	 	41	 
	Section 10.2 Successor Substituted
	 	 	41	 
	Section 10.3 Evidence of Consolidation, Etc. to Trustee
	 	 	42	 
	ARTICLE XI SATISFACTION AND DISCHARGE
	 	 	42	 
	Section 11.1 Satisfaction and Discharge of Indenture
	 	 	42	 
	Section 11.2 Discharge of Obligations
	 	 	42	 
	Section 11.3 Deposited Moneys to be Held in Trust
	 	 	43	 
	Section 11.4 Payment of Moneys Held by Paying Agents
	 	 	43	 
	Section 11.5 Repayment to Company
	 	 	43	 
	ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	43	 
	Section 12.1 No Recourse
	 	 	43	 
	ARTICLE XIII MISCELLANEOUS PROVISIONS
	 	 	44	 
	Section 13.1 Effect on Successors and Assigns
	 	 	44	 
	Section 13.2 Actions by Successor
	 	 	44	 
	Section 13.3 Notices
	 	 	44	 
	Section 13.4 Notice to Holders of Securities; Waiver
	 	 	45	 
	Section 13.5 Governing Law
	 	 	45	 
	Section 13.6 Effect of Headings and Table of Contents
	 	 	45	 
	Section 13.7 Compliance Certificates and Opinions
	 	 	45	 
	Section 13.8 Payments on Business Days
	 	 	46	 
	Section 13.9 Conflict with Trust Indenture Act
	 	 	46	 






-vi- 









 




TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 13.10 Counterparts
	 	 	46	 
	Section 13.11 Separability
	 	 	46	 
	Section 13.12 Assignment
	 	 	46	 








 




			
	*	 	This Table of Contents does not constitute part of the Indenture and shall not have any bearing
upon the interpretation of any of its terms or provisions.





-vii- 









 





     INDENTURE, dated as of [___], 200[___], among XO Holdings, Inc., a Delaware corporation
(the “Company”), and [___], as trustee (the “Trustee”):



     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of unsecured debt securities (hereinafter
referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time
to time in one or more series as in this Indenture provided, as registered Securities without
coupons, to be authenticated by the certificate of the Trustee;



     WHEREAS, to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the execution of this
Indenture; and



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



     NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the
holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit
of the holders of Securities:



ARTICLE I

DEFINITIONS




     Section 1.1 Definitions of Terms. 



     The terms defined in this Section 1.1 (except as herein otherwise expressly provided
or unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section 1.1 and
shall include the plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that are by reference therein defined in
the Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of the execution of this instrument.



     “Affiliate” means, with respect to a specified Person, (a) any Person directly or indirectly
owning, controlling or holding with power to vote 10% or more of the outstanding voting securities
or other ownership interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person directly or
indirectly controlling, controlled by, or under common control with the specified Person, (d) a
partnership in which the specified Person is a general partner, (e) any officer or director of the
specified Person, and (f) if the specified Person is an individual, any entity of which the
specified Person is an officer, director or general partner.



     “Authenticating Agent” means an authenticating agent with respect to all or any of the series
of Securities appointed with respect to all or any series of the Securities by the Trustee pursuant
to Section 2.10.



 









 





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



     “Board of Directors” means the Board of Directors of the Company 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 to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.



     “Business Day” means, with respect to any series of Securities, any day other than a day on
which Federal or State banking institutions in the City of New York or place of payment, are
authorized or obligated by law, executive order or regulation to close.



     “Certificate” means a certificate signed by the principal executive officer, the principal
financial officer, the Treasurer or the principal accounting officer of the Company. The
Certificate need not comply with the provisions of Section 13.7.



     “Company” means XO Holdings, Inc., a corporation duly organized and existing under the laws of
the State of Delaware, and, subject to the provisions of Article Ten, shall also include its
successors and assigns.



     “Corporate Trust Office” means the office of the Trustee at which, at any particular time, its
corporate trust business shall be principally administered, which office at the date hereof is
located at [                    ].



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



     “Default” means any event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.



     “Defaulted Interest” has the meaning set forth in Section 2.3 hereof.



     Depositary” means, with respect to Securities of any series, for which the Company shall
determine that such Securities will be issued as a Global Security, The Depository Trust Company,
New York, New York, another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.1 or 2.11.



     “Event of Default” means, with respect to Securities of a particular series any event
specified in Section 6.1, continued for the period of time, if any, therein designated.



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



     “Global Security” means, with respect to any series of Securities, a Security executed by the
Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be registered in the name of
the Depositary or its nominee.



2









 





     “Governmental Obligations” means securities that are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not callable or redeemable at
the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of such depositary
receipt; provided, however, 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 Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such depositary receipt.



     “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such indebtedness or other obligation of such Person (whether
arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain financial statement conditions or
otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such
indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, however, that the term “Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has
a corresponding meaning.



     “Guarantor” means any Person Guaranteeing any obligation.



     “Guaranty Agreement” means a supplemental indenture, in a form satisfactory to the Trustee,
pursuant to which a Person Guarantees the Company’s obligations with respect to a series of
Securities.



     “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.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into in accordance
with the terms hereof.



     “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 installment of interest on a Security
of a particular series, means the date specified in such Security or in a Board Resolution
or in an indenture supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due and payable.



3









 





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



     “Officers’ Certificate” means a certificate signed by two Officers that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall include the statements
provided for in Section 13.7, if and to the extent required by the provisions thereof.



     “Opinion of Counsel” means an opinion in writing of legal counsel, who may be an employee of
or counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in Section 13.7, if and to the
extent required by the provisions thereof.



     “Original Issue Discount Security” means any Security which (i) is issued at a price lower
than the amount payable upon the maturity thereof and (ii) provides for an amount less than the
principal amount thereof to be due and payable upon redemption or a declaration of acceleration of
the maturity thereof pursuant to Section 6.1.



     “Outstanding”, when used with reference to Securities of any series, means, subject to the
provisions of Section 8.4, as of any particular time, all Securities of that series
theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying
agent for cancellation or that have previously been canceled; (b) Securities or portions thereof
for the payment or redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall
act as its own paying agent); provided, however, that if such Securities or portions of such
Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article Three, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of Section
2.7.



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



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 2.7 in lieu of a
lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.



     “Regular Record Date” has the meaning set forth in Section 2.3 hereof.



4









 





     “Responsible Officer” when used with respect to the Trustee means any authorized officer
within the Corporate Trust Department (or corresponding department bearing a different name) of the
Trustee, including the president, any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Person who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his or her knowledge of
and familiarity with the particular subject.



     “Securities” means the debt Securities authenticated and delivered under this Indenture.



     “Security Register” has the meaning set forth in Section 2.5(b) hereof.



     “Security Registrar” has the meaning set forth in Section 2.5(b) hereof.



     “Securityholder”, “holder of Securities”, “registered holder”, or other similar term, means
the Person or Persons in whose name or names a particular Security shall be registered on the books
of the Company kept for that purpose in accordance with the terms of this Indenture.



     “Special Record Date” has the meaning set forth in Section 2.3 hereof.



     “Subsidiary” means, in respect of any Person, any corporation, association, partnership,
limited liability company, or other business entity of which more than 50% of the total voting
power of shares of capital stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (a)
such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more
Subsidiaries of such Person.



     “Subsidiary Guarantor” means any Subsidiary of the Company that provides a Guarantee of the
obligations of the Company with respect to any series of Securities or enters into a Guaranty
Agreement that becomes a Subsidiary Guarantor.



     “Subsidiary Guarantee” means a Guarantee, including any Guaranty Agreement, provided by a
Subsidiary Guarantor of the Company’s obligations with respect to any series of Securities.



