EX-10.2






EXHIBIT 10.2




	 
	 

	MAX USA HOLDINGS LTD., as Issuer,

MAX RE CAPITAL LTD., as Guarantor

AND

THE BANK OF NEW YORK, as Trustee

                   

	 

	INDENTURE

Dated as of April 15, 2007

                   

	 







	 	 	 	 	 	 	 	 	 
	ARTICLE ONE            DEFINIT
	 	IONS                                                               1
	 	 	 	 
	Section 1.1
	 	Certain Terms Defined
	 	 	1	 
	ARTICLE TWO
	 	SECURITIES
	 	 	10	 
	Section 2.1
	 	Forms Generally
	 	 	10	 
	Section 2.2
	 	Form of Trustee’s Certificate of Authentication
	 	 	13	 
	Section 2.3
	 	Amount Unlimited; Issuable in Series
	 	 	14	 
	Section 2.4
	 	Authentication and Delivery of Securities
	 	 	16	 
	Section 2.5
	 	Execution of Securities
	 	 	17	 
	Section 2.6
	 	Certificate of Authentication
	 	 	18	 
	Section 2.7
	 	Denomination and Date of Securities; Payments of Interest
	 	 	18	 
	Section 2.8
	 	Registration, Transfer and Exchange
	 	 	19	 
	Section 2.9
	 	Mutilated, Defaced, Destroyed, Lost and Stolen Securities
	 	 	32	 
	Section 2.10
	 	Cancellation of Securities
	 	 	33	 
	Section 2.11
	 	Temporary Securities
	 	 	33	 
	Section 2.12
	 	Currency and Manner of Payments in Respect of Securities
	 	 	34	 
	Section 2.13
	 	CUSIPNumbers
	 	 	36	 
	Section 2.14
	 	Securities in Global Form
	 	 	36	 
	ARTICLE THREE
	 	COVENANTS
	 	 	37	 







	 	 	 	Section 3.1 Payment of Principal, any Premium, Interest and Additional Amounts 37	 





	 	 	 	 	 	 	 	 	 
	Section 3.2
	 	Offices for Notices and Payment, etc37
	 	 	 	 
	Section 3.3
	 	Money for Securities Payments to Be Held in Trust38
	 	 	 	 
	Section 3.4
	 	Additional Amounts39
	 	 	 	 
	Section 3.5
	 	Limitation of Liens on Stock of Restricted Subsidiaries41
	 	 	 	 
	Section 3.6
	 	Limitation on Disposition of Stock of Designated Subsidiaries41
	 	 	 	 
	Section 3.7
	 	Corporate Existence42
	 	 	 	 
	Section 3.8
	 	Waiver of Certain Covenants42
	 	 	 	 
	Section 3.9
	 	Company Statement as to Compliance; Notice of Certain Defaults42
	 	 	 	 
	Section 3.10
	 	Guarantor Statement as to Compliance; Notice of Certain Defaults43
	 	 	 	 
	ARTICLE FOUR
	 	SECURITYHOLDERS’ LISTS AND REPORTS BY THE ISSUER, GUARANTOR AND THE TRUSTEE
	 	 	44	 







	 	 	 	Section 4.1 Company and Guarantor to Furnish Trustee Information as to Names and
Addresses of Securityholders 44	 





	 	 	 	 	 	 	 	 	 
	Section 4.2
	 	Preservation and Disclosure of Securityholders’ Lists44
	 	 	 	 
	Section 4.3
	 	Reports by the Company and Guarantor45
	 	 	 	 
	Section 4.4
	 	Reports by the Trustee46
	 	 	 	 
	ARTICLE FIVE
	 	REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
	 	 	47	 







	 	 	 	Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default 47	 





	 	 	 	 	 	 	 	 	 
	Section 5.2
	 	Collection of Indebtedness by Trustee; Trustee May Prove Debt
	 	 	50	 
	Section 5.3
	 	Application of Proceeds
	 	 	52	 
	Section 5.4
	 	Suits for Enforcement
	 	 	53	 
	Section 5.5
	 	Restoration of Rights on Abandonment of Proceedings
	 	 	53	 
	Section 5.6
	 	Limitations on Suits by Securityholders
	 	 	53	 
	Section 5.7
	 	Unconditional Right of Securityholders to Institute Certain Suits
	 	 	53	 







	 	 	 	Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
54	 





	 	 	 	 	 	 	 	 	 
	Section 5.9
	 	Control by Securityholders
	 	 	54	 
	Section 5.10
	 	Waiver of Past Defaults
	 	 	54	 







	 	 	 	Section 5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances 55	 





	 	 	 	 	 	 	 	 	 
	Section 5.12
	 	Right of Court to Require Filing of Undertaking to Pay Costs
	 	 	55	 
	ARTICLE SIX
	 	CONCERNING THE TRUSTEE
	 	 	56	 







	 	 	 	Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default 56	 






	 	 	 	Section 6.2 Certain Rights of the Trustee 57	 






	 	 	 	Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof 59	 





	 	 	 	 	 	 	 	 	 
	Section 6.4
	 	Trustee and Agents May Hold Securities; Collections, etc
	 	 	59	 
	Section 6.5
	 	Moneys Held by Trustee
	 	 	59	 
	Section 6.6
	 	Compensation and Indemnification of Trustee and Its Prior Claim
	 	 	59	 







	 	 	 	Section 6.7 Right of Trustee to Rely on Officers’ Certificate, Guarantor’s Officer’s
Certificate, etc 60	 





	 	 	 	 	 	 	 	 	 
	Section 6.8
	 	Disqualification of Trustee; Conflicting Interests
	 	 	60	 
	Section 6.9
	 	Persons Eligible for Appointment as Trustee
	 	 	60	 
	Section 6.10
	 	Resignation and Removal; Appointment of Successor Trustee
	 	 	61	 
	Section 6.11
	 	Acceptance of Appointment by Successor Trustee
	 	 	62	 







	 	 	 	Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee
63	 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Section 6.13
	 	Preferential Collection of Claims Against the Company
	 	 	63	 	 	 	 	 
	Section 6.14
	 	Appointment of Co-Trustees
	 	 	64	 	 	 	 	 
	ARTICLE SEVEN
	 	CONCERNING THE SECURITYHOLDERS
	 	 	65	 	 	 	 	 
	Section 7.1
	 	Evidence of Action Taken by Securityholders
	 	 	65	 	 	 	 	 
	Section 7.2
	 	Proof of Execution of Instruments
	 	 	65	 	 	 	 	 
	Section 7.3
	 	Holders to Be Treated as Owners
	 	 	65	 	 	 	 	 
	Section 7.4
	 	Securities Owned by Company Deemed Not Outstanding
	 	 	65	 	 	 	 	 
	Section 7.5
	 	Right of Revocation of Action Taken
	 	 	66	 	 	 	 	 
	Section 7.6
	 	Record Date for Determination of Holders Entitled to Vote
	 	 	66	 	 	 	 	 
	Section 7.7
	 	Regarding the Depositary
	 	 	67	 	 	 	 	 
	ARTICLE EIGHT
	 	SUPPLEMENTAL INDENTURES
	 	 	67	 	 	 	 	 
	Section 8.1
	 	Supplemental Indentures Without Consent of Securityholders
	 	 	67	 	 	 	 	 
	Section 8.2
	 	Supplemental Indentures With Consent of Securityholders
	 	 	69	 	 	 	 	 
	Section 8.3
	 	Effect of Supplemental Indenture
	 	 	70	 	 	 	 	 
	Section 8.4
	 	Documents to Be Given to Trustee
	 	 	70	 	 	 	 	 
	Section 8.5
	 	Notation on Securities in Respect of Supplemental Indentures
	 	 	70	 	 	 	 	 
	ARTICLE NINE
	 	CONSOLIDATION, AMALGAMATION, MERGER AND SALES
	 	 	71	 	 	 	 	 
	Section 9.1
	 	Company May Consolidate, etc., on Certain Terms
	 	 	71	 	 	 	 	 
	Section 9.2
	 	Successor Corporation Substituted
	 	 	71	 	 	 	 	 
	Section 9.3
	 	Guarantor May Consolidate, Etc., Only on Certain Terms.
	 	 	72	 	 	 	 	 
	Section 9.4
	 	Successor Person Substituted for Guarantor
	 	 	73	 	 	 	 	 
	ARTICLE TEN
	 	SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
	 	 	 	 	 	 	73	 
	Section 10.1
	 	Satisfaction and Discharge of Indenture
	 	 	73	 	 	 	 	 







	 	 	 	Section 10.2 Application by Trustee of Funds Deposited for Payment of Securities 78	 





	 	 	 	 	 	 	 	 	 
	Section 10.3
	 	Repayment of Moneys Held by Paying Agent
	 	 	78	 
	Section 10.4
	 	Return of Unclaimed Moneys Held by Trustee and Paying Agent
	 	 	78	 
	Section 10.5
	 	Reinstatement of Company’s and Guarantor’s Obligations
	 	 	79	 
	Section 10.6
	 	Payments in Foreign Currencies
	 	 	79	 
	Section 10.7
	 	Indemnification Against Taxes
	 	 	79	 
	ARTICLE ELEVEN
	 	MISCELLANEOUS PROVISIONS
	 	 	80	 







	 	 	 	Section 11.1 Incorporators, Stockholders, Officers and Directors of Company and
Guarantor Exempt from Individual Liability 80	 






	 	 	 	Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders 80	 






	 	 	 	Section 11.3 Successors and Assigns of Company Bound by Indenture 80	 






	 	 	 	Section 11.4 Notices and Demands on Company, the Guarantor, Trustee and
Securityholders 80	 






	 	 	 	Section 11.5 Officers’ Certificates and Opinions of Counsel; Statements to Be
Contained Therein 81	 






	 	 	 	Section 11.6 Payments Due on Saturdays, Sundays and Holidays 82	 






	 	 	 	Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939
82	 






	 	 	 	Section 11.8 New York Law to Govern; Submission to Jurisdiction; Waiver of Trial by
Jury 82	 





	 	 	 	 	 	 	 	 	 
	Section 11.9
	 	Counterparts
	 	 	83	 
	Section 11.10
	 	Effect of Headings
	 	 	83	 
	Section 11.11
	 	Determination of Principal Amount
	 	 	83	 
	ARTICLE TWELVE
	 	REDEMPTION OF SECURITIES AND SINKING FUNDS
	 	 	84	 
	Section 12.1
	 	Applicability of Article
	 	 	84	 
	Section 12.2
	 	Notice of Redemption; Partial Redemptions
	 	 	84	 
	Section 12.3
	 	Payment of Securities Called for Redemption
	 	 	85	 







	 	 	 	Section 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption 86	 





	 	 	 	 	 	 	 	 	 
	Section 12.5
	 	Mandatory and Optional Sinking Funds
	 	 	86	 
	Section 12.6
	 	Repayment at the Option of the Holders
	 	 	88	 
	Section 12.7
	 	Optional Redemption For Tax Reasons
	 	 	88	 
	ARTICLE THIRTEEN
	 	GUARANTEE AND INDEMNITY
	 	 	89	 
	Section 13.1
	 	The Guarantee
	 	 	89	 
	Section 13.2
	 	Guarantee Unconditional, etc
	 	 	90	 
	Section 13.3
	 	Reinstatement
	 	 	90	 
	Section 13.4
	 	Subrogation
	 	 	91	 
	Section 13.5
	 	Indemnity
	 	 	91	 






1




THIS INDENTURE, dated as of April 15, 2007, among MAX USA HOLDINGS LTD., a corporation
duly organized and existing under the laws of the State of Delaware (the “Company”), MAX RE CAPITAL
LTD., a company duly organized and existing under the laws of Bermuda (the “Guarantor”) and THE
BANK OF NEW YORK, a New York banking corporation, as Trustee (the “Trustee”).



W I T N E S S E T H:




WHEREAS, the Company has duly authorized the issue from time to time of its unsecured
debentures, securities or other evidences of indebtedness to be issued in one or more Series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly authorized the execution
and delivery of this Indenture;



WHEREAS, for value received, the Guarantor has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Guarantee and the indemnity provided for herein;
and



WHEREAS, all things necessary to make this Indenture a valid indenture and agreement of each
party according to its terms have been done by each such party.



NOW, THEREFORE:



In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company, the Guarantor and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to time of the Securities as follows:



ARTICLE ONE




DEFINITIONS




SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise expressly
provided or unless the context otherwise clearly requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings specified in this Section.
All accounting terms used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and the term “generally accepted
accounting principles” means such accounting principles as are generally accepted at the time of
any computation. The words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole, as supplemented and amended from time to time, and not to any
particular Article, Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular.



“144A Global Security” means a Global Security bearing the Global Security Legend and the
Private Placement Legend and deposited with and registered in the name of the Depositary or its
nominee issued in an amount equal to the outstanding principal amount of the Securities sold for
initial resale in reliance on Rule 144A.



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



“Applicable Procedures” means, with respect to any transfer, redemption or exchange of or for
beneficial interests in any Global Security, the rules and procedures of the Depositary, Euroclear
and Clearstream that apply to such transfer, redemption or exchange.



“Authorized Newspaper” means a newspaper, in an official language of the place of publication
or in the English language, customarily published on each day that is a Business Day in the place
of publication, whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are required to be
made in Authorized Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case on any day that is
a Business Day in the place of publication.



“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” have a corresponding meaning.



“Board of Directors” means either the Board of Directors of the Company or any committee of
such Board duly authorized to act hereunder.



“Board Resolution” means a copy of one or more resolutions, 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, delivered to the Trustee.



“Business Day” means, except as may otherwise be provided in the form of Securities of any
particular Series, any day, other than a Saturday or Sunday, or other day on which banking
institutions are authorized or required by law or regulation to close in New York, New York, and,
with respect to Securities denominated in a Foreign Currency, the capital city of the country of
such Foreign Currency, or, with respect to Securities denominated in the Euro, Brussels, Belgium.



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



“Capitalized Lease Obligation” means an obligation under a lease that is required to be
capitalized for financial reporting purposes in accordance with generally accepted accounting
principles, and the amount of Indebtedness represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with such principles.



“Clearstream” means Clearstream Banking, société anonyme, and any successor thereto.



“Code” means the Internal Revenue Code of 1986, as amended.



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



“Company” means (except as otherwise provided in Article Six), the Person named as the
“Company” in the first paragraph of this instrument, and, subject to Article Nine, its successors
and assigns.



“Consolidated Net Worth” in respect of any Person means the total of the amounts shown on the
balance sheet of such Person and its consolidated Subsidiaries, determined on a consolidated basis
in accordance with GAAP, as of the end of the most recent fiscal quarter of such Person ending at
least 45 days prior to the taking of any action for the purpose of which the determination is being
made, as (i) the par or stated value of all outstanding Capital Stock of such Person plus (ii)
paid-in capital or capital surplus relating to such Capital Stock plus (iii) any retained earnings
or earned surplus, less any accumulated deficit.



“Conversion Date” has the meaning specified in Section 2.12(d).



“Conversion Event” means the cessation of use of a Foreign Currency both by the government of
the country that issued such Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community.



“Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, at the
date as of which this Indenture is dated, located at c/o The Bank of New York, 101 Barclay Street,
4E, New York, NY 10286, Attention: Global Finance Americas.



“Corporation” includes corporations and limited liability companies and, except for purposes
of Article Nine, associations, companies and business trusts.



“Currency” means any currency or currencies, including, without limitation, the Euro, issued
by the government of one or more countries or by any reorganized confederation or association of
such governments.



“Currency Determination Agent” means the New York Clearing House Bank, if any, from time to
time selected by the Company for purposes of Section 2.12.



“Custodian” means, with respect to the Securities of a Series issuable or issued in whole or
in part in global form, the Person specified pursuant to Section 2.3(b) hereof as Custodian with
respect to the Securities of such Series, and any and all successors thereto appointed as custodian
hereunder and having become such pursuant to the applicable provisions of this Indenture.



“Definitive Security” means a certificated Security Registered in the name of the Holder
thereof and issued in accordance with Section 2.6 or 2.10 hereof.



“Depositary” means, with respect to the Securities of any Series issuable or issued in the
form of one or more Global Securities, the person designated as Depositary for such Global
Securities by the Company pursuant to Section 2.3 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall
mean or include each person who is then a Depositary for such Global Securities, and if at any time
there is more than one person designated as Depositary for Global Securities of a particular
Series, “Depositary,” as used with respect to the Securities of such Series, means the Depositary
with respect to the particular Global Security or Securities; provided, that if no Depositary is
named with respect to a Series of Securities issued in the form of one or more Global Securities,
the Depositary shall be The Depository Trust Company.



“Designated Subsidiary” means any present or future consolidated Subsidiary of the Guarantor,
the Consolidated Net Worth of which constitutes at least 5% of the Consolidated Net Worth of the
Guarantor.



“Dollar” means the coin or currency of the United States of America which as of the time of
payment is legal tender for the payment of public and private debts.



“Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 2.12.



“DTC” means The Depository Trust Company.



“Euro” means the currency introduced at the start of the third stage of European economic and
monetary union pursuant to the treaty establishing the European Community.



“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear System, and any
successor thereto.



“Event of Default” means any event or condition specified as such in Section 5.1.



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



“Exchange Rate Officer’s Certificate” means a certificate setting forth (i) the applicable
Market Exchange Rate or the applicable quotation and (ii) the Dollar or Foreign Currency amounts
payable on the basis of such Market Exchange Rate or quotation in respect of the principal of and
interest on the applicable Series of Securities, signed by the treasurer or any assistant treasurer
of the Company, and delivered to the Trustee.



“Foreign Currency” means any Currency, including, without limitation, the Euro, issued by the
government of one or more countries other than the United States of America or by any recognized
confederation or association of such governments.



“Global Security Legend” means the legend set forth in Section 2.8(f)(ii), which is required
to be placed on all Global Securities issued under this Indenture.



“Global Security” means any global Security issued in accordance with Article 2 hereof.



“Government Obligations” means securities which are (i) direct obligations of the government
which issued the currency in which the Securities of a particular Series are denominated or (ii)
obligations of a Person controlled or supervised by, or acting as an agency or instrumentality of,
the government which issued the currency in which the Securities of such Series are denominated,
the payment of which obligations is unconditionally guaranteed by such government, and which, in
either case, are full faith and credit obligations of such government, are denominated in the
currency in which the Securities of such Series are denominated and which are not callable or
redeemable at the option of the issuer thereof.



“Guarantee” means the unconditional guarantee by the Guarantor of the payment of the principal
of, any premium or interest on, and any Additional Amounts with respect to the Securities and of
all obligations of the Company under this Indenture, as more fully set forth in Article 13.



“Guarantor” means (except as otherwise provided in Article Six) the Person named as the
“Guarantor” in the first paragraph of this instrument, and subject to Article Nine, its successors
and assigns.



“Guarantor Request” and “Guarantor Order” mean, respectively, a written request or order, as
the case may be, signed in the name of the Guarantor by the Chairman of the Guarantor’s Board of
Directors, a Deputy Chairman, the President, the Chief Financial Officer, the Chief Investment
Officer, the Chief Accounting Officer, the General Counsel or the Secretary, of the Guarantor, and
delivered to the Trustee.



“Guarantor’s Board of Directors” means the board of directors of the Guarantor or any
committee of that board duly authorized to act generally or in any particular respect for the
Guarantor hereunder.



“Guarantor’s Board Resolution” means a copy of one or more resolutions, certified by the
Secretary or an Assistant Secretary of the Guarantor to have been duly adopted by the Guarantor’s
Board of Directors and to be in full force and effect on the date of such certification, delivered
to the Trustee.



“Guarantor’s Officer’s Certificate” means a certificate signed by the Chairman of the
Guarantor’s Board of Directors, a Deputy Chairman, the President, the Chief Financial Officer, the
Chief Investment Officer, the Chief Accounting Officer, any Vice President, the treasurer, the
General Counsel or the Secretary of the Guarantor, that complies with the requirements of Section
11.5, if and to the extent required hereby, and is delivered to the Trustee.



“Holder,” “Holder of Securities,” “Securityholder” or other similar terms mean Registered
Holder of a Security.



“Indebtedness” means, with respect to any Person, (i) the principal of and any premium and
interest on (a) indebtedness of such Person for money borrowed and (b) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which such Person is
responsible or liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all obligations
of such Person issued or assumed as the deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing obligations (other
than obligations described in (i) through (iii) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the third Business Day following
receipt by such Person of a demand for reimbursement following payment on the letter of credit);
(v) all obligations of the type referred to in clauses (i) through (iv) of other Persons and all
dividends of other Persons for the payment of which, in either case, such Person is responsible or
liable as obligor, guarantor or otherwise; (vi) all obligations of the type referred to in clauses
(i) through (v) of other Persons secured by any Lien on any property or asset of such Person
(whether or not such obligation is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets or the amount of the obligation so
secured; and (vii) any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (i) through (vi) above.