     “Trustee” means [___], and, subject to the provisions of Article Seven, shall also include
its successors and assigns, and, if at any time there is more than one Person acting in such
capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect
to a particular series of the Securities shall mean the trustee with respect to that series.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in effect at the
date of execution of this instrument, subject to the provisions of Sections 9.1, 9.2 and
10.1.



     “Yield to Maturity” means the yield to maturity on a series of Securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted financial practice.



5









 





ARTICLE II

ISSUE, DESCRIPTION, TERMS, EXECUTION,

REGISTRATION AND EXCHANGE OF SECURITIES




     Section 2.1 Designation and Terms of Securities. 



     (a) The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series up to the
aggregate principal amount of Securities of that series from time to time authorized by or pursuant
to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the
initial issuance of Securities of any series, there shall be established in or pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures
supplemental hereto:




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




     (2) any limit upon the aggregate principal amount of the Securities of that series that
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 that series);




     (3) whether any of the Securities of the series will be issuable in whole or in part in
temporary or permanent global form or in the form of book-entry securities and, in such
case, the identity of the Depositary for such series;




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




     (5) the rate or rates, which may be fixed or variable, at which the Securities of the
series shall bear interest or the manner of calculation of such rate or rates, if any;




     (6) the date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest will be payable or the manner of determination of such Interest
Payment Dates and the record date for the determination of holders to whom interest is
payable on any such Interest Payment Dates or the manner of determination of such record
dates;




     (7) the place or places where payments with respect to the Securities of the series
shall be payable;




     (8) the right, if any, to defer or extend payment of interest on the debt securities
and the maximum length of any deferral or extension period;




     (9) the dates, if any, on which, the price or prices at which and the terms and
conditions upon which, Securities of the series may be redeemed, in whole or in part, at the
option of the Company;



6









 






     (10) the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions (including payments made in cash
in satisfaction of future sinking fund obligations) or at the option of a holder thereof and
the date or dates, if any, on which, the price or prices at which, and the terms and
conditions upon which, Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;




     (11) if other than denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, the denominations in which the Securities of the series shall be issuable;




     (12) whether the series of Securities will be subject to any mandatory or optional
sinking fund or similar provisions;




     (13) the currency or currency units in which payment of the principal of and any
premium and interest on the Securities of the series shall be payable;




     (14) whether and under what circumstances the Company will pay additional amounts on
the Securities of the series held by non-U.S. persons in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional amounts;




     (15) the terms pursuant to which the Securities of the series are subject to defeasance
and satisfaction and discharge;




     (16) any addition to, or modification or deletion of, any Events of Default or
covenants provided for with respect to the Securities of the series;




     (17) the terms and conditions, if any, pursuant to which the Securities of the series
are secured;




     (18) whether the Securities of the series will be convertible into shares of common
stock or any other securities of the Company and, if so, the terms and conditions upon which
such Securities will be so convertible, including whether conversion is mandatory, at the
option of the holder, or at the option of the Company, the conversion price, the conversion
period and any provisions pursuant to which the number of shares of common stock or other
securities of the Company to be received by the holders of such series of Securities would
be subject to adjustment;




     (19) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.1;




     (20) any provisions granting special rights to holders when a specified event occurs;



7









 






     (21) any special tax implications of the Securities of the series, including provisions
for Original Issue Discount Securities, if offered;




     (22) the form of the Securities of the series, including the form of the Certificate of
Authentication for such series; and




     (23) any and all other terms with respect to such series, including any terms which may
be required by or advisable under United States laws or regulations or advisable in
connection with the marketing of Securities of that series.



     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 any such Board Resolution or in any
indentures supplemental hereto.



     If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of 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.



     Securities of any particular series may be issued at various times, with different dates on
which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different redemption dates. Unless otherwise provided,
a series may be reopened for issuances of additional Securities of such series.



     Section 2.2 Form of Securities and Trustee’s Certificate. 



     The Securities of any series and the Trustee’s certificate of authentication to be borne by
such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution of the Company and as set forth
in an Officers’ Certificate of the Company and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which Securities of that
series may be listed, or to conform to usage.



     Section 2.3 Denominations; Provisions for Payment. 



     The Securities shall be issuable as registered Securities and in the minimum denominations of
one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.1(a)(11). The Securities of a particular series shall bear interest payable on the Interest
Payment Dates and at the rate specified with respect to that series. Unless otherwise provided
pursuant to Section 2.1, the principal of and the interest on the Securities of any series,
as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable in
the coin or currency of the United States of America that at the time is legal tender for public
and private debt, at the office or agency of the Company maintained for that purpose in the United
States, unless otherwise specified with respect to any series of Securities, shall be the Corporate
Trust Office of the Trustee. Each Security shall be dated the date of its authentication. Unless
otherwise provided pursuant to Section 2.1, interest on the Securities shall be computed on
the basis of a 360-day year composed of twelve 30-day months.



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     The interest installment on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the
close of business on the applicable Business Day that is the Regular Record Date for such interest
installment. Unless otherwise provided in the terms of a series of Securities, at the option of
the Company, payment of interest may be mailed by check to the holders of the Securities of any
series at their respective addresses set forth in the Security Register (as herein defined) or
wired if held in book-entry form at The Depository Trust Company. In the event that any Security
of a particular series or portion thereof is called for redemption and the redemption date is
subsequent to a Regular Record Date with respect to any Interest Payment Date and on or prior to
such Interest Payment Date, interest on such Security will be paid upon presentation and surrender
of such Security as provided in Section 3.3.



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




     (1) The Company may make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on the applicable Business Day that is 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 such Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. The Trustee shall then fix a Special Record
Date for the payment of such Defaulted Interest which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first class postage prepaid, to each Securityholder at his or
her address as it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall be no longer payable
pursuant to the following clause (2).



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     (2) The Company may make payment of any Defaulted Interest on any Securities 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.



     Unless otherwise set forth in a Board Resolution or one or more indentures supplemental hereto
establishing the terms of any series of Securities pursuant to Section 2.1 hereof, the term
“Regular Record Date”, as used in this Section 2.3, with respect to a series of
Securities with respect to any Interest Payment Date for such series shall mean either (i) the
fifteenth day of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.1 hereof shall occur, if such Interest
Payment Date is the first day of a month, or (ii) the last day of the month immediately preceding
the month in which an Interest Payment Date established for such series pursuant to Section
2.1 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether
or not such date is a Business Day.



     Subject to the foregoing provisions of this Section 2.3, each Security of a series
delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security
of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were
carried by such other Security.



     Section 2.4 Execution and Authentication. 



     Two Officers shall sign the Securities for the Company by manual or facsimile signature. If
an Officer whose signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.



     A Security shall not be valid until an authorized signatory of the Trustee or an
Authentication Agent manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated under this
Indenture.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a written order of the Company for the authentication and delivery of
such Securities, signed by two Officers, and the Trustee shall authenticate and deliver such
Securities in accordance with such written order.



     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 7.1) shall be fully protected in relying upon, an Opinion of Counsel and an
Officers’ Certificate stating that the form and terms thereof have been established in conformity
with the provisions of this Indenture.



     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 that is not reasonably
acceptable to the Trustee.



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     Section 2.5 Registration of Transfer and Exchange. 



     (a) Securities of any series may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the United States, or such other location
designated by the Company, for other Securities of such series of authorized denominations, and for
a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section 2.5. In respect
of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange therefor the Security or
Securities of the same series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.



     (b) The Company shall keep, or cause to be kept, at its office or agency designated for such
purpose in the United States, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as provided in this Article and which at
all reasonable times shall be open for inspection by the Trustee. Unless otherwise specified in a
supplemental indenture, the Trustee is hereby appointed as “Security Registrar” for the purpose of
registering the Securities and the transfer of Securities of each series.