“Indenture” means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and shall include the forms
and terms of particular Series of Securities established as contemplated hereunder.



“Indirect Participant” means a Person who holds a beneficial interest in a Global Security
through a Participant.



“interest,” when used with respect to non-interest bearing Securities, means interest payable
at Maturity and, when used with respect to a Security which provides for the payment of Additional
Amounts pursuant to Section 3.8 or otherwise, includes such Additional Amounts.



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



“Letter of Representations” has the meaning specified in Section 2.1(c)(vi).



“Lien” has the meaning specified in Section 3.5.



“Market Exchange Rate” has the meaning specified in Section 2.12(g).



“Maturity” with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as provided in or pursuant to this
Indenture, whether at the Stated Maturity or by declaration of acceleration, notice of redemption
or repurchase, notice of option to elect repayment or otherwise, and includes the Redemption Date.



“non-United States Person” means a Person other than a United States Person.



“Officer” means the chairman of the Board of Directors, the Chairman, Vice Chairman, the
president, the chief financial officer, any vice president, the treasurer, the secretary or any
assistant secretary or treasurer of the Company.



“Officers’ Certificate” means a certificate signed by the chairman of the Board of Directors
or the president or any vice president and by the treasurer or the secretary or any assistant
secretary or treasurer of the Company and delivered to the Trustee. Each such certificate shall
include the statements provided for in Section 11.5, if and to the extent required hereby.



“Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an
employee of or counsel to the Company and who shall be satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 11.5, if and to the extent required
hereby.



“Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.



“Original Issue Discount Security” means any Security which provides for an amount less than
the stated principal amount thereof to be due and payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.1.



“Outstanding” when used with reference to Securities, shall, subject to the provisions of
Sections 7.4 and 11.11, mean, as of any particular time, all Global Securities and Definitive
Securities authenticated and delivered by the Trustee under this Indenture, except



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



(b) Securities, or portions thereof, for the payment or redemption of which moneys in the
necessary amount and in the specified currency shall have been deposited in trust with the Trustee
or with any paying agent (other than the Company) or shall have been set aside, segregated and held
in trust by the Company for the holders of such Securities (if the Company shall act as its own
paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to
the Maturity thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such notice; and



(c) Securities in substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of Section 2.9 (except with respect
to any such Security as to which proof satisfactory to the Trustee and the Company is presented
that such Security is held by a person in whose hands such Security is a legal, valid and binding
obligation of the Company).



“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively, and, with respect to
DTC, shall include Euroclear and Clearstream.



“Paying Agent” means any Person (which may include the Company) authorized by the Company to
pay the principal of or interest, if any, on any Security on behalf of the Company.



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



“Place of Payment,” when used with respect to the Securities of any Series, means the place or
places where the principal of and interest, if any, on the Securities of that Series are payable as
specified pursuant to Section 3.2.



“principal” whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any.”



“Private Placement Legend” means the legend set forth in Section 2.8(f)(i) hereof to be placed
on all Securities issued under this Indenture except as otherwise permitted by the provisions of
this Indenture.



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



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



“Registered Holder” when used with respect to a Security means the person in whose name such
Security is registered in the Security Register.



“Registrar” has the meaning specified in Section 2.8(h)(i).



“Regulation S” means Regulation S promulgated under the Securities Act.



“Regulation S Global Security” means a Global Security bearing the Global Security Legend and
the Private Placement Legend and deposited with and registered in the name of the Depositary or its
nominee issued in an amount equal to the outstanding principal amount of the Securities of a Series
sold for initial resale in reliance on Rule 904 of Regulation S.



“Responsible Officer” when used with respect to the Trustee shall mean any officer assigned to
the Global Finance Americas unit (or any successor division or unit) of the Trustee located at the
Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration
of this Indenture, and for the purposes of Section 5.9, Section 5.11 and Section 6.1(b) shall also
include any other officer of the Trustee to whom any corporate trust matter is referred because of
such officer’s knowledge of and familiarity with the particular subject.



“Restricted Definitive Security” means one or more Definitive Securities bearing the Private
Placement Legend.



“Restricted Global Securities” means 144A Global Securities and Regulation S Global
Securities.



“Restricted Subsidiary” means any Subsidiary that is incorporated under the laws of any state
of the United States or of the District of Columbia except a Subsidiary (a) that has total assets
which are less than 10% of the Company’s and its consolidated Subsidiaries’ total assets (including
that Subsidiary) on the most recent fiscal year-end balance sheets of the Subsidiary and the
Company and its consolidated Subsidiaries or (b) that, in the judgment of the Board of Directors,
as evidenced by a resolution of the Board of Directors, is not material to the Company’s and its
consolidated Subsidiaries’ financial condition, taken as a whole.



“Rule 144” means Rule 144 promulgated under the Securities Act.



“Rule 144A” means Rule 144A promulgated under the Securities Act.



“Rule 903” means Rule 903 promulgated under the Securities Act.



“Rule 904” means Rule 904 promulgated under the Securities Act.



“Securities Act” means the Securities Act of 1933, as amended.



“Security” or “Securities” has the meaning stated in the first recital of this Indenture, or,
as the case may be, Securities that have been authenticated and delivered under this Indenture.



“Security Register” has the meaning specified in Section 2.8(h)(i).



“Series” or “Series of Securities” means a series of Securities. Subject to Section 2.3(c),
the Securities of a Series shall be identical.



“Stated Maturity” with respect to any Security or any installment of principal thereof or
interest thereon or any Additional Amounts with respect thereto, means the date established by or
pursuant to this Indenture or such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is, or such Additional Amounts are, due and
payable.



“Subsidiary” means any Corporation of which at least a majority of the outstanding stock
having by the terms thereof ordinary voting power to elect a majority of the board of directors of
such Corporation (irrespective of whether or not at the time stock of any other class or classes of
such Corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by the Company, or by one or
more Subsidiaries, or by the Company and one or more Subsidiaries.



“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.



“Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article Six, any successor trustee.



“United States of America” means the fifty states constituting the United States of America as
of the date of this Indenture.



“United States Person” means, unless otherwise specified with respect to any Securities
pursuant to Section 2.3, an individual who is a citizen or resident of the United States, a
Corporation, partnership or other entity created or organized in or under the laws of the United
States or an estate or trust the income of which is subject to United States federal income
taxation regardless of its source. For purposes of this definition, the term United States means
the United States of America (including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.



“Unrestricted Definitive Securities” means one or more Definitive Securities that do not and
are not required to bear the Private Placement Legend.



“Unrestricted Global Securities” means one or more Global Securities that do not and are not
required to bear the Private Placement Legend and are deposited with and registered in the name of
the Depositary or its nominee.



“Valuation Date” has the meaning specified in Section 2.12.



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



ARTICLE TWO




SECURITIES




SECTION 2.1 Forms Generally. (a) The Securities of each Series shall be
substantially in such form (not inconsistent with this Indenture) as shall be established by or
pursuant to a resolution of the Board of Directors or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture (the provisions of which shall be
appropriate to reflect the terms of each Series of Securities, including the currency or
denomination, which may be Dollars or any Foreign Currency) and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations pursuant thereto, or
with any rules of any securities exchange or to conform to general usage, all as may be determined
by the officers executing such Securities as evidenced by their execution of the Securities.



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



(b) Notwithstanding anything to the contrary contained herein, Securities of any Series issued
in a transaction exempt from or not subject to the registration requirements of the Securities Act
shall be issued initially in global form and shall contain the Global Security Legend thereon and a
“Schedule of Exchanges of Interests in the Global Security.” Each Global Security shall represent
such aggregate principal amount of the outstanding Securities of such Series as shall be specified
therein and each shall provide that it shall represent the aggregate principal amount of
outstanding Securities of such Series from time to time endorsed thereon and that the aggregate
principal amount of outstanding Securities of such Series represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions and transfers of
interests therein. Any endorsement of a Global Security to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Securities represented thereby shall be
made by the Trustee or the Custodian, at the direction of the Trustee, in connection with any
transfer of a beneficial interest therein pursuant to Section 2.8 hereof.



(c) Book-Entry Procedures.




(i) This Section 2.1(c) shall apply only to Global Securities deposited with the
Trustee, as Custodian for the Depositary. Participants and Indirect Participants shall have
no rights under this Indenture or any Global Security with respect to any Global Security
held on their behalf by the Depositary or by the Trustee as Custodian for the Depositary,
and the Depositary (or its nominee) shall be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary or impair,
as between the Depositary and its Participants or Indirect Participants, the Applicable
Procedures or the operation of customary practices of the Depositary governing the exercise
of the rights of a holder of a beneficial interest in any Global Security.




(ii) Notwithstanding any other provision of this Indenture, Securities of any Series
issued in a transaction exempt from or not subject to the registration requirements of the
Securities Act shall initially be issued in the form of one fully-registered security for
the aggregate principal amount of the Securities of such Series, which Security shall be
registered in the name of the Depositary or its nominee. Except as provided in paragraph
(e) below, all of the Securities shall be registered in the Security Register in the name of
the Depositary or its nominee; provided that if the Depositary shall request that the
Securities of such Series be registered in the name of a different nominee, the Trustee
shall exchange all or any portion of the Securities of such Series for an equal aggregate
principal amount of Securities of such Series registered in the name of such nominee or
nominees of the Depositary. No Person other than the Depositary or its nominee shall be
entitled to receive from the Company or the Trustee either a Security or any other evidence
of ownership of the Securities of such Series, or any right to receive any payment in
respect thereof, unless the Depositary or its nominee shall transfer record ownership of all
or any portion of the Securities of such Series on the Register in connection with
discontinuing the book-entry system as provided in paragraph (e) below or otherwise in
accordance with the Global Legend.




(iii) So long as any Securities of such Series are registered in the name of the
Depositary or any nominee thereof, all payments of the principal or redemption price of or
interest on such Securities shall be made to the Depositary or its nominee on the dates
provided for such payments under this Indenture. Each such payment to the Depositary or its
nominee shall be valid and effective to fully discharge all liability of the Company and the
Trustee with respect to the principal or redemption price of or interest on the Securities
of such Series to the extent of the sum or sums so paid. In the event of the redemption of
less than all of the Securities of any Series outstanding, the Trustee shall not require
surrender by the Depositary or its nominee of the Securities of such Series so redeemed, but
the Depositary (or its nominee) may retain such Securities and make an appropriate notation
on the Security certificate as to the amount of such partial redemption; provided that the
Depositary shall deliver to the Trustee, upon request, a written confirmation of such
partial redemption and thereafter the records maintained by the Trustee shall be conclusive
as to the amount of the Securities of such Series of such Maturity which have been redeemed.




(iv) The Company and the Trustee may treat the Depositary (or its nominee) as the sole
and exclusive owner of the Securities of any Series registered in its name for the purposes
of payment of the principal or redemption price of or interest on the Securities of such
Series, selecting the Securities of such Series or portions thereof to be redeemed, giving
any notice permitted or required to be given to Holders under this Indenture, registering
the transfer of Securities of such Series, obtaining any consent or other action to be taken
by Holders and for all other purposes whatsoever; and neither the Company nor the Trustee
shall be affected by any notice to the contrary. Neither the Company nor the Trustee shall
have any responsibility or obligation to any Participant or Indirect Participant, any person
claiming a beneficial ownership interest in the Securities of such Series under or through
the Depositary or any Participant or Indirect Participant, or any other person which is not
shown on the Security Register as being a Holder, with respect to (1) the Securities of such
Series, (2) the accuracy of any records maintained by the Depositary or any Participant or
Indirect Participant, (3) the payment by the Depositary or any Participant or Indirect
Participant of any amount in respect of the principal or redemption price of or interest on
the Securities of such Series, (4) any notice which is permitted or required to be given to
Holders under this Indenture, (5) the selection by the Depositary or any Participant or
Indirect Participant of any Person to receive payment in the event of a partial redemption
of the Securities of a Series, and (6) any consent given or other action taken by the
Depositary as Holder.




(v) So long as the Securities of any Series or any portion thereof are registered in
the name of the Depositary or any nominee thereof, all notices required or permitted to be
given to the Holders of such Securities under this Indenture shall be given to the
Depositary.




(vi) At or prior to settlement for the Securities of any Series subject to this Section
2.1(c), the Company and the Trustee shall execute, or signify their approval of, a letter
of representations (the “Letter of Representations”) applicable to the Securities of such
Series. Any successor Trustee shall, in its written acceptance of its duties under this
Indenture, agree to take any actions necessary from time to time to comply with the
requirements of the Letter of Representations.



(d) The provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream” and
“Customer Handbook” of Clearstream, or any successor publications, shall be applicable to transfers
of beneficial interests in Global Securities that are held by Participants through Euroclear or
Clearstream.



(e) The Company shall exchange Global Securities of any Series for Definitive Securities of
such Series if: (i) at any time the Depositary notifies the Company that it is unwilling or unable
to continue to act as Depositary for the Global Securities of such Series or if at any time the
Depositary shall no longer be eligible to act as such because it ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company shall not have appointed a
successor Depositary within 90 days after the Company receives such notice or becomes aware of such
ineligibility, (ii) the Company, at its option, determines that the Global Securities shall be
exchanged for Definitive Securities and delivers a written notice to such effect to the Trustee or
(iii) upon written request of the Depositary if an Event of Default shall have occurred and be
continuing.



Upon the occurrence of any of the events set forth in clauses (i), (ii) or (iii) of subsection
(e) above, the Company shall execute, and, upon receipt of an order in accordance with Section 2.4
hereof, the Trustee shall authenticate and deliver, Definitive Securities of such Series, in
authorized denominations, in an aggregate principal amount equal to the principal amount of the
Global Securities of such Series in exchange for such Global Securities.



Upon the exchange of a Global Security of a Series for Definitive Securities of such Series,
such Global Securities shall be cancelled by the Trustee. Definitive Securities of a Series issued
in exchange for a Global Security of such Series pursuant to this Section 2.1 shall be registered
in such names and in such authorized denominations as the Depositary, pursuant to instructions from
its Participants or its Applicable Procedures, shall instruct the Trustee in writing. The Trustee
or such agent shall deliver such Definitive Securities to or as directed in writing by the Persons
in whose names such Definitive Securities are so registered or to the Depositary.



SECTION 2.2 Form of Trustee’s Certificate of Authentication. The Trustee’s
certificate of authentication on all Securities shall be in substantially the following form:



This is one of the Securities of the Series designated herein and referred to in the
within-mentioned Indenture.



     ,



        as Trustee



By                                                    



      Authorized Signatory



[or



                                                            ,



as Authentication Agent



By                                                  



Authorized Signatory]



SECTION 2.3 Amount Unlimited; Issuable in Series. (a) The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is unlimited.



(b) The Securities may be issued in one or more Series. There shall be established in or
pursuant to a resolution of the Board of Directors and set forth in an Officers’ Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance of Securities of
any Series,




(1) the title of the Securities of the Series (which title shall distinguish the
Securities of the Series from all other Securities issued by the Company);




(2) any limit upon the aggregate principal amount of the Securities of the Series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Sections 2.8, 2.9, 2.11 or 12.3);




(3) if other than 100% of their principal amount, the percentage of their principal
amount at which the Securities of the Series will be offered;




(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, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the record dates for
the determination of Holders to whom interest and principal is payable;




(6) the place or places where the principal and interest on Securities of the Series
shall be payable (if other than as provided in Section 3.2);




(7) the price or prices at which, the period or periods within 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, pursuant to any sinking fund or otherwise;




(8) 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 pursuant to Section 5.1 or provable in bankruptcy pursuant to Section 5.2;




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




(10) if other than denominations of $1,000 and any integral multiple thereof, the
denominations, which may be in Dollars or any Foreign Currency, in which Securities of the
Series shall be issuable;




(11) the form of the Securities, including such legends as required by this Indenture,
by law or as the Company deems necessary or appropriate;




(12) whether the Securities of such Series shall be issuable or issued in the form of
one or more Global Securities and, if so, whether on what terms the Global Securities shall
be exchangeable for definitive Securities of such Series and the name of any Custodian
and/or Depositary for such Global Security;




(13) the Currency or Currencies in which payments of interest or principal and other
amounts are payable with respect to the Securities of the Series are to be denominated,
payable, redeemable or repurchasable, as the case may be;




(14) whether, and under what circumstances, the Securities of any Series shall be
convertible into Securities of any other Series;




(15) if other than the Trustee, any trustees, authenticating or paying agents,
registrars or any other agents with respect to the Securities of such Series;




(16) if the Securities of such Series do not bear interest, the applicable dates for
purposes of Section 4.1 hereof;




(17) any deletions from, modifications of or additions to the Events of Default or
covenants of the Company or the Guarantor with respect to Securities of the Series, whether
or not such Events of Default or covenants are consistent with the Events of Default or
covenants set forth herein;




(18) whether, under what circumstances and the Currency in which, the Company will pay
Additional Amounts as contemplated by Section 3.8 on the Securities of the Series to any
Holder who is a non-United States Person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities in the event such Additional Amounts
(and the terms of any such option and payable); and




(19) any other terms or conditions upon which the Securities of the Series are to be
issued (which terms shall not be inconsistent with the provisions of this Indenture).



SECTION 2.4 Authentication and Delivery of Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver Securities of any
Series executed by the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the Company, signed by
both (a) the chairman of its Board of Directors, or any vice chairman of its Board of Directors, or
its president or any vice president and (b) by its treasurer or any assistant treasurer, secretary
or any assistant secretary without any further action by the Company. 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 6.1) shall be fully
protected in relying upon:




(1) a certified copy of any resolution or resolutions of the Board of Directors
authorizing the action taken pursuant to the resolution or resolutions delivered under
clause (2) below;




(2) a copy of any resolution or resolutions of the Board of Directors relating to such
Series, in each case certified by the secretary or an assistant secretary of the Company;




(3) an executed supplemental indenture, if any;




(4) an Officers’ Certificate setting forth the form and terms of the Securities of such
Series as required pursuant to Sections 2.1 and 2.3, respectively, and prepared in
accordance with Section 11.5;




(5) an Opinion of Counsel, prepared in accordance with Section 11.5, to the effect
that:




(a) that the form or forms of such Securities have been established by or
pursuant to a resolution of the Board of Directors or by a supplemental indenture as
permitted by Section 2.1 in conformity with the provisions of this Indenture;




(b) that the terms of such Securities have been established by or pursuant to a
resolution of the Board of Directors or by an Officers’ Certificate as permitted by
Section 2.3 in conformity with the provisions of this Indenture;




(c) that such Securities have been duly authorized, and, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and binding
obligations of the Company enforceable in accordance with their terms (subject, as
to enforceability, to applicable bankruptcy, reorganization, insolvency,
conservatorship, moratorium, receivership or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of equity);




(d) the registration statement, if any, relating to the Securities of such
Series and any amendments thereto has become effective under the Securities Act of
1933 and to the best knowledge of such counsel, no stop order suspending the
effectiveness of such registration statement, as amended, has been issued and no
proceedings for that purpose have been instituted or threatened;




(e) the authentication and delivery of the Securities of such Series by the
Trustee in accordance with the directions of the Company so to do, and the Company’s
execution and delivery of the Securities of such Series, will not violate the terms
of this Indenture; and




(f) this Indenture has been qualified under the Trust Indenture Act or that it
is not necessary to qualify the Indenture under the Trust Indenture Act.



If all the Securities of any Series are not to be issued at one time, it shall not be
necessary to deliver an Opinion of Counsel and an Officer’s Certificate at the time of issuance of
each Security, but such opinion and certificate, with appropriate modifications, shall be delivered
at or before the time of issuance of the first Security of such Series. After any such first
delivery, any separate written request by an Officer of the Company or any person designated in
writing by an Officer that the Trustee authenticate and deliver Securities of such Series for
original issue will be deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such Securities continue
to have been complied with.



The Trustee shall have the right to decline to authenticate and deliver any Securities under
this Section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Company or if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under this Indenture in a manner not acceptable to
the Trustee.



Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 2.10, together with a written statement (which
need not comply with Section 11.5 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.



SECTION 2.5 Execution of Securities. The Securities shall be signed on behalf of the
Company by one Officer of the Company. Such signatures may be the manual or facsimile signatures
of the present or any future such officers. The seal of the Company may be in the form of a
facsimile thereof and may be, but shall not be required to, impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or defects in any
such reproduction of the seal or any such signature shall not affect the validity or enforceability
of any Security that has been duly authenticated and delivered by the Trustee.



In case any officer of the Company or the Guarantor who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be authenticated (in
the case of the Securities) and delivered by the Trustee or disposed of by the Company or the
Guarantor, as the case may be, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be such officer of the
Company or the Guarantor, as the case may be; and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.



SECTION 2.6 Certificate of Authentication. Only such Securities as shall bear thereon
a certificate of authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company and the Guarantor shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.



SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The Securities
shall be issuable in denominations as shall be specified as contemplated by Section 2.3. In the
absence of any such specification with respect to the Securities of any Series, the Securities of
such Series shall be issuable in denominations of $1,000 and any multiple thereof, which may be in
Dollars or any Foreign Currency, and interest shall be computed, except as may be otherwise
provided in the resolution or supplemental indenture establishing the relevant Series, on the basis
of a 360-day year of twelve 30-day months. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plan as the officers of the
Company and the Guarantor executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.



Each Security shall be dated the date of its authentication, shall bear interest from such
date and shall be payable on the dates, in each case, which shall be specified as contemplated by
Section 2.3.



Interest on any Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the person in whose name that Security (or one or more
predecessor Securities) is registered at the close of business on the regular record date for the
payment of such interest.



The term “record date” as used with respect to any Interest Payment Date (except for a date
for payment of defaulted interest) shall mean the date specified as such in the terms of the
Securities of any particular Series, or, if no such date is so specified, if such Interest Payment
Date is the first day of a calendar month, the close of business on the fifteenth day of the next
preceding calendar month or, if such Interest Payment Date is the fifteenth day of a calendar
month, the close of business on the first day of such calendar month, whether or not such record
date is a Business Day.



Any interest on any Security of any Series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (called “defaulted interest” for the purpose of
this Section) shall forthwith cease to be payable to the Registered Holder on the relevant record
date by virtue of his having been such Holder; and such defaulted interest may be paid by the
Company or the Guarantor, as the case may be, at its election in each case, as provided in clause
(1) or clause (2) below:




(1) The Company or the Guarantor, as the case may be, may elect to make payment of any
defaulted interest to the persons in whose names any such Securities (or their respective
predecessor Securities) are registered at the close of business on a special record date for
the payment of such defaulted interest, which shall be fixed in the following manner. The
Company or the Guarantor, as the case may be, shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Security of such Series and the
date of the proposed payment, and at the same time the Company or the Guarantor, as the case
may be, shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the persons entitled to such
defaulted interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such defaulted interest in respect of Securities of such
Series which shall be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company and the Guarantor of
such special record date and, in the name and at the expense of the Company or the
Guarantor, shall cause notice of the proposed payment of such defaulted interest and the
special record date thereof to be mailed, first-class postage prepaid, to each Registered
Holder at his 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 in
respect of Securities of such Series shall be paid to the person in whose names such
Securities (or their respective predecessor Securities) are registered on such special
record date and such defaulted interest shall no longer be payable pursuant to the following
clause (2).




(2) The Company or the Guarantor, as the case may be, may make payment of any defaulted
interest on the Securities of any Series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of that Series may be
listed, and upon such notice as may be required by such exchange, if, after notice given by
the Company or the Guarantor, as the case may be, to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by the Trustee.



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



SECTION 2.8 Registration, Transfer and Exchange.



(a) Transfer And Exchange of Global Securities. A Global Security may not be
transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the
Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor Depositary. Upon the
occurrence of any of the events set forth in Section 2.1(e) above, Definitive Securities shall be
issued in denominations of $1,000 in excess of $2,000 and in such names as the Depositary shall
instruct the Trustee in writing. Global Securities also may be exchanged or replaced, in whole or
in part, as provided in Sections 2.9 and 2.11 hereof. Except as provided above, every Security
authenticated and delivered in exchange for, or in lieu of, a Global Security or any portion
thereof, pursuant to this Section 2.8 or Section 2.7 or 2.11 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Security. A Global Security may not be exchanged
for another Security other than as provided in this Section 2.8(a), and beneficial interests in a
Global Security may not be transferred and exchanged other than as provided in Section 2.8(b) or
(c) hereof.



(b) Transfer and Exchange of Beneficial Interests in the Global Securities. The
transfer and exchange of beneficial interests in the Global Securities shall be effected through
the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Securities shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Securities also shall require compliance with
either clause (i) or (ii) below, as applicable, as well as one or more of the other following
clauses, as applicable:




(i) Transfer of Beneficial Interests in the Same Global Security. Beneficial
interests in any Restricted Global Security may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private Placement Legend and any
Applicable Procedures. Beneficial interests in any Unrestricted Global Security may be
transferred to Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security. Except as may be required by any Applicable Procedures, no
written orders or instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.8(b)(i).




(ii) All Other Transfers and Exchanges of Beneficial Interests in Global
Securities. In connection with all transfers and exchanges of beneficial interests that
are not subject to Section 2.8(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar (A) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be transferred or exchanged and
(B) instructions given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase. Upon satisfaction of
all of the requirements for transfer or exchange of beneficial interests in Global
Securities contained in this Indenture and the Securities or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant Global
Security(ies) pursuant to Section 2.8(h) hereof.




(iii) Transfer of Beneficial Interests in a Restricted Global Security to Another
Restricted Global Security. A holder of a beneficial interest in a Restricted Global
Security may transfer such beneficial interest to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Security if the transfer complies
with the requirements of Section 2.8(b)(ii) above and the Registrar receives the following:




(A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Security, then the transferor must deliver a certificate in the
form of Exhibit A hereto, including the certifications in item (1) thereof or, if
permitted by the Applicable Procedures, item (3) thereof; and




(B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Security, then the transferor must deliver a certificate
in the form of Exhibit A hereto, including the certifications in item (2) thereof.




(iv) Transfer or Exchange of Beneficial Interests in a Restricted Global Security
for Beneficial Interests in an Unrestricted Global Security. A holder of a beneficial
interest in a Restricted Global Security may exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Security or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security only if the exchange or transfer complies with the requirements
of Section 2.8(b)(ii) above and:




(A) the Registrar receives the following:




(1) if the holder of such beneficial interest in a Restricted Global
Security proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Security, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item (1)(a)
thereof;




or




(2) if the holder of such beneficial interest in a Restricted Global
Security proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security, a certificate from such holder in the form of
Exhibit A hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this clause (iv), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the
Registrar and the Company to the effect that such exchange or transfer complies with the
Securities Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the Securities
Act.



If any such transfer is effected pursuant to clause (ii) or (iv) above at a time when an
Unrestricted Global Security has not yet been issued, the Company shall execute and, upon receipt
of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate
one or more Unrestricted Global Securities in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests transferred pursuant to clause (ii) or (iv) above.




(v) Transfer or Exchange of Beneficial Interests in an Unrestricted Global Security
for Beneficial Interests in a Restricted Global Security Prohibited. Beneficial
interests in an Unrestricted Global Security may not be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests in a Restricted
Global Security.



(c) Transfer and Exchange of Beneficial Interests in Global Securities for Definitive
Securities.




(i) Transfer or Exchange of Beneficial Interests in Restricted Global Securities to
Restricted Definitive Securities. Subject to Section 2.8(a) hereof, if any holder of a
beneficial interest in a Restricted Global Security proposes to exchange such beneficial
interest for a Restricted Definitive Security or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive Security, then,
upon receipt by the Registrar of the following documentation:




(A) if the holder of such beneficial interest in a Restricted Global Security
proposes to exchange such beneficial interest for a Restricted Definitive Security,
a certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (2)(a) thereof;




(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit A hereto, including
the certifications in item (1) thereof;




(C) if such beneficial interest is being transferred to a “Non-U.S. Person” in
an offshore transaction (as defined in Section 902(k) of Regulation S) in accordance
with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit A
hereto, including the certifications in item (2) thereof;




(D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit A hereto,
including the certifications in item (3)(a) thereof;




(E) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit A hereto,
including the certifications in item (3)(b) thereof,




the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.8(h) hereof, the aggregate principal amount of the applicable
Restricted Global Security, and the Company shall execute and, upon receipt of an
order in accordance with Section 2.4 hereof, the Trustee shall authenticate and
deliver a Restricted Definitive Security in the appropriate principal amount to the
Person designated by the holder of such beneficial interest in the instructions
delivered to the Registrar by the Depositary and the applicable Participant or
Indirect Participant on behalf of such holder. Any Restricted Definitive Security
issued in exchange for beneficial interests in a Restricted Global Security pursuant
to this Section 2.8(c)(i) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial interest
shall designate in such instructions. The Trustee shall deliver such Restricted
Definitive Securities to the Persons in whose names such Securities are so
registered. Any Restricted Definitive Security issued in exchange for a beneficial
interest in a Restricted Global Security pursuant to this Section 2.8(c)(i) shall
bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.




(ii) Transfer or Exchange of Beneficial Interests in Restricted Global Securities
to Unrestricted Definitive Securities. Subject to Section 2.8(a) hereof, a holder of a
beneficial interest in a Restricted Global Security may exchange such beneficial interest
for an Unrestricted Definitive Security or may transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Security only if:




(A) the Registrar receives the following:




(1) if the holder of such beneficial interest in a Restricted Global
Security proposes to exchange such beneficial interest for an Unrestricted
Definitive Security, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (1)(b) thereof; or




(2) if the holder of such beneficial interest in a Restricted Global
Security proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Security, a
certificate from such holder in the form of Exhibit A hereto, including the
certifications in item (4) thereof; and, in each such case set forth in this
clause (D), if the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Registrar and the Company to the effect that such exchange or transfer
complies with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.




Upon satisfaction of any of the conditions of any of the clauses of this Section
2.8(c)(ii), the Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate and deliver an
Unrestricted Definitive Security in the appropriate principal amount to the Person
designated by the holder of such beneficial interest in instructions delivered to the
Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf
of such holder, and the Trustee shall reduce or cause to be reduced in a corresponding
amount pursuant to Section 2.8(h), the aggregate principal amount of the applicable
Restricted Global Security.




(iii) Transfer or Exchange of Beneficial Interests in Unrestricted Global
Securities to Unrestricted Definitive Securities. Subject to Section 2.8(a) hereof, if
any holder of a beneficial interest in an Unrestricted Global Security proposes to exchange
such beneficial interest for an Unrestricted Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Security, then, upon satisfaction of the applicable conditions set forth in
Section 2.8(b)(i) hereof, the Trustee shall reduce or cause to be reduced in a corresponding
amount pursuant to Section 2.8(h) hereof, the aggregate principal amount of the applicable
Unrestricted Global Security, and the Company shall execute, and, upon receipt of an order
in accordance with Section 2.4 hereof, the Trustee shall authenticate and deliver an
Unrestricted Definitive Security in the appropriate principal amount to the Person
designated by the holder of such beneficial interest in written instructions delivered to
the Registrar by the Depositary and the applicable Participant or Indirect Participant on
behalf of such holder. Any Unrestricted Definitive Security issued in exchange for a
beneficial interest pursuant to this Section 2.8(c)(iii) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such beneficial
interest shall designate in such instructions. The Trustee shall deliver such Unrestricted
Definitive Securities to the Persons in whose names such Securities are so registered. Any
Unrestricted Definitive Security issued in exchange for a beneficial interest pursuant to
this Section 2.8(c)(iii) shall not bear the Private Placement Legend.



(d) Transfer and Exchange of Definitive Securities for Beneficial Interests in the Global
Securities.




(i) Transfer or Exchange of Restricted Definitive Securities to Beneficial
Interests in Restricted Global Securities. If any holder of a Restricted Definitive
Security proposes to exchange such Restricted Definitive Security for a beneficial interest
in a Restricted Global Security or to transfer such Restricted Definitive Securities to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Security, then, upon receipt by the Registrar of the following documentation:




(A) if the holder of such Restricted Definitive Security proposes to exchange
such Restricted Definitive Security for a beneficial interest in a Restricted Global
Security, a certificate from such holder in the form of Exhibit B hereto, including
the certifications in item (2)(b) thereof;




(B) if such Restricted Definitive Security is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit A
hereto, including the certifications in item (1) thereof;




(C) if such Restricted Definitive Security is being transferred to a “non-U.S.
Person” in an offshore transaction (as defined in Rule 902(k) of Regulation S) in
accordance with Rule 903 or Rule 904, a certificate to the effect set forth in
Exhibit A hereto, including the certifications in item (2) thereof;




(D) if such Restricted Definitive Security is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit A hereto, including
the certifications in item (3)(a) thereof; or




(E) if such Restricted Definitive Security is being transferred to the Company
or any of its Subsidiaries, a certificate to the effect set forth in Exhibit A
hereto, including the certifications in item (3)(b) thereof, the Trustee shall
cancel the Restricted Definitive Security, increase or cause to be increased in a
corresponding amount pursuant to Section 2.8(h) hereof, the aggregate principal
amount of, in the case of clause (A) above, the appropriate Restricted Global
Security, in the case of clause (B) above, a 144A Global Security, and in the case
of clause (C) above, a Regulation S Global Security.




(ii) Transfer or Exchange of Restricted Definitive Securities to Beneficial
Interests in Unrestricted Global Securities. A holder of a Restricted Definitive
Security may exchange such Restricted Definitive Security for a beneficial interest in an
Unrestricted Global Security or transfer such Restricted Definitive Security to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global
Security only if:




(A) the Registrar receives the following:




(1) if the holder of such Restricted Definitive Security proposes to
exchange such Restricted Definitive Security for a beneficial interest in an
Unrestricted Global Security, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (1)(c) thereof; or




(2) if the holder of such Restricted Definitive Security proposes to
transfer such Restricted Definitive Security to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security, a certificate from such Holder in the form of Exhibit A
hereto, including the certifications in item (4) thereof; and, in each such
case set forth in this clause (D), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Company to the effect that such exchange
or transfer shall be effected in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend shall no longer be required in order to maintain compliance with the
Securities Act.



Upon satisfaction of the conditions of any of the clauses in this Section 2.8(d)(ii), the
Trustee shall cancel such Restricted Definitive Security and increase or cause to be increased in a
corresponding amount pursuant to Section 2.8(h) hereof, the aggregate principal amount of the
Unrestricted Global Security.




(iii) Transfer or Exchange of Unrestricted Definitive Securities to Beneficial
Interests in Unrestricted Global Securities. A holder of an Unrestricted Definitive
Security may exchange such Unrestricted Definitive Security for a beneficial interest in an
Unrestricted Global Security or transfer such Unrestricted Definitive Security to a Person
who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global
Security at any time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Security and increase or cause
to be increased in a corresponding amount pursuant to Section 2.8(h) hereof the aggregate
principal amount of one of the Unrestricted Global Securities.




(iv) Transfer or Exchange of Unrestricted Definitive Securities to Beneficial
Interests in Restricted Global Securities Prohibited. An Unrestricted Definitive
Security may not be exchanged for, or transferred to Persons who take delivery thereof in
the form of, beneficial interests in a Restricted Global Security.




(v) Issuance of Unrestricted Global Securities. If any such exchange or
transfer of a Definitive Security for a beneficial interest in an Unrestricted Global
Security is effected pursuant to clause (ii)(B), (ii)(D) or (iii) above at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue and, upon
receipt of an order in accordance with Section 2.4 hereof, the Trustee shall authenticate
one or more Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of Definitive Securities so transferred.



(e) Transfer and Exchange of Definitive Securities for Definitive Securities. Upon
request by a holder of Definitive Securities and such holder’s compliance with the provisions of
this Section 2.8(e), the Registrar shall register the transfer or exchange of Definitive
Securities. Prior to such registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Definitive Securities duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Company and the Registrar duly executed by such
holder. In addition, the requesting holder shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.8(e).




(i) Transfer of Restricted Definitive Securities to Restricted Definitive
Securities. Any Restricted Definitive Security may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted Definitive
Security if the Registrar receives the following:




(A) if the transfer will be made pursuant to Rule 144A, a certificate in the
form of Exhibit A hereto, including the certifications in item (1) thereof;




(B) if the transfer will be made pursuant to Rule 903 or Rule 904, a
certificate in the form of Exhibit A hereto, including the certifications in item
(2) thereof; and




(C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, a certificate in the form of
Exhibit A hereto, including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.




(ii) Transfer or Exchange of Restricted Definitive Securities to Unrestricted
Definitive Securities. Any Restricted Definitive Security may be exchanged by the holder
thereof for an Unrestricted Definitive Security or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Security only if:




(A) the Registrar receives the following:




(1) if the holder of such Restricted Definitive Security proposes to
exchange such Restricted Definitive Securities for an Unrestricted
Definitive Security, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (1)(d) thereof; or




(2) if the holder of such Restricted Definitive Securities proposes to
transfer such Restricted Definitive Securities to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Security, a
certificate from such holder in the form of Exhibit A hereto, including the
certifications in item (4) thereof;




and, in each such case set forth in this clause (A), if the Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Company and the Registrar
to the effect that such exchange or transfer complies with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.




Upon satisfaction of the conditions of any of the clauses of this Section 2.8(e)(ii),
the Trustee shall cancel the prior Restricted Definitive Security and the Company shall
execute, and upon receipt of an Authentication Order in accordance with Section 2.2 hereof,
the Trustee shall authenticate and deliver an Unrestricted Definitive Security in the
appropriate aggregate principal amount to the Person designated by the holder of such prior
Restricted Definitive Security in instructions delivered to the Registrar by such holder.




(iii) Transfer of Unrestricted Definitive Securities to Unrestricted Definitive
Securities. A holder of Unrestricted Definitive Securities may transfer such
Unrestricted Definitive Securities to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Securities pursuant to the
instructions from the holder thereof.



(f) Legends. The following legends shall appear on the face of all Global Securities
and Definitive Securities issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.




(i) Private Placement Legend.




(A) Except as permitted by clause (B) below, each Global Security and each
Definitive Security (and all Securities issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:




THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A (“RULE 144A”) UNDER THE
SECURITIES ACT), (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE PRIOR
TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(k) OF THE SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE
NOTES AND THE LAST DATE ON WHICH MAX USA HOLDINGS LTD. OR ANY “AFFILIATE” (AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF MAX USA HOLDINGS LTD. WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION DATE”) EXCEPT
(A) TO MAX USA HOLDINGS LTD., (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW
THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR
ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT MAX USA HOLDINGS LTD. AND THE TRUSTEE SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES,
BUT ONLY IF THIS NOTE IS NOT A GLOBAL SECURITY (AS DEFINED IN THE INDENTURE REFERRED
TO HEREIN), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO MAX USA
HOLDINGS LTD. AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.




(B) Notwithstanding the foregoing, any Global Security or Definitive Security
issued pursuant to clauses (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 2.8 (and all Securities issued in exchange therefor
or substitution thereof) shall not bear the Private Placement Legend.




(ii) Global Security Legend. Each Global Security shall bear a legend in
substantially the following form:




“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.8 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.8(a) OF THE INDENTURE, (III) THIS GLOBAL
SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.




UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”



(g) Cancellation and/or Adjustment of Global Securities. At such time as all
beneficial interests in a particular Global Security have been exchanged for Definitive Securities
or a particular Global Security has been redeemed, repurchased or cancelled in whole and not in
part, each such Global Security shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.10 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Security or for Definitive
Securities, the aggregate principal amount of Securities represented by such Global Security shall
be reduced accordingly and an endorsement shall be made on such Global Security by the Trustee or
by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Security, the aggregate principal amount of such
other Global Security shall be increased accordingly and an endorsement shall be made on such
Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.



(h) General Provisions Relating To Transfers And Exchanges.




(i) With respect to the Securities of each Series, the Company shall cause to be kept a
register (each such register being herein sometimes referred to as the “Security Register”)
at an office or agency for such Series in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of the Securities of such
Series and of transfers of the Securities of such Series. Such office or agency shall be
the “Registrar” for that Series of Securities. Unless otherwise specified in or pursuant to
this Indenture or the Securities, the Trustee shall be the initial Registrar for each Series
of Securities. The Company shall have the right to remove and replace from time to time the
Registrar for any Series of Securities; provided that no such removal or replacement shall
be effective until a successor Registrar with respect to such Series of Securities shall
have been appointed by the Company and shall have accepted such appointment by the Company.
In the event that the Trustee shall not be or shall cease to be Registrar with respect to a
Series of Securities, it shall have the right to examine the Security Register for such
Series at all reasonable times. There shall be only one Security Register for each Series
of Securities.




(ii) Upon surrender for registration of transfer of any Definitive Security of any
Series at any office or agency for such Series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or transferees, one
or more new Definitive Securities of the same Series denominated as authorized in or
pursuant to this Indenture, of a like aggregate principal amount bearing a number not
contemporaneously outstanding and containing identical terms and provisions.




(iii) At the option of the Holder, Definitive Securities of any Series may be exchanged
for other Definitive Securities of the same Series containing identical terms and
provisions, in any authorized denominations, and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at any office or agency for such Series.
Whenever any Definitive Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Definitive Securities which the
Holder making the exchange is entitled to receive.




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




(v) No service charge shall be made to a holder of a beneficial interest in a Global
Security or to a Holder of a Definitive Security for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than any such transfer
taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections
2.11, 8.5 and 12.3 hereof).




(vi) All Global Securities and Definitive Securities issued upon any registration of
transfer or exchange of Global Securities or Definitive Securities shall be the valid
obligations of the Company and the Guarantor, evidencing the same debt as the Global
Securities or Definitive Securities surrendered upon such registration of transfer or
exchange and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.