     Upon surrender for transfer of any Security at the office or agency of the Company designated
for such purpose, the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new Security or Securities of
the same series as the Security presented for a like aggregate principal amount.



     All Securities presented or surrendered for exchange or registration of transfer, as provided
in this Section 2.5, shall be accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by such holder’s duly
authorized attorney in writing.



     (c) No service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any series, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.6, Section 3.3(b) and
Section 9.4 not involving any transfer.



     (d) The Company shall not be required (i) to issue, exchange or register the transfer of any
Securities during a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of less than all the Outstanding Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Securities of any series or portions thereof called for redemption except the
unredeemed portion of any Securities of any series being redeemed in part. The
provisions of this Section 2.5 are, with respect to any Global Security, subject to
Section 2.11 hereof.



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     Section 2.6 Temporary Securities. 



     Pending the preparation of definitive Securities of any series, the Company may execute, and
the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every temporary Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities of such series. Without unnecessary delay, the
Company will execute and will furnish definitive Securities of such series, and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the purpose, and the Trustee
shall authenticate and such office or agency shall deliver in exchange for such temporary
Securities an equal aggregate principal amount of definitive Securities of such series, unless the
Company advises the Trustee to the effect that definitive Securities need not be executed and
furnished until further notice from the Company. Until so exchanged, the temporary Securities of
such series shall be entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.



     Section 2.7 Mutilated, Destroyed, Lost or Stolen Securities. 



     In case any temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for
the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or
stolen. In every case the applicant for a substituted Security shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company
and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s
Security and of the ownership thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon the written request or authorization of any Officer of the Company. Upon
the issuance of any substituted Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith. In case any
Security that has matured or is about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof, except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they
may require to save each of them harmless, and, in case of destruction, loss or theft, evidence to
the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security
and of the ownership thereof.



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     Every replacement Security issued pursuant to the provisions of this Section 2.7 shall
constitute an additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and proportionately with any and
all other Securities of the same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to
the extent lawful) any and all other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.



     Section 2.8 Cancellation. 



     All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company any canceled Securities held by the Trustee. In the absence of such request, the
Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a
certificate of disposition to the Company. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.



     Section 2.9 Benefits of Indenture. 



     Nothing in this Indenture or in the Securities, express or implied, shall give or be construed
to give to any Person, other than the parties hereto and the holders of the Securities, any legal
or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained, all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of the Securities.



     Section 2.10 Authenticating Agent. 



     So long as any of the Securities of any series remain Outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee, with the written
consent of the Company, shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon
exchange, transfer or partial redemption thereof, 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. All references in this Indenture to the authentication of
Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for
such series. Each Authenticating Agent shall be a corporation that has a combined capital and
surplus, as most recently reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing business to conduct a trust
business, and that is otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall
resign immediately.



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     Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility
of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder
as if originally named as an Authenticating Agent pursuant hereto.



     Section 2.11 Global Securities. 



     (a) If the Company shall establish pursuant to Section 2.1 that the Securities of a
particular series are issuable as a Global Security, then the Company shall execute and the Trustee
shall, in accordance with Section 2.4, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount
of, such of the Outstanding Securities of such series as shall be specified therein and that the
aggregate amount of Outstanding Securities represented thereby may from time to time be increased
or reduced to reflect exchanges, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction and (iv) shall bear a legend substantially to the following effect: “Except as
otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to
a nominee of such successor Depositary.” Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the written request signed in the name of the Company,
by two Officers thereof to be delivered to the Trustee pursuant to Section 2.4 or
Section 2.6.



     (b) Notwithstanding the provisions of Section 2.5, the Global Security of a series may
be transferred, in whole but not in part, and in the manner provided in Section 2.5, only
to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.



     (c) If at any time the Depositary for a series of the Securities notifies the Company that it
is unwilling or unable to continue as Depositary for such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be applicable to the
Securities of such series and the Company will execute, and subject to Section 2.5, the
Trustee will authenticate and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such Global Security. In
addition, the Company may at any time determine that the Securities of any series shall no longer
be represented by a Global Security and that the provisions of this Section 2.11 shall no
longer apply to the Securities of such series. In such event the Company will execute and subject
to Section 2.5, the Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the Global Security shall
be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for
the Global Security pursuant to this Section 2.11(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose names such Securities are so
registered.



14









 





     (d) If an Event of Default has occurred and is continuing with respect to a particular series
of the Securities, the Company may execute, and the Trustee, upon receipt of an Officers’
Certificate directing the authorization and delivery thereof, shall authenticate and deliver the
Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security.



     Section 2.12 No Obligation of the Trustee. 



     (a) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global
Security, a member of, or a participant in, the Depositary or other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Securities or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount or delivery of any Securities (or
other security or property) under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made to Holders in respect of the
Securities shall be given or made only to or upon the order of the registered Holder or Holders
(which shall be the Depositary or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through the Depositary, subject to
the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners.



     (b) The Trustee shall have no obligations or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or
among the Depositary participants, members or beneficial owners in any Global Security) other than
to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance as to form with the
express requirements hereof.



15









 





ARTICLE III

REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS




     Section 3.1 Redemption. 



     The Company may redeem the Securities of any series issued hereunder on and after the dates
and in accordance with the terms established for such series pursuant to Section 2.1
hereof.



     Section 3.2 Notice of Redemption. 



     (a) In case the Company shall desire to exercise such right to redeem all or, as the case may
be, a portion of the Securities of any series in accordance with the right reserved in such
Securities so to do, the Company shall, or shall cause the Trustee to, give notice of such
redemption to holders of the Securities of such series to be redeemed by sending electronically or
by mailing, first class postage prepaid, a notice of such redemption not less than 30 days and not
more than 60 days before the date fixed for redemption of that series to such holders at their last
addresses as they shall appear upon the Security Register, unless a shorter period is specified in
the Securities to be redeemed. Any notice that is sent in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the registered holder receives the
notice. In any case, failure to duly give such notice to the holder of any Security of any series
designated for redemption in whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Securities of such series or any other
series. 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 any such
restriction.



     Each such notice of redemption shall specify the date fixed for redemption and the redemption
price (or the manner of calculation thereof) at which Securities of that series are to be redeemed,
and shall state that payment of the redemption price of such Securities to be redeemed will be made
at the office or agency of the Company in the United States, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be paid as specified
in said notice, that from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to be redeemed in whole or in part
shall specify the particular Securities to be so redeemed. In case any Security is to be redeemed
in part only, the notice that relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after the redemption date, upon
surrender of such Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.



     (b) If less than all the Securities of a series are to be redeemed, the Company shall give the
Trustee at least 30 days’ notice in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee
shall select, by lot on a pro rata basis or in such other manner as it shall deem appropriate
and fair in its discretion. The portion of the principal amount of Securities so selected for
partial redemption shall be equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof. Upon making its selection, the Trustee shall promptly
notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part.



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     The Company may, if and whenever it shall so elect, by delivery of instructions signed on its
behalf by any Officer, instruct the Trustee or any paying agent to call all or any part of the
Securities of a particular series for redemption and to give notice of redemption in the manner set
forth in this Section 3.2, such notice to be in the name of the Company or its own name, as
the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is
to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such
Security Register, transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by mail that may be
required under this Section 3.2.



     Section 3.3 Payment Upon Redemption. 



     (a) If the giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption. Interest on
such Securities or portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption price and accrued
interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the
notice, said Securities shall be paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed for redemption. However, if the
date fixed for redemption is subsequent to a Regular Record Date with respect to any Interest
Payment Date and on or prior to such Interest Payment Date, the interest installment payable on
such date shall be payable to the registered holder at the close of business on the applicable
Regular Record Date pursuant to Section 2.3.



     (b) Upon presentation of any Security of such series that is to be redeemed in part only, the
Company shall execute and the Trustee shall authenticate and the office or agency where the
Security is presented shall deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal amount equal to the unredeemed
portion of the Security so presented.



     Section 3.4 Sinking Fund. 



     The provisions of Sections 3.4, 3.5 and 3.6 shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise specified as contemplated by
Section 2.1 for Securities of such series.



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



     Section 3.5 Satisfaction of Sinking Fund Payments with Securities. 



     The Company (i) may deliver Outstanding Securities of a series (other than any Securities
previously called for redemption) and (ii) may apply as a credit Securities of a series that have
been redeemed either at the election of the Company pursuant to the terms of 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 the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series, provided that such Securities have
not been previously so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the redemption price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.



     Section 3.6 Redemption of Securities for Sinking Fund. 



     Not less than 45 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.5 and the basis for such credit and will, together with such
Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not less than
30 days before each such sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and
cause notice of the redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.2. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in Section 3.3.



ARTICLE IV

CERTAIN COVENANTS




     Section 4.1 Payment of Principal, Premium and Interest. 



     The Company will duly and punctually pay or cause to be paid the principal of and any premium
and interest on the Securities of that series at the time and place and in the manner provided
herein and established with respect to such Securities.



     Section 4.2 Maintenance of Office or Agency. 



     So long as any series of the Securities remain Outstanding, the Company agrees to maintain an
office or agency in the United States with respect to each such series, where



     (i) Securities of that series may be presented for payment, (ii) Securities of that series may
be presented as hereinabove authorized for registration of transfer and exchange and (iii) notices
and demands to or upon the Company in respect of the Securities of that series and this Indenture
may be given or served, such designation to continue with respect to such office or agency until
the Company shall, by written notice signed by an Officer and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. 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, 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, notices and demands.



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     Section 4.3 Paying Agents. 



     (a) If the Company shall appoint one or more paying agents for all or any series of the
Securities, other than the Trustee, the Company will cause each such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to
the provisions of this Section 4.3:




     (1) that it will hold all sums held by it as such agent for the payment of the
principal of and any premium or interest on the Securities of that series (whether such sums
have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;




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




     (3) that it will, at any time during the continuance of any failure referred to in the
preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent; and




     (4) that it will perform all other duties of paying agent as set forth in this
Indenture.



     (b) If the Company shall act as its own paying agent with respect to any series of the
Securities, it shall on or before each due date of the principal of and any premium or interest on
Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto, a sum sufficient to pay such principal and any premium or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of such action, or any failure
(by it or any other obligor on such Securities) to take such action. 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 and any premium or interest on any Securities of that series, deposit with the paying
agent a sum sufficient to pay the principal and any premium or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such paying agent is the Trustee) the Company shall promptly notify the
Trustee of this action or failure so to act.



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     (c) Notwithstanding anything in this Section 4.3 to the contrary, (i) the agreement to
hold sums in trust as provided in this Section is subject to the provisions of Section 11.5
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee
all sums held in trust by the Company or such paying agent, such sums to be held by the Trustee
upon the same terms and conditions as those upon which such sums were held by the Company or such
paying agent; 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.



     Section 4.4 Appointment to Fill Vacancy in Office of Trustee. 



     The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all
times be a Trustee hereunder.



     Section 4.5 Compliance with Consolidation Provisions. 



     The Company will not, while any of the Securities remain Outstanding, consolidate with, or
merge into, or merge into itself, or sell or convey all or substantially all of its property to any
other company unless the provisions of Article Ten hereof are complied with.



     Section 4.6 Statement by Officers as to Default. 



     The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate signed by its principal
executive officer, principal financial officer or principal accounting officer stating whether or
not to the best knowledge of the signer thereof, the Company is in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture, and if the Company
shall be in default, specifying all such defaults and the nature and status thereof of which they
may have knowledge.



ARTICLE V

SECURITYHOLDERS’ LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE




     Section 5.1 Company to Furnish Names and Addresses of Securityholders to Trustee.




     The Company will furnish or cause to be furnished to the Trustee (a) semiannually on January
15 and July 15, a list, in such form as the Trustee may reasonably require, of the names and
addresses of the holders of each series of Securities as of such date, provided that the Company
shall not be obligated to furnish or cause to be furnished such list at any time that the list
shall not differ in any respect from the most recent list furnished to the Trustee by the Company
and (b) 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; provided, however, that, in either
case, no such list need be furnished for any series of Securities for which the Trustee shall be
the Security Registrar.



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     Section 5.2 Preservation of Information; Communications with Securityholders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities contained in the most recent
list furnished to it as provided in Section 5.1 and as to the names and addresses of
holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in
such capacity).



     (b) The Trustee may destroy any list furnished to it as provided in Section 5.1 upon
receipt of a new list so furnished.



     (c) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act
with other Securityholders with respect to their rights under this Indenture or under the
Securities. The Company, the Trustee, the Security Registrar and anyone else shall have the
protection of Section 312(c) of the Trust Indenture Act with respect to the sending of any material
pursuant to a request made pursuant to Section 312(b) of the Trust Indenture Act.



     Section 5.3 Reports by the Company. 



     (a) The Company covenants and agrees to file with the Trustee (unless such reports have been
filed on the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and
Retrieval system), within 15 days after the Company files the same with the Securities and Exchange
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 Securities and Exchange Commission may from
time to time by rules and regulations prescribe) that the Company may be required to file with the
Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. If
the Company is no longer required to file information, documents or reports pursuant to either of
such sections of the Exchange Act, the Company shall continue to provide the Trustee with reports
containing substantially the same information as would have been required to be filed with the
Securities Exchange Commission had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided to the Trustee within 15 days after
the dates applicable to a registrant that is not an accelerated filer or a large accelerated filer
on which the Company would have been required to provide reports to the Securities and Exchange
Commission had it continued to have been subject to such reporting requirements. For the avoidance
of doubt, the Company shall also comply with the other provisions of Section 314(a) of the Trust
Indenture Act.



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




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     (c) The Company covenants and agrees to transmit electronically or by mail, first class
postage prepaid, or reputable over-night delivery service that provides for evidence of receipt, to
the Securityholders, as their names and addresses appear upon the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of this Section 5.3
as may be required by rules and regulations prescribed from time to time by the Securities and
Exchange Commission.



     Section 5.4 Reports by the Trustee. 



     (a) On or before [          ] in each year in which any of the Securities are Outstanding, the
Trustee shall transmit by mail, first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Security Register, a brief report dated as of the preceding [          ],
if and to the extent required under Section 313(a) of the Trust Indenture Act, detailing certain
events that occurred within the previous 12 months.



     (b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.



     (c) A copy of each such report shall, at the time of such transmission to Securityholders, be
filed by the Trustee with the Company, with each stock exchange upon which any Securities are
listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to
notify the Trustee when any Securities become listed on any stock exchange.



ARTICLE VI

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

ON EVENT OF DEFAULT




     Section 6.1 Events of Default. 