(vii) Neither the Registrar nor the Company shall be required (A) to issue, to register
the transfer of or to exchange any Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for redemption under Article
Twelve hereof and ending at the close of business on the date of selection, (B) to register
the transfer of or to exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part or (C) to register the
transfer of or to exchange a Security between a record date (including a regular record
date) and the next succeeding Interest Payment Date.




(viii) Prior to due presentment for the registration of transfer of any Security, the
Trustee, the Registrar, the Company may deem and treat the Person in whose name any Security
is registered as the absolute owner of such Security for the purpose of receiving payment of
principal of, and interest on such Security and for all other purposes, in each case
regardless of any notice to the contrary.




(ix) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.8 to effect a registration of transfer or
exchange must be in writing and may be submitted by facsimile.




(x) The Trustee is hereby authorized and directed to enter into a Letter of
Representations with the Depositary in the form provided by the Company and to act in
accordance with such letter.




(xi) Neither the Trustee nor the Registrar shall have any obligation or duty to
monitor, determine or inquire as to compliance with any restriction on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in
any Security (including transfers between or among beneficial owners of interests 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.



In connection with the transfer or exchange of any beneficial interest in a Global Security or
any interest in a Definitive Security, in the event the Company reasonably believes that such
transfer or exchange may violate any applicable securities laws, the Trustee may require an Opinion
of Counsel in form reasonably acceptable to the Trustee and the Company to the effect that such
exchange or transfer complies with the Securities Act and, if applicable, that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.



SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen,
the Company in its discretion may execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and deliver, a new Security of the same Series, bearing a
number not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced
Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every
case the applicant for a substitute Security shall furnish to the Company, the Guarantor and the
Trustee and to any agent of the Company, the Guarantor or the Trustee such security or indemnity as
may be required by them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.



Upon the issuance of any substitute 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 which has matured or is about to mature or has been called for redemption in full
shall become mutilated or defaced 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 or defaced Security) if the applicant for such payment shall
furnish to the Company, the Guarantor and the Trustee and any agent of the Company, the Guarantor
or the Trustee such security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company,
the Guarantor and the Trustee and any agent of the Company, the Guarantor or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of the ownership
thereof.



Every substitute Security of any Series issued pursuant to the provisions of this Section by
virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company and the Guarantor, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the
benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such Series duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the express condition that, to
the extent permitted by the law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude 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 2.10 Cancellation of Securities. All Securities surrendered for payment,
redemption, registration of transfer or exchange, or for credit against any payment in respect of a
sinking or analogous fund, shall, if surrendered to the Company, the Guarantor or any agent of the
Company, the Guarantor or the Trustee, 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 permitted by any of the provisions of this Indenture. The Trustee
shall dispose cancelled Securities in accordance with its customary procedures. If the Company
shall acquire any of the Securities, 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 2.11 Temporary Securities. Pending the preparation of definitive Securities
for any Series, the Company may execute and the Trustee shall authenticate and deliver temporary
Securities for such Series (printed, lithographed, typewritten or otherwise reproduced, in each
case in form satisfactory to the Trustee). Temporary Securities of any Series may be issued in any
authorized denomination, and substantially in the form of the definitive Securities of such Series
but with such omissions, insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Company with the concurrence of the Trustee. Temporary Securities
may contain such reference to any provisions of this Indenture as may be appropriate. Every
temporary Security 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. Without unreasonable delay the Company shall execute and shall furnish definitive
Securities of such Series and thereupon temporary Securities of such Series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by the Company for that
purpose pursuant to Section 3.2, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such Series a like aggregate principal amount of definitive Securities
of the same Series of authorized denominations. Until so exchanged, the temporary Securities of
any Series shall be entitled to the same benefits under this Indenture as definitive Securities of
such Series.



SECTION 2.12 Currency and Manner of Payments in Respect of Securities.



(a) With respect to Securities of any Series with respect to which the Holders of such
Securities have not made the election provided for in paragraph (b) below, the following payment
provisions shall apply:




(1) Except as provided in subparagraph (a)(2), in paragraph (b) or in paragraph (e)
below or in the Securities of any particular Series, payment of the principal of any
Security will be made at the Place of Payment by delivery of a check in the Currency in
which the Security is denominated on the payment date against surrender of such Security,
and any interest on any Security will be paid at the Place of Payment by mailing a check in
the Currency in which the Securities were issued to the Person entitled thereto at the
address of such Person appearing on the Register.




(2) Payment of the principal of and interest on such Security may also, subject to
applicable laws and regulations, be made at such other place or places as may be designated
by the Company by any appropriate method.



(b) With respect to Securities of any Series, the following payment provisions shall apply,
except as otherwise provided in paragraphs (e) and (f) below:




(1) The Board of Directors may provide with respect to any Series of such Securities
that Holders shall have the option to receive payments of principal of and interest on such
Security in any of the Currencies which may be designated for such election in such Security
by delivering to the Trustee a written election, to be in form and substance satisfactory to
the Trustee, not later than the close of business on the record date immediately preceding
the applicable payment date. Such election will remain in effect for such Holder until
changed by the Holder by written notice to the Trustee (but any such change must be made not
later than the close of business on the record date immediately preceding the next payment
date to be effective for the payment to be made on such payment date and no such change may
be made with respect to payments to be made on any Security with respect to which notice of
redemption has been given by the Company pursuant to Article Twelve). Any Holder of any
such Security who shall not have delivered any such election to the Trustee not later than
the close of business on the applicable record date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in paragraph (a) of this
Section 2.12. Payment of principal shall be made on the payment date against surrender of
such Securities. Payment of principal and interest shall be made at the Place of Payment by
mailing a check in the applicable currency to the Person entitled thereto at the address of
such Person appearing on the Security Register. The provisions of Sections 2.12(c), (d),
(e), (f), (g) and (h) are applicable only if the Board of Directors has provided with
respect to a series that Holders should have the option to elect to receive payments of
principal and interest in currencies designated in that election.




(2) Payment of the principal of and interest on such Security may also, subject to
applicable laws and regulations, be made at such other place or places as may be designated
by the Company by any appropriate method.



(c) Not later than the fourth Business Day after the record date for each payment date, the
Trustee will deliver to the Company a written notice specifying, in the Currency in which each
Series of the Securities are denominated, the respective aggregate amounts of principal of and
interest on the Securities to be made on such payment date, specifying the amounts so payable in
respect of the Securities as to which the Holders shall have elected to be paid in another Currency
as provided in paragraph (b) above. If the Board of Directors has provided for the election
referred to in paragraph (b) above and if at least one Holder has made such election, then not
later than the second Business Day preceding such record date the Company will deliver to the
Trustee an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency
payments to be made on such payment date. The Dollar or Foreign Currency amount receivable by
Holders of Securities who have elected payment in another Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the “Valuation Date”) prior to such payment date and set forth
in the applicable Exchange Rate Officer’s Certificate.



(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the
Securities are denominated or payable, then with respect to each date for the payment of principal
of and interest on the applicable Foreign Currency denominated Securities occurring after the last
date on which the Foreign Currency was so used (the “Conversion Date”), the Dollar shall be the
currency of payment for use on each such payment date. The Dollar amount to be paid by the Company
to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with
respect to such payment date shall be, in the case of a Foreign Currency, the Dollar Equivalent of
the Foreign Currency as determined by the Currency Determination Agent in the manner provided in
paragraphs (g) or (h) below.



(e) If the Holder of a Security elects payment in a specified Currency as provided for by
paragraph (b) and a Conversion Event occurs with respect to such elected Currency, such Holder
shall receive payment in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which payment would have
been made in the absence of such election, such Holder shall receive payment in Dollars.



(f) The “Dollar Equivalent of the Foreign Currency” shall be determined by the Currency
Determination Agent as of each Valuation Date and shall be obtained by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.



(g) For purposes of this Section 2.12 the following term shall have the following meaning:




“Market Exchange Rate” shall mean for any currency the noon Dollar buying rate for that
currency for cable transfers quoted in New York City on the Valuation Date as certified for
customs purposes by the Federal Reserve Bank of New York. If such rates are not available
for any reason with respect to one or more Currencies for which an exchange rate is
required, the Currency Determination Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York City or in the
country of issue of the currency in question, or such other quotations as the Currency
Determination Agent shall deem appropriate. Unless otherwise specified by the Currency
Determination Agent, if there is more than one market for dealing in any currency by reason
of foreign exchange regulations or otherwise, the market to be used in respect of such
currency shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of such
securities.



All decisions and determinations of the Currency Determination Agent regarding the Dollar
Equivalent of the Foreign Currency and the Market Exchange Rate as specified above shall be in its
sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company, the Guarantor and the Trustee for the relevant Series of
Securities and all Holders of such Securities.



In the event that a Conversion Event has occurred with respect to a Foreign Currency, the
Company, after learning thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in Section 11.4 to the affected
Holders) specifying the Conversion Date.



The Trustee shall be fully justified and protected in relying on and acting upon the
information so received by it from the Company and the Currency Determination Agent and shall not
otherwise have any duty or obligation to determine such information independently.



SECTION 2.13 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” or
“ISIN” numbers (if then generally in use), and, if so, the Trustee shall indicate the “CUSIP” or
“ISIN” numbers of the Securities in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of
redemption and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” or “ISIN”
numbers.



SECTION 2.14 Securities in Global Form. If Securities of or within a Series are
issuable in whole or in part in global form, any such Security may provide that it shall represent
the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby, shall be made in such manner and by such Person or
Persons as shall be specified therein or in the Company order to be delivered to the Trustee
pursuant to Section 2.4 or, if applicable, 2.8 or 2.11. Subject to the provisions of Section 2.4
and, if applicable, Section 2.8 or 2.11, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company order. Any instructions by the Company with respect to
endorsement or deliver or redelivery of a Security in global form shall be in writing but need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel.



The provisions of the second paragraph of Section 2.4 shall apply to any Security in global
form if such Security was never issued and sold by the Company and the Company delivers to the
Trustee the Security in global form together with written instructions (which need not comply with
Section 11.5 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in
the principal amount of Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 2.4.



Notwithstanding the provisions of Section 3.1, unless otherwise specified as contemplated by
Section 2.4, payment of principal of and interest on any Security in permanent global form shall be
made to the Person or Persons specified in such Security.



ARTICLE THREE




COVENANTS




SECTION 3.1 Payment of Principal, any Premium, Interest and Additional Amounts. The
Company covenants and agrees for the benefit of each Series of Securities that it will duly and
punctually pay or cause to be paid (in the currency in which the Securities of such Series are
payable, except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and
except as provided in Section 2.12(b), (d) and (e) hereof) the principal of, any premium and
interest on, if any, and any Additional Amounts, if any, with respect to, each of the Securities of
such Series in accordance with the terms of the Securities of such Series and this Indenture.



SECTION 3.2 Offices for Notices and Payment, etc. So long as any of the Securities
remain outstanding, the Company and the Guarantor shall maintain the following for each Series: an
office or agency (a) where the Securities may be presented or surrendered for payment, (b) where
the Securities may be presented for registration of transfer and for exchange as in this Indenture
provided and (c) where notices and demands to or upon the Company or the Guarantor in respect of
the Securities or of this Indenture may be served. The Company or the Guarantor will give to the
Trustee written notice of the location of any such office or agency and of any change of location
thereof. In case the Company or the Guarantor shall fail to so designate or maintain any such
office or agency or shall fail to give such notice of the location or of any change in the location
thereof, presentations, surrenders and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee. Unless otherwise specified pursuant to Section 2.3, the
Trustee is appointed Paying Agent and Registrar to receive all such presentations, surrenders,
notices and demands.



The Company and the Guarantor may also from time to time designate one or more other offices
or agencies where the Securities of one or more Series may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company or the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for Securities of any Series
for such purposes. The Company and the Guarantor shall give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or
agency. Unless otherwise provided in or pursuant to this Indenture, the Company and the Guarantor
hereby designate as the Place of Payment for each Series of Securities the Borough of Manhattan,
The City of New York, and initially appoint the Corporate Trust Office of the Trustee as the office
or agency of the Company in the Borough of Manhattan, The City of New York for such purpose. The
Company and the Guarantor may subsequently appoint a different office or agency in the Borough of
Manhattan, The City of New York for the Securities of any Series.



Unless otherwise specified with respect to any Securities pursuant to Section 2.3, if and so
long as the Securities of any Series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such Series of Securities, or as so
required, at least one exchange rate agent.



SECTION 3.3 Money for Securities Payments to Be Held in Trust. If the Company shall
at any time act as its own Paying Agent, or if the Guarantor shall act as Paying Agent, with
respect to any Series of Securities, it shall, on or before each due date of the principal of, any
premium, interest on, if any, or Additional Amounts, if any, with respect to, any of the Securities
of such Series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum
in the currency or currencies, currency unit or units or composite currency or currencies in which
the Securities of such Series are payable (except as otherwise specified pursuant to Section 2.3
for the Securities of such Series) sufficient to pay the principal or any premium, interest or
Additional Amounts so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so
to act.



Whenever the Company shall have one or more Paying Agents for any Series of Securities, it
shall, on or prior to each due date of the principal of, any premium or interest on, if any, or
Additional Amounts, if any, with respect to, any Securities of such Series, deposit with any Paying
Agent a sum (in the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal or any premium,
interest or Additional Amounts so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.



The Company shall cause each Paying Agent for any Series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent shall:




(1) hold all sums held by it for the payment of the principal of, any premium or
interest on, if any, or Additional Amounts, if any, with respect to Securities of such
Series in trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as provided in or pursuant to this Indenture;




(2) give the Trustee notice of any default by the Company or the Guarantor (or any
other obligor upon the Securities of such Series) in the making of any payment of principal,
any premium or interest on, if any, or Additional Amounts, if any, with respect to the
Securities of such Series; and




(3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



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



Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee
or any Paying Agent, or then held by the Company or the Guarantor, in trust for the payment of the
principal of, any premium or interest on, if any, or Additional Amounts, if any, with respect to,
any Security of any Series and remaining unclaimed for two years after such principal or any such
premium or interest or any such Additional Amounts shall have become due and payable shall be paid
to the Company on Company Request (or if deposited by the Guarantor, paid to the Guarantor on
Guarantor Request), or (if then held by the Company or the Guarantor) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company and the Guarantor for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may, but shall not be required to, at the expense of the
Company and the Guarantor cause to be published once, in an Authorized Newspaper in each Place of
Payment for such Series or to be mailed to Holders of Registered Securities of such Series, or
both, notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing nor shall it be later
than two years after such principal and any premium or interest or Additional Amounts shall have
become due and payable, any unclaimed balance of such money then remaining will be repaid to the
Company or the Guarantor, as the case may be.



SECTION 3.4 Additional Amounts. If any taxes, assessments or other governmental
charges are imposed by the jurisdiction, other than the United States, where the Guarantor or a
successor (a “Payor”) is organized or otherwise considered to be a resident for tax purposes, any
jurisdiction, other than the United States, from or through which the Payor makes a payment on the
Securities of any Series, or, in each case, any political organization or governmental authority
thereof or therein having the power to tax (the “Relevant Tax Jurisdiction”) in respect of any
payments under the Securities of such Series, the Payor shall pay to each Holder of any such
Security, to the extent it may lawfully do so, such additional amounts (“Additional Amounts”) as
may be necessary in order that the net amounts paid to such Holder will be not less than the amount
specified in such Security to which such holder is entitled; provided, however, the Payor shall not
be required to make any payment of Additional Amounts for or on account of:



(a) any tax, assessment or other governmental charge which would not have been imposed but for
(i) the existence of any present or former connection between such Holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such
Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant
Tax Jurisdiction including, without limitation, such Holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof
or being or having been present or engaged in a trade or business therein or having or having had a
permanent establishment therein or (ii) the presentation of a Security (where presentation is
required) for payment on a date more than 30 days after (x) the date on which such payment became
due and payable or (y) the date on which payment thereof is duly provided for, whichever occurs
later;



(b) any estate, inheritance, gift, sales, transfer, personal property or similar tax,
assessment or other governmental charge;



(c) any tax, assessment or other governmental charge which is payable otherwise than by
withholding from payment of (or in respect of) principal of, premium, if any, or any interest on,
the Securities of such Series;



(d) any tax, assessment or other governmental charge that is imposed or withheld by reason of
the failure by the Holder or the beneficial owner of the Securities of such Series to comply with a
request of the Payor addressed to the Holder to provide information, documents or other evidence
concerning the nationality, residence or identity of the Holder or such beneficial owner which is
required by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as
a precondition to exemption from all or part of such tax, assessment or other governmental charge;
or



(e) any combination of the above;



nor will Additional Amounts be paid with respect to any payment of the principal of, or any premium
or interest on, any Securities of such Series to any Holder who is a fiduciary or partnership or
limited liability company or other than the sole beneficial owner of such payment to the extent
such payment would be required by the laws of the Relevant Tax Jurisdiction to be included in the
income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of
such partnership, limited liability company or beneficial owner who would not have been entitled to
such Additional Amounts had it been the Holder of such Securities.



The Payor shall provide the Trustee with the official acknowledgment of the relevant tax
authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the
payment of the withholding taxes by the Payor. Copies of such documentation shall be made
available to the holders of the Securities of such Series or the paying agent, as applicable, upon
request therefor.



Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium or interest on, or in respect of, any Security of any Series or the net proceeds
received on the sale or exchange of any Security of any Series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms of such Series
established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express mention is not made.



Except as otherwise provided in or pursuant to this Indenture or the Securities of the
applicable Series, at least 10 days prior to the first Interest Payment Date with respect to such
Series of Securities (or if the Securities of such Series shall not bear interest prior to
Maturity, the first day on which a payment of principal is made), and at least 10 days prior to
each date of payment of principal or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish to the
Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officers’
Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and premium, if any, or interest on, if any, and Additional Amounts, if any, with
respect to the Securities of such Series shall be made to Holders of Securities of such Series who
are United States Aliens without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of such Series. If any such withholding shall be
required, then such Officers’ Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities, and the Company agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any of them in reliance
on any Officers’ Certificate furnished pursuant to this Section 3.4.



SECTION 3.5 Limitation of Liens on Stock of Restricted Subsidiaries. So long as any
Securities are Outstanding, neither the Company nor the Guarantor will, nor will it permit any of
their respective Subsidiaries to, create, assume, incur, guarantee or otherwise permit to exist any
Indebtedness secured by any mortgage, pledge, lien, security interest or other encumbrance (a
“Lien”) upon any shares of Capital Stock of any Restricted Subsidiary (whether such shares of stock
are now owned or hereafter acquired) without effectively providing concurrently that the Securities
(and, if the Company and the Guarantor so elect, any other Indebtedness of the Company that is not
subordinate to the Securities and with respect to which the governing instruments require, or
pursuant to which the Company is otherwise obligated, to provide such security) shall be secured
equally and ratably with such Indebtedness for at least the time period such other Indebtedness is
so secured.



SECTION 3.6 Limitation on Disposition of Stock of Designated Subsidiaries. So long as
any Securities are outstanding and except in a transaction otherwise governed by this Indenture,
neither the Company nor the Guarantor will issue, sell, assign, transfer or otherwise dispose of
any shares of, securities convertible into, or warrants, rights or options to subscribe for or
purchase shares of, Capital Stock (other than Preferred Stock having no voting rights) of any
Designated Subsidiary, and will not permit any Designated Subsidiary (other than to the Company or
the Guarantor) to issue any shares (other than the director’s qualifying shares and Preferred Stock
having no voting rights) of, or securities convertible into, or warrants, rights or options to
subscribe for or purchase shares of, Capital Stock (other than Preferred Stock having no voting
rights) of any Designated Subsidiary, if, after giving effect to any such transaction and the
issuance of the maximum number of shares issuable upon the conversion or exercise of all such
convertible securities, warrants, rights or options, the Company or the Guarantor, as the case may
be, would own, directly or indirectly, less than 80% of the shares of Capital Stock of such
Designated Subsidiary (other than Preferred Stock having no voting rights); provided, however, that
(i) the foregoing shall not prevent any issuance, sale, assignment, transfer or other disposition
by the Company or the Guarantor if the consolidation is at least a fair market value as determined
in good faith by the Guarantor’s Board of Directors pursuant to a Guarantor’s Board Resolution and
(ii) the foregoing shall not prohibit any such issuance or disposition of securities if required by
any law or any regulation or order of any governmental or insurance regulatory authority.
Notwithstanding the foregoing, (i) the Company or the Guarantor, as the case may be, may merge or
consolidate any Designated Subsidiary into or with another direct or indirect Subsidiary of the
Guarantor, the shares of capital stock of which the Guarantor owns directly or indirectly at least
80%, and (ii) the Company or the Guarantor, as the case may be, may, subject to the provisions of
Article Nine, sell, assign, transfer or otherwise dispose of the entire Capital Stock of any
Designated Subsidiary at one time for at least a fair market value consideration as determined in
good faith by the Guarantor’s Board of Directors pursuant to a Guarantor’s Board Resolution.