     (a) Whenever used herein with respect to Securities of a particular series, “Event of Default”
means any one or more of the following events that has occurred and is continuing:




     (1) the Company defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; provided, however, that
a valid extension of an interest payment period by the Company in accordance with the terms
of any indenture supplemental hereto, shall not constitute a default in the payment of
interest for this purpose;




     (2) the Company defaults in the payment of the principal of (or premium, if any, on)
any of the Securities of that series as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment
required by any sinking or analogous fund established with respect to that
series; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture supplemental hereto, shall not
constitute a default in the payment of principal or any premium for this purpose;



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     (3) the Company fails to observe or perform any other of its covenants or agreements
with respect to that series contained in this Indenture or otherwise established with
respect to that series of Securities pursuant to Section 2.1 hereof (other than a
covenant or agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a period of 60 days
after the date on which written notice of such failure, requiring the same to be remedied
and stating that such notice is a “Notice of Default” hereunder, shall have been given in
writing to the Company by the Trustee, or to the Company and the Trustee by the holders of
at least 25% in principal amount of the Securities of that series at the time Outstanding;




     (4) if the Securities of the series are convertible into shares of common stock or
other securities of the Company, failure by the Company to deliver common stock or the other
securities when the holder or holders of such Securities elect to convert such Securities
into shares of common stock or other securities of the Company;




     (5) the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a
voluntary case, (ii) consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a general assignment for the benefit of its
creditors;




     (6) a court of competent jurisdiction enters an order under any Bankruptcy Law that
(i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian of
the Company for all or substantially all of its property or (iii) orders the liquidation of
the Company, and, in each such case, the order or decree remains unstayed and in effect for
90 days; or




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



     (b) In each and every such case (other than an Event of Default specified in clauses (5) or
(6) above), unless the principal of all the Securities of that series shall have already become due
and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount
of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee, if given by such Securityholders), may declare the principal (or, if the
Securities of such series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of, premium, if any, and accrued interest,
if any, on all the Securities of that series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable, notwithstanding
anything contained in this Indenture or in the Securities of that series or established with
respect to that series pursuant to Section 2.1 to the contrary. If an Event of Default
specified in clauses (5) or (6) above occurs, all unpaid principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of, premium, if any, and accrued interest, if any,
on, all the Securities of that series then outstanding will become automatically due and payable
immediately, without any declaration or other act on the part of the Trustee or any holder.



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     (c) At any time after the principal of the Securities of that series shall have been so
declared due and payable, and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding hereunder, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of that series and the principal of (and premium,
if any, on) any and all Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue installments of interest, at the rate per
annum or Yield to Maturity (in the case of Original Issue Discount Securities) expressed in the
Securities of that series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and any amount payable to
the Trustee under Section 7.6, and (ii) any and all Events of Default under the Indenture
with respect to such series, other than the non-payment of principal, premium, if any, or interest
on Securities of that series that (or, if any Securities are Original Issue Discount Securities,
such portion of the principal as may be specified in the terms thereof) shall not have become due
by their terms, shall have been remedied or waived as provided in Section 6.6.



     No such rescission and annulment shall extend to or shall affect any subsequent default or
impair any right consequent thereon.



     (d) In case the Trustee shall have proceeded to enforce any right with respect to Securities
of that series under this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee shall continue as though no such proceedings had been taken.



     Section 6.2 Collection of Indebtedness and Suits for Enforcement by Trustee. 



     (a) The Company covenants that (i) in case it shall default in the payment of any installment
of interest on any of the Securities of a series, or any payment required by any sinking or
analogous fund established with respect to that series as and when the same shall have become due
and payable, and such default shall have continued for a period of 30 days, or (ii) in case it
shall default in the payment of the principal of (or premium, if any, on) any of the Securities of
a series when the same shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on
all such Securities for principal (and premium, if any) or interest, or both, as the case may
be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment
of such interest is enforceable under applicable law) upon overdue installments of interest at the
rate per annum expressed in the Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the reasonable costs and expenses of collection, and the
amount payable to the Trustee under Section 7.6.



24









 





     (b) If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the Securities of that series
and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or other obligor upon the Securities of that series, wherever situated.



     (c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the Company, or its
creditors or property, the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under this Indenture at the
date of institution of such proceedings and for any additional amount that may become due and
payable by the Company after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the deduction of the
amount payable to the Trustee under Section 7.6; any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such
series to make such payments to the Trustee, and, in the event that the Trustee shall consent to
the making of such payments directly to such Securityholders, to pay to the Trustee any amount due
it under Section 7.6.



     (d) All rights of action and of asserting claims under this Indenture, or under any of the
terms established with respect to Securities of that series, may be enforced by the Trustee without
the possession of any of such Securities, or the production thereof at any trial or other
proceeding relating thereto, and any such suit or 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 payment to the Trustee of any amounts due under Section 7.6, be for the
ratable benefit of the holders of the Securities of such series.



     In case of an Event of Default hereunder, the Trustee may, in its discretion, proceed to
protect and enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effective to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted
in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.



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



25









 





     Section 6.3 Application of Moneys Collected. 



     Any moneys collected by the Trustee pursuant to this Article with respect to a particular
series of Securities shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal (or premium, if
any) or interest (upon presentation of the Securities of that series and notation thereon the
payment if only partially paid) and upon surrender thereof (f fully paid):



     FIRST: To the payment of costs and expenses of collection and of all amounts payable to the
Trustee under Section 7.6; and



     SECOND: To the payment of the amounts then due and unpaid upon the Securities of such series
for principal and any premium and interest, 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 6.4 Limitation on Suits. 



     No holder of a Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or
under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name
as trustee hereunder; (iii) such holder or holders shall have offered to the Trustee such
reasonable indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
therein or thereby; and (iv) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such action, suit or proceeding; and (v)
during such 60 day period, the holders of a majority in principal amount of the Securities of that
series do not give the Trustee a direction inconsistent with the request.



     Notwithstanding anything contained herein to the contrary or any other provisions of this
Indenture, the right of any holder of any Security to receive payment of the principal of and any
premium and (subject to Section 2.3) interest on such Security (whether upon redemption,
repurchase, maturity or otherwise) or payment or delivery of any amounts due upon conversion of
Securities of any series that are convertible into shares of common stock or other securities, as
therein provided, on or after the respective due dates expressed in such Security (or in the case
of redemption or repurchase, on the redemption date or repurchase date, respectively), or to
institute
suit for the enforcement of any such payment or delivery on or after such respective dates
(including the redemption date or repurchase date, as applicable) shall not be impaired or affected
without the consent of such holder. By accepting a Security hereunder, it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series with every other
such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and
enforcement of the provisions of this Section 6.4, each and every Securityholder and the
Trustee shall be entitled to such relief as can be given either at law or in equity.



26









 





     Section 6.5 Rights and Remedies Cumulative; Delay or Omission Not Waiver. 



     (a) Except as otherwise provided in Section 2.7, all powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or otherwise established
with respect to such Securities.



     (b) No delay or omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 6.4, every power and remedy
given by this Article or by law to the Trustee or the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.



     Section 6.6 Control by Securityholders. 



     The holders of a majority in aggregate principal amount of the Securities of any series at the
time Outstanding, determined in accordance with Section 8.4, 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 such series;
provided, however, that such direction shall not be in conflict with any rule of
law or with this Indenture or be unduly prejudicial to the rights of holders of Securities of such
series not consenting; and provided, further, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such direction. Prior to the
taking of any action hereunder, the Trustee shall be entitled to reasonable indemnification
satisfactory to the Trustee against all losses and expenses caused by taking or not taking such
action. Subject to the provisions of Section 7.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer
or Officers of the Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of the Securities of
any series at the time Outstanding
affected thereby, determined in accordance with Section 8.4, may determine, and may
have the Trustee on behalf of the holders of all of the Securities of such series waive any past
default in the performance of any of the covenants contained herein or established pursuant to
Section 2.1 with respect to such series and its consequences, except for (a) a default in
the payment of the principal of or any premium or interest on, any of the Securities of that series
(whether upon redemption, repurchase, maturity or otherwise) or payment or delivery of any amounts
due upon conversion of Securities of any series that are convertible into shares of common stock or
other securities as and when the same shall become due by the terms of such Securities otherwise
than by acceleration (unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal and any premium has been deposited with the Trustee (in
accordance with Section 6.1(c) or (b)) if the Securities of that series are convertible
into shares of common stock or other securities, the failure by the Company to deliver common stock
or the other securities, as and when they shall become deliverable by the terms of such Securities.
Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the Securities of such series shall
be restored to their former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.