SECTION 3.7 Corporate Existence. Subject to Article Nine, the Company and the
Guarantor shall do or cause to be done all things necessary to preserve and keep in full force and
effect their respective corporate existences and that of each of their respective Subsidiaries and
their respective rights (charter and statutory) and franchises; provided, however, that the
foregoing shall not obligate the Company or the Guarantor or any of their respective Subsidiaries
to preserve any such existence (other than the Company or the Guarantor), right or franchise if the
Company, the Guarantor or any such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company or the Guarantor and its
Subsidiaries taken as a whole and that the loss thereof is not disadvantageous in any material
respect to any Holder.



SECTION 3.8 Waiver of Certain Covenants. The Company or the Guarantor, as the case
may be, may omit in any particular instance to comply with any term, provision or condition set
forth in Section 3.5, 3.6 or 3.7 with respect to the Securities of any Series if before the time
for such compliance the Holders of at least a majority in aggregate principal amount at Maturity of
the Outstanding Securities of such Series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective, the obligations of
the Company and the Guarantor and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.



SECTION 3.9 Company Statement as to Compliance; Notice of Certain Defaults.




(1) The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement (which need not be contained in or accompanied
by an Officer’s Certificate) signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
stating that




(a) a review of the activities of the Company during such year and of
its performance under this Indenture has been made under his or her
supervision, and




(b) to the best of his or her knowledge, based on such review, (a) the
Company has complied with all the conditions and covenants imposed on it
under this Indenture throughout such year, or, if there has been a default
in the fulfillment of any such condition or covenant, specifying each such
default known to him or her and the nature and status thereof, and (b) no
event has occurred and is continuing which is, or after notice or lapse of
time or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him and the
nature and status thereof.




(2) The Company shall deliver to the Trustee, within five days after the
occurrence thereof, written notice of any Event of Default or any event which after
notice or lapse of time or both would become an Event of Default pursuant to clause
(c) of Section 5.1.




(3) The Trustee shall have no duty to monitor the Company’s compliance with the
covenants contained in this Article Three other than as specifically set forth in
this Section 3.9.



SECTION 3.10 Guarantor Statement as to Compliance; Notice of Certain Defaults.




(1) The Guarantor shall deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement (which need not be contained in or
accompanied by a Guarantor’s Officer’s Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Guarantor, stating that




(a) a review of the activities of the Guarantor during such year and of
performance under this Indenture has been made under his or her supervision,
and




(b) to the best of his or her knowledge, based on such review, (a) the
Guarantor has complied with conditions and covenants imposed on it under
this Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default
known to him or her and the nature and status thereof, and (b) no event has
occurred and is continuing which constitutes, or which after notice or lapse
of time or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him and the
nature and status thereof.




(2) The Guarantor shall deliver to the Trustee, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of time
or both would become an Event of Default pursuant to clause (c) of Section 5.1.




(3) The Trustee shall have no duty to monitor the Guarantor’s compliance with
the covenants contained in this Article Three.



ARTICLE FOUR




SECURITYHOLDERS’ LISTS AND REPORTS BY THE




ISSUER, GUARANTOR AND THE TRUSTEE




SECTION 4.1 Company and Guarantor to Furnish Trustee Information as to Names and Addresses
of Securityholders. The Company and the Guarantor each covenants and agrees that they will
furnish or cause to be furnished to the Trustee for the Securities of each Series a list in such
form as the Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each Series:



(a) semi-annually and not more than 15 days after each record date for the payment of interest
on such Securities, as hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing securities in each year, and



(b) at such other times as the Trustee may request in writing, within 30 days after receipt by
the Company or the Guarantor of any such request such list to be as of a date not more than 15 days
prior to the time such information is furnished,



provided, that if and so long as the Trustee shall be the Registrar for such Series, such
list shall not be required to be furnished.



SECTION 4.2 Preservation and Disclosure of Securityholders’ Lists. (a) The Trustee
for the Securities of each Series shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of each Series of
Securities contained in the most recent list furnished to it as provided in Section 4.1 or
maintained by the Trustee in its capacity as Registrar for such Series, if so acting. The Trustee
may destroy any list furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.



(b) In case three or more Holders of Securities of any Series (hereinafter referred to as
“applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to communicate with other
Holders of Securities of a particular Series (in which case the applicants must all hold Securities
of such Series) or with Holders of all Securities with respect to their rights under this Indenture
or under such Securities and such application is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election, either




(i) afford to such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section 4.2, or




(ii) inform such applicants as to the approximate number of Holders of Securities of
such Series or all Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section.



If the Trustee shall elect not to afford to such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Securityholder of such
Series or all Securities, as the case may be, whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this
Section, a copy of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing, unless within five
days after such tender, the Trustee shall mail to such applicants and file with the Commission
together with a copy of the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such Series or all Securities, as the case may be, or could be in violation of
applicable law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of
such order sustaining one or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such Securityholders with
reasonable promptness after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants respecting their
application. If the Commission shall refuse to accept the filing by the Trustee because the
Company is not subject to the ongoing reporting requirements of Section 13 of 15(d) of the Exchange
Act or otherwise, or otherwise communicates to the Company, the applicants or the Trustee that it
does not have jurisdiction over the matter, the Trustee shall mail copies of such material to all
such Securityholders with reasonable promptness after such refusal or communication.



(c) Each and every Holder of Securities, by receiving and holding the same, agrees with the
Company, the Guarantor and the Trustee that none of the Company, the Guarantor, the Trustee or any
agent of the Company, the Guarantor or the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders of Securities in
accordance with the provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under such subsection (b).



SECTION 4.3 Reports by the Company and Guarantor. The Guarantor or the Company, if
the Company is no longer a subsidiary of the Guarantor, covenants:



(a) to file with the Trustee for the Securities of each Series, within 15 days after the
Company or the Guarantor, as the case may be, is required to file the same with the Commission,
copies of the annual reports and of the information, documents, and other reports (or copies of
such portions of any of the foregoing as the Commissioner may from time to time by rules and
regulations prescribe) which the Company or the Guarantor, as the case may be, may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act, or if the
Company or the Guarantor, as the case may be, is not required to file information, documents, or
reports pursuant to either of such Sections, then to file with the Trustee and the Commission, in
accordance with applicable rules and regulations, if any, prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents, and reports which may be
required pursuant to Section 13 of the Exchange Act, or in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to time in such rules
and regulations;



(b) to file with the Trustee and the Commission, in accordance with applicable rules and
regulations, if any, prescribed from time to time by the Commission, such additional information,
documents, and reports with respect to compliance by the Company or the Guarantor, as the case may
be, with the conditions and covenants provided for in this Indenture as may be required from time
to time by such rules and regulations; and



(c) to transmit by mail to the Holders of Securities, as the names and addresses of such
holders appear upon the Security Register, in the manner required by Section11.4, 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 or the Guarantor, as the case may be, pursuant to
subsection (a) and (b) of this Section as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission.



Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s or the Guarantor’s compliance with any of their respective covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers’ Certificates).



SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act, if applicable, at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days
after each May 15 following the date of this Indenture deliver to Holders a brief report, dated as
of such May 15, which complies with the provisions of such Section 313(a).



(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange, if any, upon which the Securities are listed, with the
Commission, the Company and the Guarantor. The Company or the Guarantor, as the case may be, will
promptly notify the Trustee when the Securities are listed on any stock exchange and of any
delisting thereof.



ARTICLE FIVE




REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS




ON EVENT OF DEFAULT




SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default. In
case one or more of the following Events of Default (unless it is either inapplicable to a
particular Series or it is specifically deleted from or modified in the instrument establishing
such Series and the form of Security for such Series) shall have occurred and be continuing with
respect to any Series of Securities:



(a) default in the payment of any installment of interest upon any Security of such Series, or
any Additional Amounts payable with respect thereto, as and when such interest becomes or such
Additional Amounts become due and payable, and continuance of such default for a period of 30 days;
or



(b) default in the payment of the principal of or any premium on any Security of such Series,
or any Additional Amounts payable with respect thereto, when such principal or premium becomes or
such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking
fund payment or otherwise), by declaration or otherwise; or



(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe
or perform any other of the covenants or agreements on the part of the Company or the Guarantor in
this Indenture, as the case may be, in the Securities of such Series, or in this Indenture
contained and relating to such Series, for a period of 60 days after the date on which written
notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to
remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been
given by registered or certified mail to the Company or the Guarantor, as the case may be, by the
Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series
at the time Outstanding; or



(d) if any event of default as defined in any mortgage, indenture or instrument under which
there may be issued, or by which there may be secured or evidenced, any Indebtedness of the
Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of
Default under any other Series of Securities), whether such Indebtedness now exists or shall
hereafter be created or incurred, shall happen and shall consist of default in the payment of more
than $10,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving
effect to any applicable grace period) or shall result in such Indebtedness in principal amount in
excess of $10,000,000 becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, and such default shall not be cured or such acceleration
shall not be rescinded or annulled within a period of 30 days after there shall have been given, by
registered or certified mail, to the Company and the Guarantor by the Trustee or to the Company,
the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at
Maturity of the Outstanding Securities of such Series, a written notice specifying such event of
default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or
annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice
of Default” hereunder; or



(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge
any uninsured judgment or court order for the payment of money in excess of $10,000,000, which is
not stayed on appeal or is not otherwise being appropriately contested in good faith; or



(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and
effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s
obligations under the Guarantee; or



(g) the entry by a court having competent jurisdiction of:




(i) a decree or order for relief in respect of the Company, the Guarantor or any of its
Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization (other than a reorganization under a foreign law that does not
relate to insolvency) or other similar law and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or




(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated
Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a
reorganization under a foreign law that does not relate to insolvency), arrangement,
adjustment or composition of the Company, the Guarantor or any of its Designated
Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or




(iii) a final and non-appealable order appointing a custodian, receiver, liquidator,
assignee, trustee or other similar official of the Company, the Guarantor or any of its
Designated Subsidiaries of any substantial part of the property of the Company, the
Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of
the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or



(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a
voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a
reorganization under a foreign law that does not relate to insolvency) or other similar law or of a
voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the
Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an
involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any insolvency proceedings against it, or the filing by the Company,
the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its
Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or
any of its Designated Subsidiaries to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of
the Company, the Guarantor or any of its Designated Subsidiaries or any substantial part of the
property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the
Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of
creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated
Subsidiaries in furtherance of any such action; or



(i) any other Event of Default provided in the Supplemental Indenture or resolution of the
Board of Directors under which such Series of Securities is issued or in the form of Security for
such Series;



then and in each and every such case (other than an Event of Default under clause (g) and (h)
above), so long as such Event of Default with respect to such Series shall not have been remedied
or waived, unless the principal of all Securities of such Series shall have already become due and
payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice
in writing to the Company (and to the Trustee if given by such Holders), may declare the principal
(or, in the case of Original Issue Discount Securities, such principal amount as may be determined
in accordance with the terms thereof) of all the Securities of such Series to be due and payable
immediately, and upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such Series contained to the contrary
notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above,
the principal of all Securities of such Series shall become immediately due and payable without any
declaration or other act by the Trustee or the Holders. This provision, however, is subject to the
condition that if at any time after the principal of the Securities of such Series (or, in the case
of Original Issue Discount Securities, such principal amount as may be determined in accordance
with the terms thereof) shall have been so declared due and payable, and if recission would not
conflict with any judgment or decree of a court of competent jurisdiction, the Company or the
Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in
which the Securities of such Series are payable (except as otherwise provided pursuant to Section
2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e)
hereof) all matured installments of interest, if any, upon all the Securities of such Series and
the principal of any and all Securities of such Series which shall have become due otherwise than
by such acceleration (with interest upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, upon overdue installments of interest, at the rate
borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at
the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall
be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel
and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents,
attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of
the principal of Securities of such Series which shall have become due by such acceleration, shall
have been cured or waived, then and in every such case the Holders of at least a majority in
aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by
written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may
waive all defaults and rescind and annul such declaration and its consequences; but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.



SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The
Company and the Guarantor each covenants that (a) in case default shall be made in the payment of
any installment of interest on or any Additional Amounts any of the Securities of any Series when
such interest or Additional Amounts shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the payment of all or any
part of the principal of any of the Securities of any Series when such interest on or any
Additional Amounts shall have become due and payable, whether upon Maturity of the Securities of
such Series or upon any redemption or by declaration or otherwise, then upon demand of the Trustee
for the Securities of such Series, the Company or the Guarantor, as the case may be, will pay to
the Trustee for the Securities of such Series for the benefit of the Holders of the Securities of
such Series the whole amount that then shall have become due and payable on all Securities of such
Series for principal of or interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest and Additional Amounts at the same rate as the
rate of interest specified in the Securities of such Series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee.



Until such demand is made by the Trustee, the Company or the Guarantor, as the case may be,
may pay the principal of, interest on, and any Additional Amounts the Securities of any Series to
the persons entitled thereto, whether or not the principal of and interest on the Securities of
such Series are overdue.



In case the Company or the Guarantor, as the case may be, shall fail forthwith to pay such
amounts upon such demand, the Trustee for the Securities of such Series, 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 proceedings to judgment or final decree, and may enforce any such judgment or final
decree against the Company or the Guarantor, as the case may be, or other obligor upon such
Securities and collect in the manner provided by law out of the property of the Company, the
Guarantor or any other obligor upon such Securities, wherever situated, the moneys adjudged or
decreed to be payable.



In case there shall be pending proceedings relative to the Company, the Guarantor or any other
obligor upon the Securities under Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have
been appointed for or taken possession of the Company, the Guarantor or their respective properties
or such other obligor, or in case of any other comparable judicial proceedings relative to the
Company, the Guarantor or other obligor under the Securities of any Series, if any, or to the
creditors or property of the Company, the Guarantor or any such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:



(a) to file and prove a claim or claims for the whole amount of principal (or, if the
Securities of such Series are Original Issue Discount Securities, such portion of the principal
amount as may be due and payable with respect to the Securities of such Series pursuant to a
declaration in accordance with Section 5.1 hereof), any premium, interest and Additional Amounts
owing and unpaid in respect of the Securities of any Series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee,) and of the
Securityholders allowed in any judicial proceedings relative to the Company, the Guarantor or any
other obligor upon all Securities of any Series, or to the creditors or property of the Company,
the Guarantor or any such other obligor,



(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of
the Securities of any Series in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing
similar functions in comparable proceedings, and



(c) to collect and receive any moneys or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect to the claims of the Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Holders to make payments to the Trustee for
the Securities of such Series, and, in the event that such Trustee shall consent to the making of
payments directly to the Securityholders, to pay to such Trustee such amounts as shall be
sufficient to cover reasonable compensation to such Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by such Trustee and each predecessor Trustee and all other amounts due to such
Trustee or any predecessor Trustee pursuant to Section 6.6.



Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of any 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 except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.



All rights of action and of asserting claims under this Indenture, or under any of the
Securities, may be enforced by the Trustee for the Securities of such Series without the possession
of any of the Securities of such Series or the production thereof at any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment, subject to the payment
of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities
in respect of which such action was taken.



In any proceedings brought by the Trustee for the Securities of such Series (and also any
proceedings involving the interpretation of any provision of this Indenture to which the Trustee
shall be a party), the Trustee shall be held to represent all the Holders of the Securities in
respect to which such action was taken, and it shall not be necessary to make any Holders of such
Securities parties to any such proceedings.



SECTION 5.3 Application of Proceeds. Any moneys collected by the Trustee for the
Securities of such Series pursuant to this Article in respect of the Securities of any Series and
any money or other property distributable in respect of the Company’s or the Guarantor’s
obligations under this Indenture after the occurrence of an Event of Default shall be applied in
the following order at the date or dates fixed by such Trustee and, in case of the distribution of
such moneys on account of principal, interest or Additional Amounts upon presentation of the
several Securities in respect of which moneys have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such Series in reduced principal amounts in
exchange for the presented Securities of like Series if only partially paid, or upon surrender
thereof if fully paid:




FIRST: To the payment of costs and expenses applicable to such Series in respect of
which moneys have been collected, including compensation to the Trustee and each predecessor
Trustee and their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section 6.6;




SECOND: In case the principal of the Securities of such Series in respect of which
moneys have been collected shall not have become and be then due and payable, to the payment
of interest on the Securities of such Series in default in the order of the Maturity of the
installments of such interest and any Additional Amounts, with interest and any Additional
Amounts (to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of interest specified in such
Securities, such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;




THIRD: In case the principal of the Securities of such Series in respect of which
moneys have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of such Series for
principal, interest and Additional Amounts, with interest upon the overdue principal, and
(to the extent that payment of such interest is permissible by law and that such interest
has been collected by the Trustee) upon overdue installments of interest at the same rate as
the rate of interest specified in the Securities of such Series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities
of such Series, then to the payment of such principal, interest and Additional Amounts
without preference or priority of principal over interest or of interest over principal, or
of any installment of interest over any other installment of interest, or of any Security of
such Series over any other Security of such Series, ratably to the aggregate of such
principal and accrued and unpaid interest; and




FOURTH: To the payment of the remainder, if any, to the Company, the Guarantor or any
other person lawfully entitled thereto.



SECTION 5.4 Suits for Enforcement. In case an Event of Default has occurred, has not
been waived and is continuing, 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 effectual 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 this 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.



SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In case the Trustee
for the Securities of any Series shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case the Company, the Guarantor and the
Trustee shall be restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Guarantor, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.



SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any Security of any
Series shall have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under
or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate
principal amount at Maturity of the Securities of such Series then Outstanding shall have made
written request upon the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity, as it may require
against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 5.9; it being understood and intended, and
being expressly covenanted by the taker and Holder of every Security with every other taker and
Holder of a Security and the Trustee, that no one or more Holders of Securities of any Series shall
have any right in any manner whatever, by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other such Holder of 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 the applicable Series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.



SECTION 5.7 Unconditional Right of Securityholders to Institute Certain Suits.
Notwithstanding any provision in this Indenture and any provision of any Security, the right of any
Holder of any Security to receive payment of the principal of and interest on such Security at the
respective rates, in the respective amount and in the Currency therein prescribed on or after the
respective due dates expressed in such Security, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.



SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except as provided in Sections 2.9 or 5.6, no right or remedy herein conferred upon or reserved to
the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.



No delay or omission of the Trustee or of any Securityholder 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 Event of Default or an acquiescence
therein; and, subject to Sections 2.9 or 5.6, every power and remedy given by this Indenture or by
law to the Trustee, or to the Securityholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee, or the Securityholders.



SECTION 5.9 Control by Securityholders. The Holders of a majority in aggregate
principal amount at Maturity of the Securities of each Series affected (with each Series treated as
a separate class) at the time Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to the Securities of such Series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law and the provisions
of this Indenture and provided further that (subject to the provisions of Section 6.1) the Trustee
shall have the right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if
the Trustee in good faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the action or proceedings
so directed would involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all Series so affected not
joining in the giving of said direction, it being understood that (subject to Section 6.1) the
Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.



Nothing in this Indenture shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction or directions by
Securityholders.



SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of the acceleration of
the Maturity of the Securities of any Series as provided in Section 5.1, the Holders of not less
than a majority in aggregate principal amount at Maturity of the Securities of such Series at the
time Outstanding may on behalf of the Holders of all the Securities of such Series waive any past
default hereunder or its consequences, except a default in the payment of the principal of or
interest on or any Additional Amounts with respect to, any of the Securities of such Series (unless
the conditions specified in the last paragraph of Section 5.1 have been fully satisfied). In the
case of any such waiver, the Company, the Guarantor, the Trustee, 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.



Upon any such waiver, such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured
and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereon.



SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall transmit to the Securityholders of any Series notice in the
manner and to the extent provided in Section 11.4, of all defaults known to the Trustee to have
occurred with respect to such Series (as provided in Section 6.2(h)), such notice to be transmitted
within 90 days after the occurrence thereof, unless such defaults shall have been cured before the
giving of such notice (the term “default” or “defaults” for the purposes of this Section being
hereby defined to mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); provided that, except in the case of default in the payment of
the principal of, interest on or any Additional Amounts with respect to, any of the Securities of
such Series or any default in the payment of any sinking fund installment or analogous obligation
in respect of any of the Securities of such Series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee, or a trust committee
of directors or trustees or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such Series.



SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs. All
parties to this Indenture agree, and each Holder of any Security by his acceptance thereof, shall
be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders
of any Series holding in the aggregate more than 10% in aggregate principal amount at Maturity of
the Securities of such Series, or, in the case of any suit relating to or arising under clause (d)
of Section 5.1 (if the suit relates to Securities of more than one but less than all Series), 10%
in aggregate principal amount at Maturity of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clause (d) (if the suit under clause (d) relates to
all the Securities then Outstanding), (e), (f) or (g) of Section 5.1, 10% in aggregate principal
amount of all Securities Outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of, interest on or any Additional Amounts with respect
to, any Security on or after the due date expressed in such Security.



ARTICLE SIX




CONCERNING THE TRUSTEE




SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default. (a) With respect to the Holders of any Series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a
particular Series and after the curing or waiving of all Events of Default which may have occurred
with respect to such Series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with respect to the
Securities of a Series has occurred (which has not been cured or waived) of which a Responsible
Officer has actual knowledge, the Trustee shall exercise 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) Prior to the occurrence of an Event of Default with respect to the Securities of any
Series and after the curing or waiving of all such Events of Default with respect to such Series
which may have occurred:




(i) the duties and obligations of the Trustee with respect to the Securities of any
Series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable 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 or negligence on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any such
statements, certificates or opinions which 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;



(c) 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:




(i) this Subsection shall not be construed to limit the effect of the Subsections (a),
(b) or (d) of this Section;




(ii) 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; and




(iii) 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 pursuant to
Section 5.9 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.



(d) 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 shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.



(e) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the conditions of this Section 6.1.



SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:



(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, Officers’ Certificate, Guarantor’s Officer’s Certificate or any
other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;



(b) any request, direction, order or demand of the Company or of the Guarantor mentioned
herein shall be sufficiently evidenced by an Officers’ Certificate or the Guarantor’s Officer’s
Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors or the Guarantor’s Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the secretary or any assistant secretary of the Company or
the Guarantor, as the case may be;



(c) the Trustee may consult with counsel of its selection and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in reliance on such advice or Opinion of
Counsel;



(d) the Trustee shall be under no obligation to exercise any of the rights, trusts or powers
vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which
might be incurred therein or thereby;



(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers conferred upon it by
this Indenture;



(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;



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



(h) the Trustee shall not be deemed to have notice or be charged with knowledge of any default
or Event of Default unless a Responsible Officer has received written notice from the Company, the
Guarantor or any Holder of such default or Event of Default at the Corporate Trust Office of the
Trustee and such notice references the Securities and this Indenture and identifies each such
default or Event of Default;



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



(j) the Trustee may request that the Company or the Guarantor deliver an Officers’ Certificate
or Guarantor’s Officer’s Certificate, respectively, 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 or Guarantor’s Officer’s Certificate, as the case may be, may be signed
by any person authorized to sign an Officers’ Certificate or Guarantor’s Officer’s Certificate, as
the case may be, including any person specified as so authorized in any such certificate previously
delivered and not superseded;



(k) no provision of this Indenture shall be deemed to impose any duty or obligation on the
Trustee to perform any act or acts, receive or obtain any interest in property or exercise any
interest in property, or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts, to receive or
obtain any such interest in property or to exercise any such right, power, duty or obligation; and
no permissive or discretionary power or authority available to the Trustee shall be construed to be
a duty;



(l) 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; and



(m) 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, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics;
riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or
communication services; accidents; labor disputes; acts of civil or military authority and
governmental action.



SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustee’s
certificate of authentication, shall be taken as the statements of the Company or the Guarantor, as
the case may be, and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by the Company or the
Guarantor, as the case may be, of any of the Securities or of the proceeds thereof.



SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. The Trustee,
any Paying Agent, Registrar, or any agent of the Company, the Guarantor or the Trustee, 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 the Trustee or such agent and, subject to Sections 6.8 and
6.13, if operative, may otherwise deal with the Company or the Guarantor, as the case may be, and
receive, collect, hold and retain collections from the Company or the Guarantor, as the case may
be, with the same rights it would have if it were not the Trustee or such agent.



SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section 10.4 hereof,
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
except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company, the Guarantor or the Trustee shall be under any liability for interest on any moneys
received by it hereunder.



SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim. The
Company and the Guarantor, covenant and agree to pay in Dollars to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in writing between the
Company or the Guarantor, as the case may be, and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust) and the Company
and the Guarantor covenant and agree to pay or reimburse in Dollars the Trustee and each
predecessor Trustee upon its request for all expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture (including the
compensation and the expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as may arise from its
negligence or bad faith. Each of the Company and the Guarantor also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes based on the income of the
Trustee), incurred without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or investigating any claim
(whether asserted by the Company, the Guarantor, a Holder or any other Person) of liability in the
premises. The obligations of the Company and the Guarantor under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of the Securities and this
Indenture, the termination for any reason of this Indenture, or the resignation or removal of the
Trustee. Such additional indebtedness shall be a senior claim 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, and the Securities are hereby subordinated to such
senior claim.



When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or other similar law.



“Trustee” for purposes of this Section shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.



SECTION 6.7 Right of Trustee to Rely on Officers’ Certificate, Guarantor’s Officer’s
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts 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 any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad
faith on the part of the Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate or Guarantor’s Officer’s Certificate, as the case may be, complying with
Section 11.5 delivered to the Trustee, and such certificate, in the absence of bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted
by it or under the provisions of this Indenture upon the faith thereof.



SECTION 6.8 Disqualification of Trustee; Conflicting Interests. If the Trustee for
the Securities of any Series has or shall acquire any “conflicting interest,” as defined in the
Trust Indenture Act, it shall, within 90 days after ascertaining that it has such conflicting
interest, and if the default (as defined in the Trust Indenture Act) to which such conflicting
interest relates has not been cured or waived or otherwise eliminated before the end of such 90-day
period, the Trustee shall, either eliminate such conflicting interest or resign in the manner and
with the effect specified in the Trust Indenture Act and this Indenture.



SECTION 6.9 Persons Eligible for Appointment as Trustee. The Trustee for each Series
of Securities hereunder shall at all times be a Corporation organized and doing business under the
laws of the United States of America or of any State or the District of Columbia having a combined
capital and surplus of at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal, state 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, 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. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.



SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee. (a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one
or more or all Series of Securities by giving written notice of resignation to the Company and the
Guarantor and by mailing notice thereof to the Holders in the manner and to the extent provided in
Section 11.4. Upon receiving such notice of resignation, the Company or the Guarantor, as the case
may be, shall promptly appoint a successor trustee or trustees with respect to the applicable
Series by written instrument in duplicate, executed by authority of the Board of Directors or the
Guarantor’s Board of Directors, as the case may be, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any Series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning trustee may petition,
at the expense of the Company and the Guarantor, any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable Series for at least six months may, subject to the
provisions of Section 5.12, 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 of the following shall occur:




(i) the Trustee shall fail to comply with the provisions of Section 6.8 with respect to
any Series of Securities after written request therefor by the Company, the Guarantor or by
any Securityholder who has been a bona fide Holder of a Security or Securities of such
Series for at least six months unless the Trustee’s duty to resign is stayed in accordance
with the provisions of Section 310(b) of the Trust Indenture Act; or




(ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.9 and shall fail to resign after written request therefor by the Company, the
Guarantor or by any Securityholder; or




(iii) the Trustee shall become incapable of acting with respect to any Series of the
Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;



then, in any such case, the Company or the Guarantor may remove the Trustee with respect to the
applicable Series of Securities and appoint a successor trustee for such Series by written
instrument, in duplicate, executed by order of the Board of Directors of the Company or the
Guarantor’s Board of Directors, as the case may be, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.12, any Securityholder who has been a bona fide Holder of a Security or Securities of
such Series for at least six months may on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee with respect to such Series. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.



(c) The Holders of a majority in aggregate principal amount of the Securities of each Series
at the time Outstanding may at any time remove the Trustee with respect to Securities of such
Series and such Holders shall provide promptly to the Company and the Guarantor the evidence
provided for in Section 7.1 of the action in that regard taken by the Securityholders. In such an
event and upon receipt of such evidence, the Company or the Guarantor will appoint a successor
trustee with respect to the Securities of such Series by delivering to the Trustee so removed, and
to the successor trustee so appointed such evidence received from the Holders.



If no successor Trustee shall have been appointed with respect to such Series within 30 days
after the mailing of such notice of removal, the Trustee being removed may petition, at the expense
of the Company and the Guarantor, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such Series.



(d) Any resignation or removal of the Trustee with respect to any Series and any appointment
of a successor trustee with respect to such Series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.



SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any successor trustee
appointed as provided in Section 6.10 shall execute and deliver to the Company, the Guarantor and
to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any applicable Series
shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all rights, powers, duties and obligations with respect to such Series of
its predecessor hereunder, with like effect as if originally named as trustee for such Series
hereunder; but, nevertheless, on the written request of the Company, of the Guarantor or of the
successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall,
subject to Section 10.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing for more fully and certainly vesting in
and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section 6.6.



If a successor trustee is appointed with respect to the Securities of one or more (but not
all) Series, the Company, the Guarantor, the predecessor Trustee and each successor trustee with
respect to the Securities of any applicable Series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any Series as to which the predecessor Trustee is not retiring shall continue
to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that each such trustee
shall be trustee of a trust or trusts under separate indentures.



No successor trustee with respect to any Series of Securities shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.8 and eligible under the provisions of Section 6.9.



Upon acceptance of appointment by any successor trustee as provided in this Section 6.11, the
Company or the Guarantor, as the case may be, shall give notice in the manner and to the extent
provided in Section 11.4 to the Holders of Securities of any Series for which such successor
trustee is acting as trustee at their last addresses as they shall appear in the Security Register.
If the acceptance of appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice called for by Section
6.10. If the Company fails to mail such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of
the Company and the Guarantor.



SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee.
Any Corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any Corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
that such Corporation shall be qualified under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9, 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 at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any Series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any Series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Securities of such Series or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities of any Series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or consolidation.



SECTION 6.13 Preferential Collection of Claims Against the Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act, if such act shall then
be applicable to this Indenture, regarding the collection of claims against the Company or the
Guarantor (or any such other obligor).



SECTION 6.14 Appointment of Co-Trustees. At any time or times, for the purpose of
meeting the legal requirements of any jurisdiction in which any collateral may at the time be
located, or if the Trustee is unable or unwilling to execute any documents in a jurisdiction in
which any collateral may at any time be located or hold or enforce the rights of the secured
parties thereunder, each of the Company and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least twenty-five per centum (25%) in
aggregate principal amount of the Notes then Outstanding, the Company shall for such purpose join
with the Trustee in the execution and delivery of all instruments and agreements necessary or
proper to appoint, one or more Persons approved by the Trustee and, if no Event of Default shall
have occurred and be continuing, by the Company either to act as co-trustee, jointly with the
Trustee, of all or any part of any collateral, or to act as separate trustee of any such property,
in either case with such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons, in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the Company does not
join in such appointment within fifteen (15) days after the receipt by it of a request so to do, or
if an Event of Default shall have occurred and be continuing, the Trustee alone shall have power to
make such appointment.



Should any written instrument or instruments from the Company and the Guarantor be required by any
co-trustee or separate trustee so appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Company and the Guarantor.



Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent
only, be appointed subject to the following conditions:



(a) The Securities shall be authenticated and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;



(b) The rights, powers, duties and obligations hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in which any particular act is
to be performed the Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by such co-trustee or
separate trustee;



(c) The Trustee at any time, by an instrument in writing executed by it, with the concurrence
of the Company and the Guarantor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an Event of Default shall have occurred and
be continuing, the Trustee shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Company. Upon the written request of
the Trustee, the Company and the Guarantor shall join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or removed may be appointed
in the manner provided in this Section;



(d) Neither the Trustee nor any co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee hereunder; and



(e) Any Act of Holders delivered to the Trustee shall be deemed to have been delivered to each
such co-trustee and separate trustee.



ARTICLE SEVEN




CONCERNING THE SECURITYHOLDERS




SECTION 7.1 Evidence of Action Taken by Securityholders.



(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in principal amount of
the Securityholders of any or all Series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such specified percentage of Securityholders
in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in
favor of the Trustee, the Company and the Guarantor, if made in the manner provided in this
Article.



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



SECTION 7.2 Proof of Execution of Instruments. The execution of any instrument by a
Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.



SECTION 7.3 Holders to Be Treated as Owners. The Company, the Guarantor, the Trustee
and any agent of the Company, the Guarantor or the Trustee may deem and treat the person in whose
name any Security shall be registered upon the Security Register for such Series as the absolute
owner of such Security (whether or not such Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving payment of or on
account of the principal of, interest on, and any Additional Amounts with respect to, such Security
and for all other purposes; and neither the Company, the Guarantor, the Trustee nor any agent of
the Company, the Guarantor or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Security.



SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In determining
whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or
all Series have concurred in any direction, consent or waiver under this Indenture or whether a
quorum is present at a meeting of Holders of Securities, Securities which are owned by the Company,
the Guarantor or any other obligor on the Securities with respect to which such determination is
being made or by any person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company, the Guarantor or any other obligor on the Securities with
respect to which such determination is being made 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, consent or waiver, and for
purposes of determining the presence of a quorum, only Securities which a Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any
person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company, the Guarantor or any other obligor on the Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of any of the above-described
persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such
Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that
all Securities not listed therein are Outstanding for the purpose of any such determination.



SECTION 7.5 Right of Revocation of Action Taken. At any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the Securities of any or all Series, as
the case may be, specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided in this Article, 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 Securities issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate principal amount of the Securities of
any or all Series, as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Guarantor, the Trustee and the Holders of all
the Securities affected by such action.



SECTION 7.6 Record Date for Determination of Holders Entitled to Vote. The Company
may, in the circumstances permitted by the Trust Indenture Act, if applicable, set a record date
for the purpose of determining the Securityholders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Securityholders. If there is to be a record date
and no such record date has been set by the Company prior to the first solicitation of a
Securityholder made by any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided pursuant to Section 4.1)
prior to such first solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly appointed proxies) shall be entitled to give or take, or
vote on, the relevant action.



SECTION 7.7 Regarding the Depositary. None of the Trustee, the Paying Agent or the
Registrar shall have any responsibility or obligation to any beneficial owner in a Global Security,
any member of or 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, with respect to any ownership
interest in the Securities or with respect to the delivery to any Participant, beneficial owner or
other Person (other than the Depositary) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Securities. All notices and communications to
be given to the Securityholders and all payments to be made to Holders under the Securities and
this Indenture shall be given or made only to or upon the order of the registered Holders (which
shall be the Depositary or its nominee in the case of the Global Security). The rights of
beneficial owners in the Global Security shall be exercised only through the Depositary subject to
the applicable procedures. The Trustee, the Paying Agent and the Registrar shall be entitled to
rely and shall be fully protected in relying upon information furnished by the Depositary with
respect to its members, participants and any beneficial owners. The Trustee, the Paying Agent and
the Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is the
registered Holder of any Global Security for all purposes of this Indenture relating to such Global
Security (including the payment of principal, premium, if any, and interest and additional amounts,
if any, and the giving of instructions or directions by or to the owner or holder of a beneficial
ownership interest in such Global Security) as the sole Holder of such Global Security and shall
have no obligations to the beneficial owners thereof. None of the Trustee, the Paying Agent or the
Registrar shall have any responsibility or liability for any acts or omissions of the Depositary
with respect to such Global Security, for the records of any such depositary, including records in
respect of beneficial ownership interests in respect of any such Global Security, for any
transactions between the Depositary and any Participant or between or among the Depositary, any
such Participant and/or any holder or owner of a beneficial interest in such Global Security, or
for any transfers of beneficial interests in any such Global Security.



ARTICLE EIGHT




SUPPLEMENTAL INDENTURES




SECTION 8.1 Supplemental Indentures Without Consent of Securityholders. The Company
(when authorized by a resolution of its Board of Directors), the Guarantor (when authorized by a
Guarantor’s Board Resolution) and the Trustee for the Securities of an effected Series 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 of 1939, if such act shall then be applicable
to the Indenture, as in force at the date of the execution thereof), in form satisfactory to such
Trustee, and applicable to a particular Series of Securities or all Series of Securities
outstanding or to be outstanding hereunder for one or more of the following purposes:



(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more Series any property or assets;



(b) to evidence the succession of another Corporation to the Company or the Guarantor, or
successive successions, and the assumption by the successor Corporation of the covenants,
agreements and obligations of the Company or the Guarantor, as the case may be, pursuant to Article
Nine;



(c) to add to the covenants of the Company or the Guarantor, as the case may be, such further
covenants, restrictions, conditions or provisions as its Board of Directors and the Trustee shall
consider to be for the protection of the Holders of Securities of any or all Series and, if such
additional covenants are to be for the benefit of less than all the Series of Securities stating
that such covenants are being added solely for the benefit of such Series, and to make the
occurrence, or the occurrence and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth (and if such additional
Events of Default are to be for the benefit of less than all Series of the Securities stating that
such Events of Default are being added solely for the benefit of such Series); provided, that in
respect of any such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon
such an Event of Default or may limit the right of the Holders of not less than a majority in
aggregate principal amount at Maturity of the Securities of such Series to waive such an Event of
Default;



(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture; or to make such other provisions in regard to matters or
questions arising under this Indenture or under any supplemental indenture as the Board of
Directors or the Guarantor’s Board of Directors may deem necessary or desirable and which shall not
materially and adversely affect the interests of the Holders of the Securities;



(e) to establish the form or terms of Securities of any Series as permitted by Sections 2.1
and 2.3;



(f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more Series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than the one Trustee, pursuant to the requirements of Section 6.11; or



(g) for the issuance of a different Series of Securities; provided, that prior to the issuance
of any such different Series, a supplemental indenture may change any provision of this Indenture
applicable only to such Series.



Any amendment described in clause (d) above made solely to conform this Indenture or the
Securities of a particular Series to the final offering memorandum or other disclosure document
provided to investors in connection with the initial offering of such Securities by the Company
will not be deemed to adversely affect the interests of the Holders in any respect.



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



Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 8.2.



SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With the consent
(evidenced as provided in Article Seven) of the Holders of not less than a majority in aggregate
principal amount at Maturity of the Securities at the time Outstanding of each Series affected by
such supplemental indenture (treated as one class), the Company, when authorized by a resolution of
its Board of Directors, the Guarantor, when authorized by a Guarantor’s Board Resolution and the
Trustee for such Series of Securities 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 of 1939, if such act shall then be applicable to the Indenture, as in force at the
date of execution thereof) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such Series; provided,
that no such supplemental indenture shall (a) extend the final Maturity of any Security of such
Series, or reduce the principal amount thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or impair or affect the right
of any Securityholder of such Series to institute suit for payment thereof or (b) reduce the
aforesaid percentage of Securities of any such Series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders of each Security
of such Series so affected.



Upon the request of the Company or the Guarantor, accompanied by a copy of a resolution of the
Board of Directors or by a copy of a Guarantor’s Board Resolution, certified by the secretary or an
assistant secretary of the Company or the Guarantor, as the case may be, authorizing the execution
of any such supplemental indenture, and upon the filing with the Trustee for such Series of
Securities of evidence of the consent of Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee for such Series of Securities shall join with the Company and
the Guarantor in the execution of such supplemental indenture unless such supplemental indenture
affects such Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which
case such Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.



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



Promptly after the execution by the Company, the Guarantor and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Company and the Guarantor shall give
notice in the manner and to the extent provided in Section 11.4 to the Holders of Securities of
each Series affected thereby at their addresses as they shall appear on the Security Register,
setting forth in general terms the substance of such supplemental indenture. Any failure of the
Company or the Guarantor to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.



For the purposes of this Section 8.2 only, if the Securities of any Series are issuable upon
the exercise of warrants, each holder of an unexercised and unexpired warrant with respect to such
Series shall be deemed to be a Holder of Outstanding Securities of such Series in the amount
issuable upon the exercise of such warrant. For such purposes, the ownership of any such warrant
shall be determined by the Company and the Guarantor in a manner consistent with customary
commercial practices. The Trustee for such Series shall be entitled to rely on an Officers’
Certificate or a Guarantor’s Officer’s Certificate as to the principal amount of Securities of such
Series in respect of which consents shall have been executed by holders of such warrants.



SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and 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, the Guarantor and the
Holders of Securities of each 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 8.4 Documents to Be Given to Trustee. The Trustee, subject to the provisions
of Sections 6.1 and 6.2, shall receive an Officers’ Certificate or Guarantor’s Officer’s
Certificate, as the case may be, and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the applicable
provisions of this Indenture.



SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures. Securities
of any Series authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear, upon the direction of the Company, a notation
for the Securities of such Series as to any matter provided for by such supplemental indenture or
as to any action taken at any such meeting. If the Company or the Trustee shall so determine, new
Securities of any Series so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in exchange for the
Securities of such Series then Outstanding.