27









 





     Section 6.7 Undertaking to Pay Costs. 



     All parties to this Indenture agree, and each holder of any Securities, by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided, however, that the provisions of this
Section 6.7 shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of (or premium, if any) or interest on any
Security of such series, on or after the respective due dates expressed in such Security or
established pursuant to this Indenture.



ARTICLE VII

CONCERNING THE TRUSTEE




     Section 7.1 Certain Duties and Responsibilities of Trustee. 



     (a) The Trustee, prior to the occurrence of an Event of Default with respect to the Securities
of a series and after the curing of all Events of Default with respect to the Securities of that
series that may have occurred, shall undertake to perform with respect to the Securities of such
series such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee. In case an Event of
Default with respect to the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that series such of the rights
and
powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in the conduct of such
person’s own affairs.



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



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




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




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




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




     (3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of not less than a
majority in principal amount of the Securities of any series at the time Outstanding
(determined as provided in Section 8.4) relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee under this Indenture with respect to the Securities of
that series; and




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



     Section 7.2 Certain Rights of Trustee. 



     Except as otherwise provided in Section 7.1:



     (a) The Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any document (whether in its original or facsimile form) believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document. The Trustee shall receive and retain
financial reports and statements of the Company as provided herein, but shall have no duty to
review or analyze such reports or statements to determine compliance under covenants or other
obligations of the Company.



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     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
and an Opinion of Counsel, which shall conform to the provisions of Section 13.7. 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.



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



     (d) The Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.



     (e) The permissive rights of the Trustee to take actions enumerated in this Indenture shall
not be construed as duties.



     (f) Except with respect to Section 4.1, the Trustee shall have no duty to inquire as
to the performance of the Company with respect to the covenants contained in Article Four. In
addition, the Trustee shall not be deemed to have knowledge of an Event of Default, except (i) any
Default or Event of Default occurring pursuant to Section 6.1(a)(2) or (ii) any Default or
Event of Default of which a Responsible Officer of the Trustee shall have received written
notification from the Company or any Holder of such Default or Event of Default at the Corporate
Trust Office, and such notice references the applicable series of Securities and this Indenture.



     (g) The rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities (including as Paying Agent) hereunder, and to each agent, custodian and
other Person employed to act hereunder.



     (h) Delivery of reports, information and documents to the Trustee under Section 5.3 is
for informational purposes only; the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officers’ Certificate).



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



     (j) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but
not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such
loss or damage and regardless of the form of action.



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     (k) The Trustee shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation, (i) acts of God,
including earthquakes, fire and flood; (ii) terrorism, wars and other military disturbances; (iii)
sabotage, epidemics and riots; (iv) interruptions, loss or malfunctions of utilities, computer
(hardware or software) or communication services; (v) accidents and labor disputes; (vi) acts of
civil or military authorities and governmental actions.



     Section 7.3 Trustee Not Responsible for Recitals or Issuance or Securities. 



     (a) The recitals contained herein and in the Securities shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same.



     (b) The Trustee makes no representations as to the validity or sufficiency of this Indenture
or of the Securities.



     (c) The Trustee shall not be accountable for the use or application by the Company of any of
the Securities or of the proceeds of such Securities, or for the use or application of any moneys
paid over by the Trustee in accordance with any provision of this Indenture or established pursuant
to Section 2.1, or for the use or application of any moneys received by any paying agent
other than the Trustee.



     Section 7.4 May Hold Securities. 



     The Trustee or any paying agent or Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it would have if it
were not Trustee, paying agent or Security Registrar.



     Section 7.5 Moneys Held in Trust. 



     Subject to the provisions of Section 11.5, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds of the Trustee except to the extent required
by law. The Trustee shall be under no liability for interest on any moneys received by it
hereunder, except such as it may agree with the Company to pay thereon.



     Section 7.6 Compensation and Reimbursement. 



     (a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled
to, such reasonable compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), as the Company and the Trustee may from time to
time agree in writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties hereunder of the
Trustee. Except as otherwise expressly provided herein, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all Persons not regularly in
its employ). Except any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of the trusts hereby created, including the
reasonable costs and expenses of defending itself against any claim of liability in the premises.



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     (b) The obligations of the Company under this Section 7.6 to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of particular
Securities. The provisions of this Section 7.6 shall survive the resignation or removal of
the Trustee and the termination of this Indenture.



     (c) When the Trustee incurs expenses or renders services after a Default specified in
Section 6.1(a)(5) and (6) occurs, such expenses (including the charges and expenses of its
counsel) and the compensation for such services shall be paid to the extent allowed under any
Bankruptcy Law and are intended to constitute expenses of administration under any Bankruptcy Law.



     Section 7.7 Reliance on Officers’ Certificate. 



     Except as otherwise provided in Section 7.1, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.



     Section 7.8 Disqualification; Conflicting Interests. 



     If the Trustee has or shall acquire any “conflicting interest” within the meaning of the Trust
Indenture Act, the Trustee and the Company shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.



     Section 7.9 Corporate Trustee Required; Eligibility. 



     There shall at all times be a Trustee with respect to the Securities issued hereunder, which
shall at all times be a corporation organized and doing business under the laws of the United
States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Securities and Exchange Commission,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this Section 7.9,
the combined capital and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.9, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.



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     Section 7.10 Resignation and Removal; Appointment of Successor. 



     (a) The Trustee or any successor hereafter appointed, may at any time resign with respect to
the Securities of one or more series by giving written notice thereof to the Company and by
transmitting notice of resignation electronically or by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee
with respect to the Securities of such series by or pursuant to a Board Resolution. If no
successor trustee shall have been so appointed and have accepted such appointment within 30 days
after the mailing 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 such Securities
of such series, or any Securityholder of that series who has been a bona fide holder of a Security
or Securities for at least six months may on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.



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




     (1) the Trustee shall fail to comply with the provisions of Section 7.8 after
written request therefor by the Company or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months; or




     (2) the Trustee shall cease to be eligible in accordance with the provisions of
Section 7.9 and shall fail to resign after written request therefor by the Company
or by any such Securityholder; or




     (3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the Company may remove the Trustee with
respect to all Securities and appoint a successor trustee by or pursuant to a Board
Resolution, or, unless the Trustee’s duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Security or Securities for at least six
months may, on behalf of that holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.



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     (c) The holders of a majority in aggregate principal amount of the Securities of any series at
the time Outstanding may at any time remove the Trustee with respect to such series by so notifying
the Trustee and the Company, and may appoint a successor Trustee for such series with the written
consent of the Company.



     (d) Any resignation or removal of the Trustee and appointment of a successor trustee with
respect to the Securities of a series pursuant to any of the provisions of this Section
7.10 shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.



     (e) Any successor trustee appointed pursuant to this Section 7.10 may be appointed
with respect to the Securities of one or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Securities of any particular series.



     Section 7.11 Acceptance of Appointment by Successor. 



     (a) 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 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; however, upon the request of the Company 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.



     (b) 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 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) 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 supple- mental indenture shall constitute such Trustees co-trustees of the same
trust, 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 that no Trustee shall
be responsible for any act or failure to act on the part of any other Trustee hereunder. The
execution and delivery of such supplemental indenture, the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this Indenture, 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; however, upon request of
the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor trustee, to the extent contemplated by such supplemental indenture, the 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.




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     (c) Upon request of any such successor trustee, the Company 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 paragraph (a) or (b) of this Section 7.11, as
the case may be.



     (d) 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.



     (e) Upon acceptance of appointment by a successor trustee as provided in this Section
7.11, the Company shall transmit notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.



     Section 7.12 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 the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case
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 7.13 Preferential Collection of Claims Against the Company. 



     The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.