ARTICLE NINE




CONSOLIDATION, AMALGAMATION, MERGER AND SALES




SECTION 9.1 Company May Consolidate, etc., on Certain Terms. The Company shall not
consolidate or amalgamate with or merge into any other Person (whether or not affiliated with the
Company), or convey, transfer or lease its properties and assets as an entirety or substantially as
an entirety to any other Person (whether or not affiliated with the Company), and the Company shall
not permit any other Person (whether or not affiliated with the Company) to consolidate or
amalgamate with or merge into the Company or convey, transfer or lease its properties and assets as
an entirety or substantially as an entirety to the Company; unless:



(a) in case the Company shall consolidate or amalgamate with or merge into another Person or
convey, transfer or lease its properties and assets as an entirety or substantially as an entirety
to any Person, the Person formed by such consolidation or amalgamation or into which the Company is
merged or the Person, if not the Company, which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company as an entirety or substantially as an entirety
shall be a Corporation organized and existing under the laws of the United States of America or any
state thereof or the District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental hereto, executed by the
successor Person and the Guarantor and delivered to the Trustee the due and punctual payment of the
principal of, any premium and interest on and any Additional Amounts with respect to all the
Securities and the performance of every obligation in this Indenture and the Outstanding Securities
on the part of the Company to be performed or observed, provided, that, unless such person is a
Corporation, a corporate co-issuer will be added to the Securities and this Indenture by a
supplemental indenture;



(b) immediately after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default or
event which, after notice or lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing; and



(c) either the Company or the successor Person shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.



SECTION 9.2 Successor Corporation Substituted. In case of any such consolidation,
merger, conveyance, transfer, sale or lease and following such an assumption by the successor
Person or Persons, such successor Person or Persons shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein. Such successor Corporation may cause
to be signed, and may issue either in its own name or in the name of the Company prior to such
succession any or all of the Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such successor
Corporation instead of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities, which
previously shall have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor Corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.



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



In the event of any such sale or conveyance (other than a conveyance by way of lease) the
Company or any successor Person or Persons which shall theretofore have become such in the manner
described in this Article shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.



SECTION 9.3 Guarantor May Consolidate, Etc., Only on Certain Terms.



The Guarantor shall not consolidate or amalgamate with or merge into any other Person (whether
or not affiliated with the Guarantor), or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any other Person (whether or not affiliated with the
Guarantor), and the Guarantor shall not permit any other Person (whether or not affiliated with the
Guarantor) to consolidate or amalgamate with or merge into the Guarantor or convey, transfer or
lease its properties and assets as an entirety or substantially as an entirety to the Guarantor;
unless:




(1) in case the Guarantor shall consolidate or amalgamate with or merge into another
Person or convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any Person, the Person formed by such consolidation or
amalgamation or into which the Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the Guarantor as an
entirety or substantially as an entirety shall be a Corporation organized and existing under
the laws of the United States of America, any state thereof or the District of Columbia,
Bermuda or any member of the Organization for Economic Co-Operation and Development, and
shall expressly assume, by an indenture (or indentures, if at such time there is more than
one Trustee) supplemental hereto, executed by the successor Person and the Company and
delivered to the Trustee the performance of every obligation in this Indenture and the
Outstanding Securities on the part of the Guarantor to be performed or observed;




(2) immediately after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Guarantor or a Subsidiary as a result of such transaction
as having been incurred by the Guarantor or such Subsidiary at the time of such transaction,
no Event of Default or event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and




(3) either the Guarantor or the successor Person shall have delivered to the Trustee a
Guarantor’s Officer’s Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such transaction
have been complied with.



SECTION 9.4 Successor Person Substituted for Guarantor.



Upon any consolidation or amalgamation by the Guarantor with or merger of the Guarantor into
any other Person or any conveyance, transfer or lease of the properties and assets of the Guarantor
substantially as an entirety to any Person in accordance with Section 9.3, the successor Person
formed by such consolidation or amalgamation or into which the Guarantor is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Guarantor under this Indenture with the same effect as if such
successor Person had been named as the Guarantor herein; and thereafter, except in the case of a
lease, the predecessor Person shall be released from all obligations and covenants under this
Indenture and the Securities.



ARTICLE TEN




SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS




SECTION 10.1 Satisfaction and Discharge of Indenture.



(a) Satisfaction and Discharge. (i) If at any time (A) the Company or the Guarantor
shall have paid or caused to be paid the principal of, interest on and any Additional Amounts on
all the Securities of any Series Outstanding hereunder (other than Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (ii) the Company or the Guarantor shall have
delivered to the Trustee for cancellation all Securities of any Series theretofore authenticated
(other than any Securities of such Series which have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.9) or (iii)(A) all the Securities of such
Series not theretofore delivered to the Trustee for cancellation shall have become due and payable,
or 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 (B) the Company or the Guarantor shall have irrevocably deposited or caused to be
deposited with the Trustee as trust funds the entire amount in the Currency required (other than
moneys repaid by the Trustee or any Paying Agent to the Company or the Guarantor in accordance with
Section 10.4) or Government Obligations maturing as to principal and interest in such amounts and
at such times as will ensure the availability of cash sufficient, in the opinion of a firm of
independent certified public accountants, to pay at Maturity or upon redemption all Securities of
such Series (other than any Securities of such Series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.9) not theretofore
delivered to the Trustee for cancellation, including principal, interest due or to become due and
any Additional Amounts to such date of Maturity as the case may be, and if, in any such case, the
Company or the Guarantor shall also pay or cause to be paid all other sums payable hereunder by the
Company or the Guarantor with respect to Securities of such Series and the Guarantee in respect
thereof, then this Indenture shall cease to be of further effect with respect to Securities of such
Series (except as to (i) rights of registration of transfer and exchange, and the Company’s right
of optional redemption, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of Holders to receive payments of principal thereof and interest thereon
upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the
Holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and
immunities of the Trustee hereunder and (v) the rights of the Securityholders of such Series as
beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or
any of them), and, subject to Section 10.5, the Trustee, on demand of the Company accompanied by an
Officers’ Certificate, or on demand of the Guarantor accompanied by a Guarantor’s Officer’s
Certificate, and an Opinion of Counsel and at the cost and expense of the Company and the
Guarantor, shall execute proper instruments acknowledging such satisfaction of and discharging this
Indenture with respect to such Series; provided, that the rights of Holders of the Securities to
receive amounts in respect of principal of, interest on and any Additional Amounts with respect to,
the Securities held by them shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are listed. The Company and
the Guarantor each agree to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture, the Securities of such Series
and the Guarantee in respect thereof.



(b) Covenant Defeasance.




(i) On and after the date the conditions set forth in clause (ii) below are satisfied
(“covenant defeasance”), the Company and the Guarantor shall be released from its
obligations under Sections 3.4, 3.5, 3.6, 3.9, 9.1(c), and, to the extent specified pursuant
to Section 2.3 with respect to the Securities of a particular Series, any other covenant
applicable to such Series and Events of Default specified in Sections 5.1(d), (e) or (i).
For this purpose, such covenant defeasance means that, with respect to such Outstanding
Securities, the Company and the Guarantor may omit to comply with, and shall have no
liability in respect of, any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute an Event of Default under Section 5.1(c) or
otherwise, as the case may be, but, except as specified above, the remainder of this
Indenture, such Securities and the Guarantee in respect thereof shall be unaffected thereby.




(ii) The following shall be the conditions to application of clause (i) above to any
Outstanding Securities of or within a Series:




(A) The Company or the Guarantor shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the provisions of this Section 10.1(b)
applicable to it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities, (1) an amount in Dollars or in such Foreign
Currency in which such Securities are then specified as payable, or (2) Government
Obligations applicable to such Securities (determined on the basis of the Currency
in which such Securities are then specified as payable) which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of principal
of and interest, if any, on such Securities, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without consideration of
any reinvestment of such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and discharge,
(y) the principal of, interest on and any Additional Amounts on such Outstanding
Securities at the Maturity (which may be a Redemption Date) of such principal or
installment of principal or interest or any Additional Amounts and (z) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities on the days on which such payments are due and payable in accordance with
the terms of this Indenture, of such Securities and the Guarantee in respect
thereof;




(B) such covenant defeasance shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company or the Guarantor is a party or by which either of
them is bound (other than a default under this Indenture arising from the borrowing
of funds to make such deposit);




(C) no Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to such Securities shall have occurred
and be continuing on the date of such deposit and at any time during the period
ending on the 123rd day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such period);




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




(E) the Company or the Guarantor shall have delivered to the Trustee an Opinion
of Counsel to the effect that, after the 123rd day after the date of deposit, all
money and Government Obligations (including the proceeds thereof) deposited or
caused to be deposited with the Trustee (or other qualifying trustee) pursuant to
this clause (ii) to be held in trust will not be subject to any case or proceeding
(whether voluntary or involuntary) in respect of the Company or the Guarantor under
any Federal or State bankruptcy, insolvency, reorganization or other similar law, or
any decree or order for relief in respect of the Company or the Guarantor issued in
connection therewith;




(F) the Company or the Guarantor shall have delivered to the Trustee an
Officers’ Certificate or Guarantor’s Officer’s Certificate, as the case may be, and
an Opinion of Counsel, each stating that all conditions precedent to the covenant
defeasance under clause (b) of this Section 10.1 have been complied with; and




(G) notwithstanding any other provisions of this Section 10.1(b), such
defeasance shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company or the Guarantor in
connection therewith pursuant to Section 2.3.



(c) Legal Defeasance.




(i) On and after the date the conditions set forth in clause (ii) below are satisfied
(“legal defeasance”), the Company and the Guarantor shall be deemed to have been discharged
from its obligations with respect to the Securities of any Series and this Indenture with
respect to such Series. For this purpose, such legal defeasance means that the Company and
the Guarantor shall be deemed to have paid and discharged the entire Indebtedness
represented by such Outstanding Securities which shall thereafter be deemed to be
“Outstanding” only for the purposes of Section 10.1 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other obligations
under such Securities, the Guarantee in respect thereof and this Indenture insofar as such
Securities and the Guarantee in respect thereof are concerned (and the Trustee, at the
expense of the Company and the Guarantor shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities to receive, solely from
the trust fund described in clause (ii)(A) and as more fully set forth in such clause,
payments in respect of the principal of and interest, if any, on, and Additional Amounts, if
any, with respect to, such Securities when such payments are due, (ii) the obligations of
the Company, the Guarantor and the Trustee with respect to such Securities under Sections
2.8, 2.9 and 3.2 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 3.8 (but only to the extent that the Additional
Amounts payable with respect to such Securities exceed the amount deposited in respect of
such Additional Amounts pursuant to clause (ii)(A)), (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, (iv) the rights of optional redemption and
(v) this Article Ten.




(ii) The following shall be the conditions to application of clause (i) above to any
Outstanding Securities of or within a Series:




(A) The Company or the Guarantor shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the provisions of this Section 10.1(c)
applicable to it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities, (1) an amount in Dollars or in such Foreign
Currency in which such Securities are then specified as payable, or (2) Government
Obligations applicable to such Securities (determined on the basis of the Currency
in which such Securities are then specified as payable) which through the scheduled
payment of principal, interest and any Additional Amounts in respect thereof in
accordance with their terms will provide, not later than one day before the due date
of any payment of principal of and interest, if any, and any Additional Amounts, on
such Securities, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such principal
and interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (y) the principal of, interest on and any Additional
Amounts on such Outstanding Securities at the Maturity (which may be a Redemption
Date) of such principal or installment of principal or interest and any Additional
Amounts and (z) any mandatory sinking fund payments or analogous payments applicable
to such Outstanding Securities on the days on which such payments are due and
payable in accordance with the terms of this Indenture, of such Securities and the
Guarantee in respect thereof;




(B) such covenant defeasance shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company or the Guarantor is a party or by which either of
them is bound (other than a default under this Indenture arising from the borrowing
of funds to make such deposit);




(C) no Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to such Securities shall have occurred
and be continuing on the date of such deposit and at any time during the period
ending on the 123rd day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such period);




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




(E) the Company or the Guarantor shall have delivered to the Trustee an Opinion
of Counsel to the effect that, after the 123rd day after the date of deposit, all
money and Government Obligations (including the proceeds thereof) deposited or
caused to be deposited with the Trustee (or other qualifying trustee) pursuant to
this clause (ii) to be held in trust will not be subject to any case or proceeding
(whether voluntary or involuntary) in respect of the Company or the Guarantor under
any Federal or State bankruptcy, insolvency, reorganization or other similar law, or
any decree or order for relief in respect of the Company or the Guarantor issued in
connection therewith;




(F) the Company or the Guarantor shall have delivered to the Trustee an
Officers’ Certificate or a Guarantor’s Officer’s Certificate, as the case may be,
and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under clause (c) of this Section 10.1 have been complied with; and




(G) notwithstanding any other provisions of this Section 10.1(c), such
defeasance shall be effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company or the Guarantor in
connection therewith pursuant to Section 2.3.



SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities.
Subject to Section 10.4, all moneys deposited with the Trustee pursuant to Section 10.1 shall be
held in trust and applied by it to the payment, either directly or through any Paying Agent
(including the Company or the Guarantor acting as its own Paying Agent), to the Holders of the
particular Securities of such Series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent required by law.



SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any Series, all moneys
then held by any Paying Agent under the provisions of this Indenture with respect to such Series of
Securities shall, upon demand of the Company or the Guarantor, be repaid to it or paid to the
Trustee and thereupon such Paying Agent shall be released from all further liability with respect
to such moneys.



SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent. Any moneys
deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of or
interest on any Security of any Series and not applied but remaining unclaimed for two years after
the date upon which such principal, interest or any Additional Amounts shall have become due and
payable, shall, upon the written request of the Company or the Guarantor and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Company or the Guarantor, as the case may be, by the Trustee or such Paying Agent for
such Series, and the Holder of the Security of such Series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Company or the Guarantor, as the case may be, for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with respect to such
moneys shall thereupon cease.



SECTION 10.5 Reinstatement of Company’s and Guarantor’s Obligations. If the Trustee
is unable to apply any funds or Government Obligations in accordance with Section 10.1 by reason of
any legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application or by reason of the Trustee’s
inability to convert any such funds or Government Obligations into the Currency required to be paid
with respect to the Securities of such Series, the Company’s and the Guarantor’s obligations under
this Indenture and the Securities of any Series for which such application is prohibited shall be
revived and reinstated as if no deposit had occurred pursuant to Section 10.1 until such time as
the Trustee is permitted to apply all such funds or Government Obligations in accordance with
Section 10.1 or is able to convert all such funds or Government Obligations; provided, however,
that if the Company or the Guarantor has made any payment of interest on or principal of any of
such Securities because of the reinstatement of either of its obligations, the Company or the
Guarantor, as the case may be, shall be subrogated to the rights of the Securityholders of such
Securities to receive such payment from the funds or Government Obligations held by the Trustee.



SECTION 10.6 Payments in Foreign Currencies. Unless otherwise specified in or
pursuant to this Indenture or any Security, if, after a deposit referred to in 10.1 has been made,
(a) the Holder of a Security in respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other
than that in which the deposit pursuant to Section 10.1 has been made in respect of such Security,
or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant
to Section 10.1 has been made, the indebtedness represented by such Security shall be deemed to
have been, and will be, fully discharged and satisfied through the payment of the principal of, and
interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same
becomes due out of the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of such Security into
the Currency in which such Security becomes payable as a result of such election or Conversion
Event based on (x) in the case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to each payment date, or
(y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign
Currency in effect (as nearly as feasible) at the time of the Conversion Event.



SECTION 10.7 Indemnification Against Taxes. The Company and the Guarantor shall pay
and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section
10.7 and Section 10.1, the “Trustee”) against any tax, fee or other charge, imposed on or assessed
against the Government Obligations deposited pursuant to Section 10.1 or the principal or interest
received in respect thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities.



ARTICLE ELEVEN




MISCELLANEOUS PROVISIONS




SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Company and Guarantor
Exempt from Individual Liability. No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such or against any past, present or future
stockholder, member, partner, other owner of Capital Stock, officer or director, as such, of the
Company or the Guarantor or of any successor, either directly or through the Company, the Guarantor
or any successor, under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities.



SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall
give or be construed to give to any Person, firm or Corporation, other than the parties hereto, any
Paying Agent and their successors hereunder and the Holders of the Securities any legal or
equitable right, remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.



SECTION 11.3 Successors and Assigns of Company Bound by Indenture. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on behalf of each of the
Company and the Guarantor shall bind their respective successors and assigns, whether so expressed
or not.



SECTION 11.4 Notices and Demands on Company, the Guarantor, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee, by the Holders of Securities to or on the Company
or the Guarantor shall be in writing and shall be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until
another address of the Company or the Guarantor is filed by the Company or the Guarantor with the
Trustee) to Max USA Holdings Ltd., c/o Max Re Capital Ltd., Max Re House, 2 Front Street, Hamilton,
HM 12, Bermuda, Attention: General Counsel with a copy to the Chief Financial Officer. Any
notice, direction, request or demand by the Company or the Guarantor or any Securityholder to or
upon the Trustee shall be in writing and delivered in person, via facsimile or by postage pre-paid,
first-class mail and shall be deemed to have been sufficiently given or made, for all purposes, if
actually received at the Corporate Trust Office. Any facsimiles to the Trustee shall be sent to
fax number (212) 815-5802.



Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed by
first-class mail, postage prepaid to such Registered Holders as their names and addresses appear in
the Security Register within the time prescribed. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect
to other Holders, and any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given.



In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Company, the Guarantor and Securityholders when such notice is
required to be given pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.



SECTION 11.5 Officers’ Certificates and Opinions of Counsel; Statements to Be Contained
Therein. Upon any application or demand by the Company or the Guarantor to the Trustee to take
any action under any of the provisions of this Indenture, the Company or the Guarantor shall
furnish to the Trustee an Officers’ Certificate or Guarantor’s Officer’s Certificate, as the case
may be, 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, except that 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.



Each certificate or opinion provided for in this Indenture (except for the certificates
specified in Sections 3.9 and 3.10) and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a brief statement as to
the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that, in the opinion of such
person, such person has made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.



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



Any certificate, statement or opinion of an officer of the Company or the Guarantor or of
counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of
or representations by an accountant or firm of accountants in the employ of the Company or the
Guarantor, unless such officer or counsel, as the case may be, knows that the certificate or
opinion or representations with respect to the accounting matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.



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



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



Any certificate or opinion of any independent firm of public accountants filed with the
Trustee shall contain a statement that such firm is independent.



SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. Unless otherwise
specified in the certificate representing the Securities of a Series, the date of Maturity of
interest on or principal of the Securities of any Series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of interest or principal
need not be made on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of Maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.



SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939.
If this Indenture has been qualified under the Trust Indenture Act with respect to a particular
Series of Securities, and to the extent that any provision of this Indenture, with respect to said
Series of Securities, limits, qualifies or conflicts with another provision included in this
Indenture which is required to be included herein by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act, such required provision shall control with respect to such Series of
Securities.



SECTION 11.8 New York Law to Govern; Submission to Jurisdiction; Waiver of Trial by
Jury. This Indenture and each Security shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with the laws of such
State.



Each of the Company and the Guarantor submits to the jurisdiction of the courts of the State
of New York and the courts of the United States, in each case located in the Borough of Manhattan,
The City of New York and State of New York over any suit, action or proceeding arising under or in
connection with this Indenture or the transactions contemplated hereby or the Securities. Each of
the Company and the Guarantor waives any objection that it may have to the venue of any suit,
action or proceeding arising under or in connection with this Indenture or the transactions
contemplated hereby or the Securities in the courts of the State of New York or the courts of the
United States, in each case located in the Borough of Manhattan, The City of New York and State of
New York, or that such suit, action or proceeding brought in the courts of the State of New York or
the courts of the United States, in each case located in the Borough of Manhattan, The City of New
York and State of New York, was brought in an inconvenient court and agrees not to plead or claim
the same.



Each of the Company and Guarantor agrees that service of all writs, process and summonses in
any suit, action or proceeding arising under or in connection with this Indenture or the
transactions contemplated hereby or the Securities against the Company in any court of the State of
New York or any United States Federal court, in each case, sitting in the Borough of Manhattan,
City and State of New York, may be made upon the CT Corporation System at 111 Eighth Avenue, New
York, New York 10011, whom the Company irrevocably appoints as its authorized agent for service of
process. Each of the Company and the Guarantor represents and warrants that the CT Corporation
System has agreed to act as the Company’s and Guarantor’s agent for service of process. Each of
the Company and the Guarantor agrees that such appointment shall be irrevocable until the
irrevocable appointment by the Company and Guarantor of a successor in The City of New York as its
authorized agent for such purpose and the acceptance of such appointment by such successor. Each
of the Company and Guarantor further agrees to take any and all action, including the filing of any
and all documents and instruments that may be necessary to continue such appointment in full force
and effect as aforesaid. If the CT Corporation System shall cease to act as the agent for service
of process for the Company and the Guarantor, the Company and the Guarantor shall appoint without
delay, another such agent and provide prompt written notice to the Trustee of such appointment.



EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.



SECTION 11.9 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 11.10 Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.



SECTION 11.11 Determination of Principal Amount. In determining whether the Holders
of the requisite principal amount of outstanding Securities of any Series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, whether a quorum is present
at a meeting of Holders of Securities or whether sufficient funds are available for redemption or
for any other purpose, the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.1 and the principal amount of any Securities denominated in
a Foreign Currency that shall be deemed to be outstanding for such purposes shall be determined by
converting the Foreign Currency into Dollars at the Market Exchange Rate as of the date of such
determination.



ARTICLE TWELVE




REDEMPTION OF SECURITIES AND SINKING FUNDS




SECTION 12.1 Applicability of Article. The provisions of this Article shall be
applicable to the Securities of any Series which are redeemable before their Maturity or to any
sinking fund for the retirement of Securities of a Series except as otherwise specified as
contemplated by Section 2.3 for Securities of such Series.



SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Securities of any Series to be redeemed as a whole or in part at the option of the
Company shall be given by giving notice of such redemption as provided in Section 11.4, at least 30
days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities
of such Series. Failure to give notice by mail, or any defect in the notice to the Holder of any
Security of a Series designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such Series.



The notice of redemption to each such Holder shall identify the Securities to be redeemed
(including “CUSIP” or “ISIN” numbers), specify the date fixed for redemption, the redemption price,
the Place or Places of Payment, that payment will be made upon presentation and surrender of such
Securities, and that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue and that, if less than all of the Outstanding
Securities of a Series are to be redeemed, the identification and principal amount of the
Securities to be redeemed. If less than all of the Securities of any Series and to be redeemed,
the notice of redemption shall specify the numbers of the Securities of such Series to be redeemed.
In case any Security of a Series is to be redeemed in part, the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, 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.



The notice of redemption of Securities of any Series to be redeemed at the option of the
Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and
at the expense of the Company. The Company shall give the Trustee at least 45 days prior written
notice of any redemption hereunder (unless a shorter notice shall be satisfactory to the Trustee).



Not later than 11:00 a.m., New York time, on the Redemption Date specified in the notice of
redemption given as provided in this Section, the Company will have on deposit with the Trustee or
with one or more paying agents (or, if the Company is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 3.4) an amount of money in the currency in which
the Securities of such Series are payable (except as otherwise specified pursuant to Section 2.3
and except as provided in Sections 2.12(b), (d) and (e) of this Indenture) sufficient to redeem on
the Redemption Date all the Securities of such Series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for redemption. If less than
all the Outstanding Securities of a Series are to be redeemed, the Company will deliver to the
Trustee at least 60 days prior to the date fixed for redemption an Officers’ Certificate stating
the aggregate principal amount of Securities to be redeemed.



If less than all the Securities of a Series are to be redeemed, the Trustee shall select, in
such manner as it shall deem appropriate and fair, Securities of such Series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such Series or any multiple thereof. The Trustee shall promptly
notify the Company in writing of the Securities of such Series selected for redemption and, in the
case of any Securities of such Series selected for partial redemption, the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any Series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.



SECTION 12.3 Payment of Securities Called for Redemption. If notice of redemption has
been given as above provided, the Securities or portions of Securities 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, and on and after
said date (unless the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as provided in Sections 6.5
and 10.4, such Securities shall cease from and after the date fixed for redemption to be entitled
to any benefit or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified portions thereof shall
be paid and redeemed by the Company at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that any semi-annual payment of interest
on Securities becoming due on the date fixed for redemption shall be payable to the Holders of such
Securities registered as such on the relevant record date subject to the terms and provisions of
Section 2.4 hereof.



If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest borne by the Security.



Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Company, a new Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.



SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in a written statement signed by an Officer
of the Company and delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Company, (b) the Guarantor or (c) an entity specifically identified
in such written statement directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company.



SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of any sinking
fund payment provided for by the terms of Securities of any Series is herein referred to as a
“mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by
the terms of Securities of any Series is herein referred to as an “optional sinking fund payment.”
The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund
payment date.”



In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Series of Securities in cash, the Company or the Guarantor may at its option (a) deliver to the
Trustee Securities of such Series theretofore purchased or otherwise acquired (except upon
redemption pursuant to the mandatory sinking fund) by the Company or the Guarantor or receive
credit for Securities of such Series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Company or the Guarantor and delivered to the
Trustee for cancellation pursuant to Section 2.10, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company or the Guarantor
through any optional redemption provision contained in the terms of such Series. Securities so
delivered or credited shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.



On or before the forty-fifth day next preceding each sinking fund payment date for any Series
of Securities, the Company or the Guarantor will deliver to the Trustee a written statement (which
need not contain the statements required by Section 11.5) signed by an Officer of the Company or
the Guarantor, as the case may be, (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash in the currency in which the Securities of such Series are
payable (except as otherwise specified pursuant to Section 2.3 for the Securities of such Series
and except as provided in Section 2.12(b), (d) and (e) hereof), and the portion to be satisfied by
credit of Securities of such Series, (b) stating that none of the Securities of such Series has
theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such Series have occurred (which have not been waived or cured) and are
continuing, (d) stating whether or not the Company or the Guarantor, as the case may be, intends to
exercise its right to make an optional sinking fund payment with respect to such Series and, if so,
specifying the amount of such optional sinking fund payment which the Company or the Guarantor, as
the case may be, intends to pay on or before the next succeeding sinking fund payment date and (e)
specifying such sinking fund payment date. Any Securities of such Series to be credited and
required to be delivered to the Trustee in order for the Company or the Guarantor, as the case may
be, to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such
written statement (or reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Company and the Guarantor
shall become unconditionally obligated to make all the cash payments or payments therein referred
to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company or
the Guarantor, on or before any such sixtieth day, to deliver such written statement and Securities
specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as
of such date, the irrevocable election of the Company or the Guarantor (i) that the mandatory
sinking fund payment for such Series due on the next succeeding sinking fund payment date shall be
paid entirely in cash (in the currency described above) without the option to deliver or credit
Securities of such Series in respect thereof and (ii) that the Company or the Guarantor will make
no optional sinking fund payment with respect to such Series as provided in this Section.



If the sinking fund payment or payments (mandatory or optional or both) to be made in cash (in
the currency described above) on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $100,000, or the
equivalent in the currency in which the Securities of such Series are payable (or a lesser sum if
the Company or the Guarantor shall so request) with respect to the Securities of any particular
Series, such cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such Series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $100,000, or the equivalent in
the currency in which the Securities of such Series are payable, or less and the Company or the
Guarantor makes no such request then it shall be carried over until a sum in excess of $100,000, or
the equivalent in the currency in which the Securities of such Series are payable, is available.
The Trustee shall select, in the manner provided in Section 12.2, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such Series to absorb said cash,
as nearly as may be possible, and shall (if requested in writing by the Company or the Guarantor)
inform the Company or the Guarantor of the serial numbers of the Securities of such Series (or
portions thereof) so selected. Securities of any Series which are identified by registration and
certificate number in an Officers’ Certificate at least 60 days prior to the sinking fund payment
date as being beneficially owned by, and not pledged or hypothecated by, the Company, the Guarantor
or an entity directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company or the Guarantor shall be excluded from Securities of such Series eligible
for selection for redemption. The Trustee, in the name and at the expense of the Company or the
Guarantor (or the Company or the Guarantor, if it shall so notify the Trustee in writing) shall
cause notice of redemption of the Securities of such Series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section 12.3) for the redemption of
Securities of such Series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such Series shall be added
to the next cash sinking fund payment for such Series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on
the Stated Maturity date of the Securities of any particular Series (or earlier, if such Maturity
is accelerated), which are not held for the payment or redemption of particular Securities of such
Series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to
the payment of the principal of, and interest on, the Securities of such Series at Maturity.



The Trustee shall not convert any currency in which the Securities of such Series are payable
for the purposes of such sinking fund application unless specifically requested to do so by the
Company or the Guarantor, and any such conversion agreed to by the Trustee in response to such
request shall be for the account and at the expense of the Company or the Guarantor and shall not
affect the Company’s or the Guarantor’s obligation to pay the Holders in the currency to which such
Holder may be entitled.



Not later than 9:00 a.m., New York time, on the sinking fund payment date, the Company or the
Guarantor shall have paid to the Trustee in cash (in the currency described in the third paragraph
of this Section 12.5) or shall otherwise provide for the payment of all interest accrued to the
date fixed for redemption on Securities to be redeemed on the next following sinking fund payment
date.



The Trustee shall not redeem or cause to be redeemed any Securities of a Series with sinking
fund moneys or mail or publish any notice of redemption of Securities for such Series by operation
of the sinking fund during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the mailing or publication of notice of redemption of
any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company or the Guarantor a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such
Series at the time when any such Event of Default shall occur, and any moneys thereafter paid into
the sinking fund, shall, during the continuance of such Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In case such Event
of Default shall have been waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter be
applied on the next succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.



SECTION 12.6 Repayment at the Option of the Holders. Securities of any Series which
are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such Series.



The repayment of any principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their Stated Maturity, for purposes of Section 10.1, shall
not operate as a payment, redemption or satisfaction of the indebtedness represented by such
Securities unless and until the Company or the Guarantor, at its option, shall deliver or surrender
the same to the Trustee with a directive that such Securities be cancelled.



SECTION 12.7 Optional Redemption For Tax Reasons. The Company shall be entitled to
redeem all, but not part, of the Securities of any Series if as a result of any change in or
amendment to the laws, regulations or rulings of the Relevant Tax Jurisdiction or any change in the
official application or interpretation of such laws, regulations or rulings, or any change in the
official application or interpretation of, or any execution of or amendment to, any treaty or
treaties affecting taxation to which such Relevant Tax Jurisdiction is a party (a “Change in Tax
Law”), the Payor is or would be required on the occasion of the next payment of principal or
interest in respect of the Securities of such Series to pay Additional Amounts pursuant to Section 
and the payment of such Additional Amounts cannot be avoided by the use of any reasonable measures
available to the Payor. The Change in Tax Law must become effective on or after the original issue
date with respect to the Securities of such Series. Notwithstanding anything to the contrary
contained in this Article XII, the Company must (i) deliver to the trustee at least 30 days before
the redemption date an Officers’ Certificate and an opinion of independent legal counsel of
recognized standing to the effect that the Payor has or will become obligated to pay Additional
Amounts as a result of such Change in Tax Law and (ii) provide the holders with notice of the
intended redemption at least 30 days and no more than 60 days before the redemption date. The
redemption price will equal the principal amount of the Securities of such Series plus accrued
interest to the redemption date.



ARTICLE THIRTEEN




GUARANTEE AND INDEMNITY




SECTION 13.1 The Guarantee.



(a) The Guarantor hereby unconditionally guarantees to each Holder of a Security authenticated
and delivered by the Trustee the due and punctual payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to such Security and the due and punctual
payment of the sinking fund payments (if any) provided for pursuant to the terms of such Security,
when and as the same shall become due and payable, whether at Maturity, by acceleration,
redemption, repayment or otherwise, in accordance with the terms of such Security and of this
Indenture. In case of the failure of the Company punctually to pay any such principal, premium,
interest, Additional Amounts or sinking fund payment, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable, whether at
Maturity, upon acceleration, redemption, repayment or otherwise, and as if such payment were made
by the Company. The aforesaid Guarantee is one of payment and not of collection.



(b) The Guarantor’s obligations hereunder shall rank pari passu with all other senior
unsecured debt obligations of the Guarantor (other than any obligations preferred by statute or by
operation of law).



(c) The Guarantor’s obligation under Section 13.1(a) shall terminate if and when the Company
ceases to be a subsidiary of the Guarantor; provided, however, that immediately prior to such
termination, the Guarantor shall automatically assume, without any action by the Holders or the
Trustee or any further action on behalf of the Guarantor, the due and punctual payment of the
principal of, any premium and interest on and any Additional Amounts with respect to all the
Securities and the performance of every obligation in this Indenture and the Outstanding Securities
on the part of the Company to be performed or observed with the same effect as if the Guarantor
had been named as an issuer herein. Upon such an assumption, the Guarantor shall execute a
supplemental indenture evidencing its assumption of all such rights and obligations of the Company,
and the Company shall be released from its liabilities hereunder and under such Securities as
obligor on the Securities of such Series.



(d) The Guarantor may, without the consent of the Holders, assume all of the rights and
obligations of the Company hereunder with respect to a Series of Securities and under the
Securities of such Series if, after giving effect to such assumption, no Event of Default or event
which with the giving of notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing. Upon such an assumption, the Guarantor shall execute a
supplemental indenture evidencing its assumption of all such rights and obligations of the Company
and the Company shall be released from its liabilities hereunder and under such Securities as
obligor on the Securities of such Series.



(e) The Guarantor shall assume all of the rights and obligations of the Company hereunder with
respect to a Series of Securities and under the Securities of such Series if, upon a default by the
Company in the due and punctual payment of the principal of, any premium and interest on and any
Additional Amounts with respect to all such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 13.1(a) with respect to
such Series of Securities. Such assumption shall result in the Securities of such Series becoming
the direct obligations of the Guarantor and shall be effected without the consent of the Holders of
the Securities of any Series. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the Company, and the
Company shall be released from its liabilities hereunder and under such Securities as obligor on
the Securities of such Series.



SECTION 13.2 Guarantee Unconditional, etc. The Guarantor hereby agrees that its
obligations hereunder shall be as principal and not merely as surety, and shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Security or this Indenture, any failure to enforce the
provisions of any Security or this Indenture, or any waiver, modification, consent or indulgence
granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any
judgment against the Company or any action to enforce the same, or any other circumstances which
may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event
of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to any such Security or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except
by payment in full of the principal of, any premium and interest on, and any Additional Amounts and
sinking fund payments required with respect to, the Securities and the complete performance of all
other obligations contained in the Securities. The Guarantor further agrees, to the fullest extent
that it lawfully may do so, that, as between the Guarantor, on the one hand, and the Holders and
the Trustee, on the other hand, the Maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 5.1 hereof for the purposes of this Guarantee, notwithstanding
any stay, injunction or prohibition extant under any bankruptcy, insolvency, reorganization or
other similar law of any jurisdiction preventing such acceleration in respect of the obligations
guaranteed hereby.



SECTION 13.3 Reinstatement. This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment on any Security, in whole or in part, is
rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy,
liquidation or reorganization of the Company or otherwise.



SECTION 13.4 Subrogation. The Guarantor shall be subrogated to all rights of the
Holder of any Security against the Company in respect of any amounts paid to such Holder by the
Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall
not be entitled to enforce, or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, any premium and interest on, and any Additional Amounts and
sinking fund payments required with respect to, all Securities shall have been paid in full.



SECTION 13.5 Indemnity. As a separate and alternative stipulation, the Guarantor
unconditionally and irrevocably agrees that any sum expressed to be payable by the Company under
this Indenture, the Securities but which is for any reason (whether or not now known or becoming
known to the Company, the Guarantor, the Trustee or any Holder of any Security) not recoverable
from the Guarantor on the basis of a guarantee will nevertheless be recoverable from it as if it
were the sole principal debtor and will be paid by it to the Trustee on demand. This indemnity
constitutes a separate and independent obligation from the other obligations in this Indenture,
gives rise to a separate and independent cause of action and will apply irrespective of any
indulgence granted by the Trustee or any Holder of any Security.



[signature page follows]






2






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




MAX USA HOLDINGS LTD.,




as Issuer




By:     

Name:

Title:





MAX RE CAPITAL LTD.,




as Guarantor




By:     

Name:

Title:




3




THE BANK OF NEW YORK,




as Trustee




By:     

Name:

Title:




4




EXHIBIT A




FORM OF CERTIFICATE OF TRANSFER




Max Re USA Holdings Ltd.


[     ]


[     ]


Attention: General Counsel



The Bank of New York


[     ]


[     ]


Attention: Corporate Trust Administration



Re: [Description of Series]



Reference is hereby made to the Indenture, dated as of April      , 2007 (the “Indenture”),
between Max Re USA Holdings Ltd., as issuer (the “Company”), Max Re Capital Ltd., as Guarantor and
The Bank of New York, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.



     , (the “Transferor”) owns and proposes to transfer the Security[ies] or
interest in such Security[ies] specified in Annex A hereto, in the principal amount of $     
in such Security[ies] or interests (the “Transfer”), to      (the
“Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:



[CHECK ALL THAT APPLY]




1. [ ] Check if Transferee will take delivery of a beneficial interest in the 144A Global
Security or a Definitive Security Pursuant to Rule 144A. The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the Transferor reasonably
believed and believes is purchasing the beneficial interest or Definitive Security for its own
account, or for one or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a “qualified institutional buyer” within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global Security and/or the
Definitive Security and in the Indenture and the Securities Act.



2. [ ] Check if Transferee will take delivery of a beneficial interest in the Regulation S
Global Security or a Definitive Security pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order was originated, the Transferee was outside the
United States or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and neither such Transferor
nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention of the requirements
of Rule 903(b) or Rule 904(a) of Regulation S under the Securities Act, and (iii) the transaction
is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Security,
the temporary Regulation S Global Security and/or the Definitive Security and in the Indenture and
the Securities Act.



3. [ ] Check and complete if Transferee will take delivery of a beneficial interest in a
Definitive Security pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act and any applicable blue sky
securities laws of any state of the United States, and accordingly the Transferor hereby further
certifies that (check one):



(a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;




or



(b) [ ] such Transfer is being effected to the Company or a subsidiary thereof;




or



(c) [ ] such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery requirements of the
Securities Act.



4. [ ] Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Security or of an Unrestricted Definitive Security.



(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities, on Restricted Definitive Securities and in the Indenture.



(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Security will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities, on Restricted Definitive Securities and in the Indenture.



(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Securities or
Restricted Definitive Securities and in the Indenture.



This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Guarantor.




[Insert Name of Transferor]




By:

Name:

Title:





Dated:



5



ANNEX A TO CERTIFICATE OF TRANSFER




1. The Transferor owns and proposes to transfer the following:




[CHECK ONE OF (a) OR (b)]



(a) [ ] a beneficial interest in the:




(i) [ ] 144A Global Security (CUSIP      ), or




(ii) [ ] Regulation S Global Security (CUSIP      ), or



(b) [ ] a Restricted Definitive Security.



2. After the Transfer the Transferee will hold:




[CHECK ONE OF (a), (b) OR (c)]



(a) [ ] a beneficial interest in the:




(i) [ ] 144A Global Security (CUSIP      ), or




(ii) [ ] Regulation S Global Security (CUSIP      ), or




(ii) [ ] Unrestricted Global Security (CUSIP      ); or



(b) [ ] a Restricted Definitive Security; or



(c) [ ] an Unrestricted Definitive Security,



in accordance with the terms of the Indenture.



6




EXHIBIT B




FORM OF CERTIFICATE OF EXCHANGE




Max Re USA Holdings Ltd.


[     ]


[     ]


Attention: General Counsel



The Bank of New York



[     ]



[     ]



Attention: Corporate Trust Administration



Re: [Description of Series]



Reference is hereby made to the Indenture, dated as of April      , 2007 (the “Indenture”),
between Max Re USA Holdings Ltd.., as issuer (the “Company”), Max Re Capital Ltd., as Guarantor and
The Bank of New York, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.



     , (the “Owner”) owns and proposes to exchange the Security[ies] or
interest in such Security[ies] specified herein, in the principal amount of $     in such
Security[ies] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby
certifies that:



1. [ ] Exchange of Restricted Definitive Securities or Beneficial Interests in a Restricted
Global Security for Unrestricted Definitive Securities or Beneficial Interests in an Unrestricted
Global Security



(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Security for a beneficial interest in an
Unrestricted Global Security in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Security and pursuant to and in accordance with the United States Securities Act
of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted Global Security is being
acquired in compliance with any applicable blue sky securities laws of any state of the United
States.



(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
UNRESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Security for an Unrestricted Definitive Security, the Owner hereby
certifies (i) the Unrestricted Definitive Security is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Security and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Security is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.



(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY. In connection with the Owner’s Exchange of a Restricted Definitive
Security for a beneficial interest in an Unrestricted Global Security, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Securities and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
is being acquired in compliance with any applicable blue sky securities laws of any state of the
United States.



(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO UNRESTRICTED DEFINITIVE
SECURITY. In connection with the Owner’s Exchange of a Restricted Definitive Security for an
Unrestricted Definitive Security, the Owner hereby certifies (i) the Unrestricted Definitive
Security is being acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Security is being
acquired in compliance with any applicable blue sky securities laws of any state of the United
States.



2. Exchange of Restricted Definitive Securities or Beneficial Interests in Restricted Global
Securities for Restricted Definitive Securities or Beneficial Interests in Restricted Global
Securities



(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
RESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Security for a Restricted Definitive Security with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Security is being acquired for
the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Security issued will continue to be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Security and in the Indenture and the Securities Act.



(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Owner’s Restricted Definitive
Security for a beneficial interest in the [CIRCLE ONE] 144A Global Security or Regulation S Global
Security with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted Definitive
Security and pursuant to and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued
will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Restricted Global Security and in the Indenture and the Securities Act.



This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Guarantor.



[Insert Name of Transferor]



By:

Name:

Title:




Dated:




7