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     Section 7.14 Notice of Defaults. 



     If a Default occurs and is continuing hereunder with respect to Securities of any series and
if it is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each
holder of such Securities notice of the Default within 90 days after such Default occurs
provided, however, that in the case of any Default of the character specified in
Section 6.1(a)(3) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. Except in the case of a
default in payment of principal of or interest on any Security (whether upon redemption,
repurchase, maturity or otherwise) (including payments pursuant to the redemption or repurchase
provisions of such Security, if any) or payment or delivery of any amounts due upon conversion of
Securities of any series that are convertible into shares of common stock or other securities, the
Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the holders of such Securities.



ARTICLE VIII

CONCERNING THE SECURITYHOLDERS




     Section 8.1 Evidence of Action by Securityholders. 



     Whenever in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Securities of a particular series may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders
of such majority or specified percentage of that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing.



     If the Company shall solicit from the Securityholders of any series any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date (in accordance with Section
316(c) of the Trust Indenture Act) for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purpose of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that series have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.



36









 





     Section 8.2 Proof of Execution by Securityholders. 



     Subject to the provisions of Section 7.1, proof of the execution of any instrument by
a Securityholder (such proof will not require notarization) or his or her agent or proxy and proof
of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:



     (a) The fact and date of the execution by any such Person of any instrument may be proved in
any reasonable manner acceptable to the Company.



     (b) The ownership of Securities shall be proved by the Security Register of such Securities or
by a certificate of the Security Registrar thereof.



     (c) The Trustee or the Company may require such additional proof of any matter referred to in
this Section 8.2 as it shall deem necessary.



     Section 8.3 Who May be Deemed Owners. 



     Prior to the due presentment for registration of transfer of any Security, the Company, the
Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name
such Security shall be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject to Section 2.3)
interest on such Security and for all other purposes. Neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be affected by any notice to the contrary.



     Section 8.4 Certain Securities Owned by Company Disregarded. 



     In determining whether the holders of the requisite aggregate principal amount of Securities
of a particular series have concurred in any direction or consent (or waiver, as the case may be)
under this Indenture, the Securities of that series that are owned by the Company or any other
obligor on the Securities of that series, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any other obligor
on the Securities of that series, shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction or consent (or waiver, as the case may be),
only Securities of such series that the Trustee actually knows are so owned shall be so
disregarded. The Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 8.4, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall be full protection
to the Trustee.



37









 





     Section 8.5 Actions Binding on Future Securityholders. 



     At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
8.1, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in Section 8.2,
revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by
the holder of any Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or not any notation
in regard thereto is made upon such Security. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Securities of a particular series specified in this
Indenture in connection with such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Securities of that series.



ARTICLE IX

SUPPLEMENTAL INDENTURES




     Section 9.1 Supplemental Indentures Without the Consent of Securityholders. 



     In addition to any supplemental indenture otherwise authorized by this Indenture, the Company
and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or more of the following purposes:



     (a) to cure any ambiguity, omission, defect, or inconsistency herein or in the Securities of
any series;



     (b) to comply with Article Ten;



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



     (d) to add Guarantees, including Subsidiary Guarantees, with respect to debt securities or to
release Subsidiary Guarantors from Subsidiary Guarantees in accordance with the terms of the
applicable series of Securities or to secure a series of Securities;



     (e) to add to the covenants of the Company 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;



     (f) to add to, delete from, or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication, and delivery of Securities, as
herein set forth;




38











 





     (g) to make any change that does not adversely affect the rights of any Securityholder in any
material respect, provided that any amendment to conform the terms of any Securities to its
description contained in the final offering document therefor shall not be deemed to be adverse to
any Securityholder;



     (h) to provide for the issuance of and establish the form and terms and conditions of the
Securities of any series as provided in Section 2.1, to establish the form of any
certifications required to be furnished pursuant to the terms of this Indenture or any series of
Securities, or to add to the rights of the holders of any series of Securities;



     (i) to comply with any requirements of the Securities and Exchange Commission in connection
with qualifying, or maintaining the qualification of, this Indenture under the Trust Indenture Act;
or



     (j) to secure any series of Security.



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



     Any supplemental indenture authorized by the provisions of this Section 9.1 may be
executed by the Company and the Trustee without the consent of the holders of any of the Securities
at the time Outstanding, notwithstanding any of the provisions of Section 9.2.



     Section 9.2 Supplemental Indentures with Consent of Securityholders. 



     With the consent (evidenced as provided in Section 8.1) of the holders of not less
than a majority in aggregate principal amount of the Securities of each series affected by such
supplemental indenture or indentures at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner not covered by Section 9.1 the rights of the holders of the
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding
affected thereby, (i) change the fixed maturity of any Securities of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or
reduce any premium payable upon the redemption thereof; (ii) reduce the amount of principal of an
Original Issue Discount Security or any other Security payable upon acceleration of the maturity
thereof; (iii) change the currency in which any Security or any premium or interest is payable;
(iv) impair the right to receive payment of principal of and interest on any Security (whether upon
redemption, repurchase, maturity, or otherwise) or payment or delivery of any amounts due upon
conversion of Securities of any series that are convertible into shares of common stock or other
securities on or after the due dates thereof or to institute suit for the enforcement of any
payment on or with
respect to any Security; (v) adversely change the right to convert or exchange, including
decreasing the conversion rate or increasing the conversion price of, such Security (if
applicable); (vi) if the Securities are secured, change the terms and conditions pursuant to which
the Securities are secured in a manner adverse to the holders of the secured Securities; (vii)
reduce the percentage in principal amount of outstanding Securities of any series, the consent of
whose holders is required for modification or amendment of this Indenture or for waiver of
compliance with any provision of this Indenture; (viii) reduce the requirements contained in this
Indenture for quorum or voting; (ix) change any obligations of the Company to maintain an office or
agency in the places and for the purposes required by this Indenture; or (x) modify any of the
above provisions.



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     It shall not be necessary for the consent of the Securityholders of any series affected
thereby under this Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.



     Section 9.3 Effect of Supplemental Indentures. 



     Upon the execution of any supplemental indenture pursuant to the provisions of this Article or
of Section 10.1, this Indenture shall, with respect to such series, be deemed to be
modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders
of Securities of the series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.



     Section 9.4 Securities Affected by Supplemental Indentures. 



     Securities of any series affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions of this Article or of
Section 10.1, may bear a notation in form approved by the Company, provided such form meets
the requirements of any exchange upon which such series may be listed, as to any matter provided
for in such supplemental indenture. If the Company shall so determine, new Securities of that
series so modified as to conform, in the opinion of the Trustee and the Company, to any
modification of this Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee and delivered in exchange for the Securities
of that series then Outstanding.



     Section 9.5 Execution of Supplemental Indentures. 



     Upon the request of the Company, accompanied by the Board Resolutions authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may, in its discretion (but without any obligation to do so) enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 7.1, shall be
provided an Opinion of Counsel and an Officers’ Certificate as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for the Trustee under the provisions
of this Article to join in the execution thereof; provided, however, that such
Opinion of Counsel need not be provided in connection with the execution of a supplemental
indenture that establishes the terms of a series of Securities pursuant to Section 2.1
hereof, unless otherwise requested by the Trustee.



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     Section 9.6 Conformity with Trust Indenture Act. 



     Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act of 1939, as amended, in effect on such date.



ARTICLE X

SUCCESSOR CORPORATION




     Section 10.1 Company May Consolidate, Etc. 



     Unless otherwise specified in a supplemental indenture hereto, nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the Company) or successive consolidations
or mergers in which the Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or
its successor or successors as an entirety, or substantially as an entirety, to any other Person
(whether or not affiliated with the Company or its successor or successors) authorized to acquire
and operate the same. The Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the
surviving corporation of such transaction), sale, conveyance, transfer or other disposition, the
due and punctual payment of the principal of and any premium and interest on all of the Securities
of all series in accordance with the terms of each series, according to their tenor and the due and
punctual performance and observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant to Section 2.1
to be kept or performed by the Company shall be expressly assumed, by supplemental indenture (which
shall conform to the requirements of the Trust Indenture Act as then in effect) satisfactory in
form to the Trustee executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the entity which shall have
acquired such property.



     Section 10.2 Successor Substituted. 



     (a) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
and upon the assumption by the successor Person, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and any premium and interest on all of the Securities of all
series Outstanding and the due and punctual performance of all of the covenants and conditions
of this Indenture or established with respect to each series of the Securities pursuant to
Section 2.1 to be performed by the Company with respect to each series, such successor
Person shall succeed to and be substituted for the Company with the same effect as if it had been
named as the Company herein, and thereupon the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.



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     (b) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
such changes in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.



     (c) Nothing contained in this Indenture or in any of the Securities shall prevent the Company
from merging into itself or acquiring by purchase or otherwise all or any part of the property of
any other Person (whether or not affiliated with the Company).



     Section 10.3 Evidence of Consolidation, Etc. to Trustee. 



     The Trustee, subject to the provisions of Section 7.1, shall be provided an Opinion of
Counsel and an Officers’ Certificate as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply with the
provisions of this Article.



ARTICLE XI

SATISFACTION AND DISCHARGE




     Section 11.1 Satisfaction and Discharge of Indenture. 



     If at any time: (a) the Company shall have delivered to the Trustee for cancellation all
Securities of a series theretofore authenticated (other than any Securities that shall have been
destroyed, lost or stolen and that shall have been replaced or paid as provided in Section
2.7 and Securities for whose payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company and thereupon repaid to the
Company or discharged from such trust, as provided in Section 11.5); or (b) all such
Securities of a particular series not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or, except in the case of any Securities that are convertible or
exchangeable, are by their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust
funds an amount of money in U.S. dollars sufficient, or non-callable Governmental Obligations, the
principal of and interest on which when due, will be sufficient or a combination thereof,
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 at maturity or upon
redemption all Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal and any premium and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder with respect to such series by the Company then this
Indenture shall thereupon cease to be of further effect with respect to such series except for the
provisions of Sections 2.3, 2.5, 
2.7, 4.1, 4.2, 4.3 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.6 and 11.5, that shall survive to such
date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the
Company shall execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to such series.



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     Section 11.2 Discharge of Obligations. 



     If at any time all such Securities of a particular series not heretofore delivered to the
Trustee for cancellation or that have not become due and payable as described in Section
11.1 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds money in U.S. dollars sufficient or an amount of non-callable Governmental Obligations, the
principal of and interest on which when due, will be sufficient or a combination thereof,
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 at maturity or upon
redemption all such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal and any premium and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company with respect to such series, then
after the date such moneys or Governmental Obligations, as the case may be, are deposited with the
Trustee the obligations of the Company under this Indenture with respect to such series shall cease
to be of further effect except for the provisions of Sections 2.3, 2.5, 2.7, 4.1, 4.2, 4.3,
7.6, 7.10 and 11.5 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.6 and 11.5 shall survive.



     Section 11.3 Deposited Moneys to be Held in Trust. 



     All moneys or Governmental Obligations deposited with the Trustee pursuant to Sections
11.1 or 11.2 shall be held in trust and shall be available for payment as due, either directly
or through any paying agent (including the Company acting as its own paying agent), to the holders
of the particular series of Securities for the payment or redemption of which such moneys or
Governmental Obligations have been deposited with the Trustee.



     Section 11.4 Payment of Moneys Held by Paying Agents. 



     In connection with the satisfaction and discharge of this Indenture, all moneys or
Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such moneys or Governmental Obligations.



     Section 11.5 Repayment to Company. 



     Any moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then
held by the Company, in trust for payment of principal of or premium or interest on the Securities
of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of and any premium or interest on
such Securities shall have respectively become due and payable, shall be repaid to
the Company on [___] of each year or (if then held by the Company) shall be discharged from
such trust. The paying agent and the Trustee thereupon shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the holder of any of the
Securities entitled to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Company for the payment thereof.



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ARTICLE XII

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS




     Section 12.1 No Recourse.



     No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as such, of the Company or
of any predecessor or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that
no such personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or
successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom. Any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any of the Securities or
implied therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of such Securities.



ARTICLE XIII

MISCELLANEOUS PROVISIONS




     Section 13.1 Effect on Successors and Assigns. 



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



     Section 13.2 Actions by Successor.



     Any act or proceeding by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer of any Person that
shall at the time be the lawful sole successor of the Company.




44












 





     Section 13.3 Notices.



     Except as otherwise expressly provided herein, any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the holders of
Securities to or on the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is filed in writing by the
Company with the Trustee), as follows: XO Holdings, Inc., [                    ], Attention: [                    ]. Any
notice, election, request or demand by the Company or any Securityholder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.



     Section 13.4 Notice to Holders of Securities; Waiver.



     Except as otherwise expressly provided herein, where this Indenture provides for notice to
holders of Securities of any event, such notice shall be sufficiently given to holders of
Securities if in writing and mailed, first-class postage prepaid, to each holder of a Security
affected by such event, at the address of such holder as it appears in the Security Register, not
earlier than the earliest date, and not later than the latest date, prescribed for the giving of
such notice.



     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 to holders of Securities by mail, then such notification
as shall be made with the approval of the Trustee shall constitute sufficient notice to such holder
for every purpose hereunder. In any case where notice to holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice mailed to any particular
holder of a Security shall affect the sufficiency of such notice with respect to other holders of
Securities given as provided herein.



     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 applicable event, and
such waiver shall be the equivalent of such notice. Waivers of notice by holders of Securities
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.



     Section 13.5 Governing Law.



     This Indenture and each Security shall be deemed to be a contract made under the internal laws
of the State of New York, and for all purposes shall be construed in accordance with the laws of
said State.



     Section 13.6 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.



45









 






     Section 13.7 Compliance Certificates and Opinions.



     (a) Upon any application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with. However, in the case of any
such application or demand as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.



     (b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in this Indenture shall include (i) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(ii) 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; (iii) a statement
that, in the opinion of such Person, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such covenant or condition has
been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with. Each opinion delivered to the Trustee hereunder may
rely on the facts stated in an Officers’ Certificate delivered therewith.



     Section 13.8 Payments on Business Days.



     Except as provided pursuant to Section 2.1 pursuant to a Board Resolution, and as set
forth in an Officers’ Certificate, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or principal of any Security or the
date of redemption or repurchase of any Security shall not be a Business Day, then payment of
interest or principal (and premium, if any) (whether upon repurchase, redemption, maturity, or
otherwise) may be made on the next succeeding Business Day with the same force and effect as if
made on the nominal date of maturity, redemption, or repurchase, and no additional interest shall
accrue for the period after such nominal date.




     Section 13.9 Conflict with Trust Indenture Act.



     If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.



     Section 13.10 Counterparts.



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



     Section 13.11 Separability.



     In case any one or more of the provisions contained in this Indenture or in the Securities of
any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained herein or therein.



46









 






     Section 13.12 Assignment.



     The Company will have the right at all times to assign any of its rights or obligations under
this Indenture to a direct or indirect wholly-owned Subsidiary of the Company, provided
that, in the event of any such assignment, the Company, will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and inures to the benefit of
the parties thereto and their respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.



47









 





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



	 	 	 	 	 	 	 
	 	 	XO HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[                    ],	 	 
	 

	 	 	 	as Trustee	 	 






	 	 	 	 	 	 	 
	 

	 	By
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title: